dismissed EB-3 Case: Travel Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 2001 T-NT-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY5,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a travel services business, seeks to employ the Beneficiary' as a manager of flight 
reservations. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 
8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, tha~ the Petitioner had the ability to pay the proffered wage to the Beneficiary. 
On appeal, the Petitioner states that it has the ability to pay the proffered wage. Upon de novo 
review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain an approved labor certification from the U.S. Department of Labor (DOL). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the 
DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available 
for the offered position and that employing a foreign national in the position will not adversely affect 
the wages and working conditions · of domestic workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(11) of the Act. Second, the employer may file an immigrant visa petition with 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. 
Thin;l, if USCIS approves the petition, the foreign national may apply for an immigrant visa abroad 
or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
1 We note that the case involves the substitution of a beneficiary on the labor certification. Substitution of beneficiaries 
was permitted by the DOL at the time of filing this petition. On May 17, 2007, the DOL issued a final rule prohibiting 
the substitution of beneficiaries on labor certifications effective July 16, 2007. See 72 Fed. Reg. 27904 (codified at 
20 C.F.R. § 656). As the filing of the instant petition predates the final rule, and since another beneficiary has not been 
issued lawful permanent residence based on the labor certification, the requested substitution will be permitted. 
Matter of2001T-NT-, Inc. 
II. ANALYSIS 
A petitioner must establish that its job offer to the beneficiary is a realistic one. The petitioner's ability 
to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See 
Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). 
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petitiOn filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In this case; the labor certification was accepted on April 23, 2001, the priority date. The proffered 
wage as stated on the labor certification is $36,775 per year. 
In determining a petitioner's ability to pay the proffered wage during a given period, USCIS requires 
the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, 
although the totality of the circumstances affecting the petitioning business will be considered if the 
evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 
1967). USCIS will first examine whether the petitioner employed and paid the beneficiary during 
that period. If the petitioner establishes by documentary evidence that it employed the beneficiary at 
a salary equal to or greater than the proffered wage, the evidence will be considered as proof of the 
petitioner's ability to pay the proffered wage. Here, the Petitioner did not employ or pay the 
Beneficiary any wages from 2001 through 2007. The record reflects that the Petitioner employed 
and paid the Beneficiary $36,775 in 2008, which exceeds the proffered wage. At issue here is 
whether the Petitioner had the ability to pay the proffered wage from 2001 through 2007. 
If a petitioner does not establish that it employed and paid the beneficiary an amount at least equal to 
the proffered wage during that period, USCIS will next examine the net income figure reflected on 
the petitioner's federal income tax return, 2 without consideration of depreciation or other expenses. 
River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco Especial v. Napolitano, 
696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). For a C 
corporation like the Petitioner, USCIS considers net income to be the figure shown on Line 28 of the 
IRS Form 1120, U.S. Corporation Income Tax Return. 
2 
Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)). 
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Matter of2001T-NT-, Inc. 
The Petitioner's tax returns demonstrate its net income for 2001 through 2007 as shown below. 
• In 2001, the Form 1120 stated net income of$4,335. 
• In 2002, the Form 1120 stated net income of$4,495. 
• In 2003, the Form 1120 stated net income of -$8,669. 
• In 2004, the Form 1120 stated net income of$1,862. 
• In 2005, the Form 1120 stated net income of$2,212. 
• In 2006, the form 1120 stated net income of$1,352. 
• In 2007, the Form 1120 stated net income of$2,205. 
Therefore, for 2001 through 2007, the Petitioner did not have sufficient net income to pay the 
proffered wage. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USC IS may 
review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities.3 A corporation's year-end current assets are shown 
on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. 
If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if 
any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage using those net current assets. The Petitioner's tax returns demonstrate its end-of­
year net current assets for 2001 through 2007, as shown below. 
• In 2001, the Form 1120 stated net current assets of$27,230. 
• In 2002; the Form 1120 stated net current assets of$28,150. 
• In 2003, the Form 1120 stated net current assets of$19,481. 
• In 2004, the Form 1120 stated net current assets of$26,075. 
• In 2005, the Form 1120 stated net current assets of$31,069. 
• In 2006, the Form 1120 stated net current assets of$28,126. 
• In 2007, the Form 1120 stated net current assets of$23,260. 
