dismissed EB-3 Case: Trucking

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-B-G-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 29, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a general freight trucking company, seeks to employ the Beneficiary as a master 
mechanic. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant category. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based "EB-3" 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 Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its ability to pay the proffered wage from the priority date of the petition onward. The 
Director found that the tax return of another corporation owned by the same individual who owns the 
Petitioner could not be considered in determining the Petitioner's ability to pay the proffered wage. 
On appeal the Petitioner asserts that the tax returns it provided are for two inter-related entities 
wholly owned by the same individual, that each entity is involved in the business that employs the 
Beneficiary, and that the combined financial resources of the two companies should be considered in 
determining the Petitioner's 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 obtains 
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. § l 182(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 U.S. workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, 
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. 
Matter of C-B-G-, Inc. 
To be eligible for the classification requested for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated in the labor certification. As provided in the 
regulation at 8 e.F.R. § 204.5(g)(2): 
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 repmts, federal tax returns, 
or audited financial statements. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a statement from a 
financial officer of the organization which establishes the prospective employer's 
ability to pay the proffered wage. In appropriate cases, additional evidence, such as 
profit/loss statements, bank account records, or personnel records, may be submitted 
by the petitioner or requested by [USeIS]. 
II. ABILITY TO PAY 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage from the priority date 1 of the petition onward. The priority date in this case is 
September 20, 2017. The labor certification states that the wage offered for the job of master 
mechanic is $54,579 per year. 
In determining a petitioner's ability to pay the proffered wage, users first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 e.F .R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. In this case, although the Petitioner claims to have 
employed the Beneficiary since September 2016, no evidence has been submitted of any wages paid 
since then. Therefore, the Petitioner has not established its continuing ability to pay the proffered 
wage from the priority date onward based on wages paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, users will examine the net income and net current 
assets figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited 
financial statements(s). If either of these figures, net income or net current assets, equals or exceeds 
the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, the petitioner would ordinarily be considered able to pay the proffered 
wage during that year. 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.S(d). A petitioner must establish that it meets all the eligibility requirements for the immigration benefit it seeks 
by the priority date. 
2 
Matter of C-B-G-, Inc. 
The record includes a copy of the Petitioner's federal income tax returns, Form 1120S for 2017. If 
an S corporation, like the Petitioner, has income exclusively from a trade or business, USCIS 
considers its net income (or loss) to be the figure for "Ordinary business income (loss)" on page 1, 
line 21, of the Form 1120S. However, if there are relevant entries for additional income, credits, 
deductions or other adjustments from sources other than a trade or business, they are reported on 
Schedule K of the Form l l 20S, and the corporation's net income or loss will be found in line 18 of 
Schedule K ("Income/loss reconciliation"). In 2017 the Petitioner had a net loss of $32,899. Net 
current assets ( or liabilities) are determined by calculating the difference between current assets and 
current liabilities, as recorded in lines 1-6 and lines 16-18 of Schedule K. In this case the 
Petitioner's current liabilities exceeded its current assets in 201 7, resulting in net current liabilities of 
$166,778. Thus, the Petitioner has not established its ability to pay the proffered wage based on 
either net income or net current assets from the priority date onward. 
On appeal the Petitioner asserts that the financial resources of a second trucking company which, 
like the Petitioner is wholly owned by I I should be taken into consideration in 
determining the Petitioner's ability to pay the proffered wage. The record indicates that the 
Petitioner was incorporated in 2003 and was certified for the U.S. Department of Transportation 
(DOT)'s Disadvantaged Business Enterprise (DBE) program. The Petitioner states that "due to 
insurance requirements" it began in April 2017 a multi-year transition of its business and DBE 
certification to a new business entity,....._ __________ ___, which had been incorporated in 
02016. Documentation in the record shows that an application for "DBE Annual Update" was 
submitted by '....._ _______ __. DBAI O I on I I 2018, and approved 
the following day by the Colorado Department of Transportation. Further documentation from the 
Federal Motor Carrier Safety Administration (FMCSA), dated September 13, 2018, recorded the 
operating status of the Petitioner as "not authorized" and the operating status ofl I as "active." 
However, the Petitioner remains in existence as evidenced by a Certificate of Fact of Good Standing 
issued by the Secretary of State of the State of Colorado on October 1, 2018. 
According to the Petitioner, the foregoing documentation shows that the Petitioner and I lwere 
in a "symbiotic relationship" during the transition period and that their combined financial resources 
should be considered in our ability to pay determination. The Petitioner submits a compilation 
report with combined financial statements from its certified public accountant (CPA) for the 
calendar year 201 7, according to which the two companies together had a net income of 
$221,043.58. 2 
2 Even if we accepted the premise that the combined financial resources of the two companies should be considered, the 
regulation at 8 C.F.R. § 204.5(g)(2) makes clear that when 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 submitted on appeal are not persuasive evidence. 
The accountant's report that accompanied the financial statements clearly indicates that they were produced pursuant to a 
compilation rather than an audit. The accountant's report also states that the financial statements produced pursuant to 
the compilation are the representations of management, that they were prepared in accordance with the modified cash 
basis of accounting, and that management omitted substantially all of the disclosures ordinarily included in financial 
3 
Matter of C-B-G-, Inc. 
In support of that argument, the Petitioner submitted the 2017 federal income tax return, Form 
l 120S, for I ~ It recorded net income of $228,271 in line 18 of Schedule K, and net current 
assets of $441 in lines 1-6 and 16-18 of Schedule L. The Director found that because I I was a 
separate and distinct legal entity from the Petitioner, it had no legal obligation to utilize its own 
resources to pay the Petitioner's proffered wage obligation to the Beneficiary, citing Matter of 
Aphrodite Investments, Ltd., 17 I&N Dec. 350 (Comm'r 1980); and Sitar v. Ashcroft, 2003 WL 
22203713 (D.Mass. Sept. 18, 2003). The Petitioner contends on appeal that because both companies 
are wholly owned by I hthe owner's intention to employ the Beneficiary has not 
changed during the transition to I J and the nature of the job offered has remained the same 
during the transition to I l it is proper to consider the financial resources of both companies, in 
particular their tax returns, in our ability to pay determination. 
As noted by the Director, the Petitioner is a separate and distinct legal entity from both its owner and 
the related company. The financial resources of those other companies or individuals will not be 
considered because "nothing in the governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to 
consider the financial resources of individuals or entities who have no legal obligation to pay the 
wage." Sitar v. Ashcroft, 2003 WL 22203713. Accordingly, we will only consider the financial 
information of the Petitioner. 
On appeal the Petitioner requests that we consider the totality of its circumstances, as set forth in 
Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967), in determining its ability to pay the 
proffered wage. Per Matter of Sonegawa USCIS may, at its discretion, consider evidence relevant to 
the petitioner's financial ability that falls outside of its net income and net current assets. We 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 petitioner's reputation within its industry, the 
overall number of employees, whether the beneficiary is replacing a former employee or an 
outsourced service, the amount of compensation paid to officers, the occurrence of any 
uncharacteristic business expenditures or losses, and any other evidence that USCIS deems relevant 
to the petitioner's ability to pay the proffered wage. 
The Petitioner states that it has been in business since 2001 and had 28 employees at the time its 
petition was filed in 2018. The Petitioner indicates that the job offered is not a new position in the 
company, but has not explained whether that is because the Beneficiary has already been working in 
the job since September 2016 (though there is no documentary evidence of any wages paid to him) 
or because the Beneficiary is, or will be, replacing another employee. There is little evidence in the 
record of the Petitioner's business history, and none concerning its reputation within the tiucking 
industry. According to its tax returns for 2016 and 201 7, the Petitioner had gross receipts of just 
statements prepared in accordance with this basis of accounting. The unsupported representations of management are 
not reliable evidence and are insufficient to demonstrate the ability to pay the proffered wage. 
4 
Matter of C-B-G-, Inc. 
over $1.5 million in 2016, and none in 2017. In short, the evidence does not support a finding that 
the totality of its circumstances shows the Petitioner's ability to pay the proffered wage. 
III. SUCCESSOR-IN-INTEREST 
With its appeal the Petitioner submits a new Form I-140 in the name of I I "in the event that 
~termine that this com any] is a more suitable petitioner given the transition ofl I 
L__J Inc. into ....._ ____ .--_____ ____. Inc. as the operating entity." If the Petitioner no longer intends to 
offer the Beneficiary t e pos1t10n described on the labor certification, it would need to demonstrate the 
existence of a successor entity. Othe1wise, the labor ce1iification would not be valid and that alone 
would be ground for denial. See 20 C.F.R. § 656.30(c). 
Sincel lis a different entity than the labor certification employer, it must be established that it 
is a successor-in-interest to the Petitioner in order to make use of the labor certification. See Matter 
of Dial Auto Repair Shop. Inc., 19 I&N Dec. 481 (Comm'r 1986). A valid successor relationship may 
be established for immigration purposes if it satisfies three conditions. First, the successor must fully 
describe and document the transaction transferring ownership of all, or a relevant part of, the 
predecessor. Second, the successor must demonstrate that the job opportunity is the same as originally 
offered on the labor certification. Third, the successor must prove by a preponderance of the evidence 
that it is eligible for the immigrant visa in all respects. 
Here, the evidence in the record does not satisfy all three conditions described above. Specifically, the 
evidence does not satisfy the first condition because it does not fully describe and document the 
transaction transferring ownership of the predecessor to the successor. While the documentation of 
record does appear to indicate a merging of functions between the Petitioner and I I it does not 
show the end result of this process or that I I has taken over the Petitioner's operations. The 
Petitioner has not submitted any document between the Petitioner and I !which describes what 
assets, operations, and obligations are being transferred from the Petitioner to I I when that 
process will be complete, and what will remain of the Petitioner, if anything, when the process is 
complete. Furthermore, it is unclear as to which entity now intends to employ the Beneficiary. 
Since the Petitioner has not fully described and documented the transaction transferring ownership 
of the Petitioner tol lwe cannot find that a successor-in-interest relationship exists between 
those two entities. If the Petitioner were to fully document the transaction transferring ownership 
and show that I I acquired the essential rights and obligations of the Petitioner, we would then 
also evaluate the ability ofl Ito pay the proffered wage. However, we would not combine the 
two entities' financial information. Rather we would examine each entity's ability to pay separately, 
the Petitioner's up to the point of the succession andl b after the point of succession. In any 
future filing in this matter, the Petitioner must clarify whether it is claiming! las a successor­
in-interest or whether the Petitioner continues to exist in its own right and continues to intend to 
employ the Beneficiary in the offered position. 
5 
Matter of C-B-G-, Inc. 
IV. CONCLUSION 
The Petitioner has not established its ability to pay the proffered wage from the priority date onward. 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-B-G-, Inc., ID# 4250444 (AAO May 29, 2019) 
6