Thus, for 2001 through 2007, the Petitioner did not have sufficient net current assets to pay the 
proffered wage. The Petitioner has also asserted that USCIS should prorate the proffered wage in 
the year of the priority date to consider only the wages that should have been paid ftom 
April23, 2001, through December 31, 2001. USCIS will prorate the proffered wage only if the 
record contains evidence of payment of the beneficiary's wages specifically covering the portion of 
the year that occurred after the priority date and evidence of income that was earned during the 
period in question (and only that period). The Petitioner has not submitted evidence to support 
prorating in the year of the priority date. 
3 According to Barron's Dictionary of Accounting Terms 117 (3d ed. 2000), "current assets" consist of items having (in 
most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). /d. at 118. 
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Matter of2001T-NT-, Inc. 
Therefore, from the date the labor certification was accepted for processing by the DOL, the 
Petitioner has not established that it had the continuing ability to pay the Beneficiary the proffered 
wage as of the priority date through an examination of wages paid to the Beneficiary, or its net 
income or net current assets. 
On appeal, the Petitioner states that the Director erred in not considering its bank account statements. 
We do not find that the Petitioner's bank account statements demonstrate its ability to pay the 
proffered wage. First, bank statements are not among the three types of evidence, enumerated in 
8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While 
this regulation allows additional material "in appropriate cases," the Petitioner in this case has not 
demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise 
provides an inaccurate financial picture of the petitioner. Second, bank statements show the amount 
in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. 
Third, no evidence was submitted to demonstrate that the funds reported on the petitioner's bank 
statements somehow reflect additionalavailable funds that were not reflected on its tax return(s), 
such as the petitioner's taxable income (income minus deductions) or the cash specified on Schedule 
L that was addressed above in determining the petitioner's net current assets. 
The Petitioner also urges consideration of a letter from_ the Petitioner's accountant who has compiled 
a Statement of Assets, Liabilities & Equity for 2002, 2003, 2004, 2005, 2006, and 2007. The 
regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements 
to demonstrate its ability to pay the proffered wage, those financial statements must be audited. An 
audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable 
assurance that the financial statements of the business are free of material misstatements. The 
unaudited financial statements that counsel submitted with the petition are not persuasive evidence. 
The accountant's report that accompanied those financial statements makes clear that they were 
produced pursuant to a compilation rather than an audit. As the accountant's report also makes 
clear, financial statements produced pursuant to a compilation are the representations of 
management compiled into standard form. The unsupported representations of management are not 
reliable evidence and are insufficient to demonstrate the ability to pay the proffered wage. 
Therefore, the accountant's compiled financial statements a~e not sufficient to establish the 
Petitioner's ability to pay the proffered wage. 
USCIS may consider the overall magnitude of the petitioner's business activities in its determination 
of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. at 612. 
As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioner's 
financial ability that falls outside of a petitioner's net income and net current assets. USCIS may 
consider such factors as the number of years the petitioner has been doing business, the established 
historical growth of the petitioner's business, the overall number of employees, the occurrence of 
any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, 
whether the beneficiary is replacing a former employee or an outsourced service, or any other 
evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
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Matter of2001T-NT-, Inc. 
In this case, the Form I-140 states that the Petitioner has been in business since 1995. As indicated 
above, the Petitioner's tax returns state amounts of net income and net current assets that were less 
than the proffered wage of$36,775, and which remained consistently low, from 2001 through 2007. 
The Petitioner has not provided evidence that would establish uncharacteristic business expenses 
during this period of time, and the consistency in the figures of net income and net current assets 
during this time tends to show that the Petitioner did not likely experience unexpected expenses. 
The Petitioner states that the wages paid to the Beneficiary's husband, who was initially included on 
the labor certification, should be considered toward the ability to pay the proffered wage because the 
Beneficiary was substituted for him. In general, wages already paid to others are not available to 
prove the ability to pay the wage proffered to the beneficiary at the priority date of the petition and 
continuing to the present. Even if we were to consider these wages toward the ability to pay the 
proffered wage, these wages are not sufficient to pay the proffered wage for 2001, 2002, and 2003 
when added to Petitioner's net current assets for these years. 
III. CONCLUSION 
The record does not establish that the Petitioner had the ability to pay the proffered wage to the 
Beneficiary from the priority date onward. 
ORDER: The appeal is dismissed. 
. Cite as Matter of2001T-NT-, Inc., ID# 325698 (AAO May 5, 2017) 
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