remanded EB-3 Case: Consumer Goods

U.S. Citizenship 
and Immigration 
Services 
In Re: 10472714 
Appeal of Texas Service Center Decision 
Form I-140 , Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 30, 2020 
The Petitioner , a consumer goods business, seeks to employ the Beneficiary as director, advanced 
development. It requests skilled worker classification for the Beneficiary under the third preference 
immigrant category . Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i) , 8 U.S.C. 
§ l 153(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 Texas Service Center denied the petition on the ground that the Petitioner did not 
establish its ability to pay the proffered wage of the instant Beneficiary, as well as the proffered wages 
of the beneficiaries of its other Form I-140 petitions . 
On appeal the Petitioner submits a brief and supporting documentation , and asserts that the evidence 
of record establishes its ability to pay all of its proffered wage obligations. 
Upon de nova review, we will remand the case to the Director for further consideration and the 
issuance of a new decision . 
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) of the 
Act, 8 U.S.C. § 1182(a)(5). 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)-(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, ifUSCIS 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. 
To be eligible for the classification it requests 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 C.F.R . § 204.5(g)(2) : 
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 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 [USCIS]. 
II. ANALYSIS 
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. In this case the proffered wage is 
$186,900 per year and the priority date is September 24, 2018. 
In determining a petitioner's ability to pay the proffered wage USCIS 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 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
In this case, the Petitioner,.__ _________ __. asserts that it has employed the Beneficiary 
since 2014 and the record includes a copy of his Form W-2, Wage and Tax Statement, for 2018 
showing that the Beneficiary received gross pay of $201,571.91 that year, which would exceed the 
proffered wage. The Form W-2, however, identifies the Beneficiary's employer on the Form W-2 as 
I I, 2 a separate corporation wholly owned 
by the Petitioner with its own federal em loyer identification number (FEIN). The Petitioner has not 
explained what does and why the Beneficiary is paid by that company if he 
works for.__ _________ ~ No documentation has been submitted to illuminate this issue. 
Moreover, the Form W-2 is not accompanied by any regulatory required document from the Petitioner 
(FEIN ending in 5430) - neither an annual report, nor a federal tax return, nor an audited financial 
statement - for the priority date year of 2018, as 8 C.F.R. § 204.5(g)(2) requires. Therefore, the 
evidence of the Beneficiary's pay froml lin 2018 does not establish that it came 
from the Petitioner and does not establish the Petitioner's continuing ability to pay the proffered wage 
from the priority date onward. 
1 The priority date of a petition is the date the underlying labor certification was filed with the DOL. 8 C.F.R. § 204.S(d). 
2 The record indicates thatl lwas converted into an LLCI I 
on April 30, 2019. 
2 
If a petitioner does not establish its ability to pay the proffered wage based on wages paid to the 
beneficiary, USCIS will examine the net income and net current assets figures recorded on the 
petitioner's federal income tax return(s), annual report(s), or audited financial statement(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. 
With its initial evidence the Petitioner submitted a copy of an audited financial statement of a parent 
company, .__ _____________ ~,3 for the years ending March 31, 2017 and 2016. 
Since the audited financial statement was not the Petitioner's and covered a time period before the 
priority date, it could not establish the Petitioner's ability to pay the proffered wage from the priority 
date onward. Accordingly, the Director issued a request for evidence (RFE) on May 22, 2019, advising 
the Petitioner to submit complete copies of either its annual reports, or federal tax returns, or audited 
financial statements for 2017 and 2018. In response to the RFE the Petitioner submitted a copy of the 
partial year tax return of I I for the period of 
June 27 to December 31, 2017. Since the tax return was not the Petitioner's, but rather that of its 
group parent, and covered a time period before the priority date, the Director found that it could not 
establish the Petitioner's ability to pay the proffered wage from the priority date onward. On appeal 
the Petitioner submits copies of two more federal tax returns ofl lfor the time 
periods of April 1, 2016, to March 31, 2017, and April 1, 2017, to September 29, 2017. Once again, 
these tax returns are not the Petitioner's and cover time periods before the priority date. Therefore, 
they cannot establish the Petitioner's ability to pay the proffered wage from the priority date onward. 
The companies for which the audited financial statement and the federal tax returns discussed above 
were prepared, I I and I I are separate and distinct legal entities from the 
Petitioner. As the Director pointed out in his decision, because a corporation is a separate and distinct 
legal entity from its owners and shareholders, the income and assets of its owners and shareholders 
cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. 
See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case the 
court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "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." Thus, the financial resources of 
thel landl I cannot be considered in determining the Petitioner's ability to pay 
the proffered wage. 
The Petitioner asserts that it does not file its own federal tax returns because it is part of a group of 
companies for whom a consolidated return is filed by the group parent,.__ ______ __. Even if 
that is the case (and the Petitioner does not claim to have an individualized annual report either), the 
Petitioner could still comply with the documentation requirement of 8 C.F.R. § 204.5(g)(2) by 
submitting an audited financial statement for itself In the RFE the Director specifically requested 
audited financial statements ( or federal tax returns or annual reports) from the Petitioner for 201 7 and 
3 The record shows that the Petitioner is indirectly owned by._l __ _.I. The Petitioner is directly owned byl.__ __ _. 
□which is a wholly-owned subsidiary ofl I 
3 
2018, but no such documents were submitted in response to the RFE. Nor has the Petitioner submitted 
any audited financial statements on appeal, 2018 being the most important year because the priority 
date was in September 2018. The Petitioner has not explained why no such document can be produced. 
Without an audited financial statement for 2018 users cannot determine the Petitioner's net current 
income ( or loss) and net current assets ( or liabilities) in the priority date year. 4 
The Petitioner has submitted letters from the tax manager and the vice president, corporate controller 
of.__ ________ _. both stating that the company had over 600 employees 5 and $1.1 billion 
of revenue in 2018 and has the ability to pay the proffered wage of the instant Beneficiary and its other 
beneficiaries of Form r-140 petitions as well.6 While the regulation at 8 e.F.R. § 204.5(g)(2) states 
that users "may accept a statement from a financial officer of [ an organization employing 100 or 
more workers] which establishes the prospective employer's ability to pay the proffered wage 
[emphasis added]," we will not exercise that discretionary authority in this case because it is not clear 
that the employee and revenue totals asserted in the letters apply just to the Petitioner or to multiple 
subsidiaries of the group parent I I We note that the Petitioner has presented mixed 
evidence from different entities with different tax identification numbers. Therefore, it is not clear 
whether all 600 plus employees are part of the Petitioner, and whether the 
revenue claimed is forl I alone or for multiple entities with the same parent. 
Since the letters discussed above, from the tax manager and the vice president, corporate controller of 
.__ _________ __. are unclear as to whether the employee and revenue totals they assert apply 
exclusively to the Petitioner or to other subsidiaries ofl I as well, we will remand this 
case for the Director to request additional information and evidence from the Petitioner to clarify this 
question. Upon receipt of the Petitioner's response, or the expiration of the response period, the 
Director shall reconsider the evidence as a whole and issue a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
4 The regulation at 8 C.F.R. § 103.2(b)(14) provides that the failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the benefit request. 
5 The Petitioner's vice president, corporate controller stated in a letter dated June 7, 2019, tha..__ __ ~-~-~----' 
had 650 employees in the United States. The Petitioner's tax manager stated in a letter dated September q 2019 that 
1 I had 646 employees in the United States, without specifying whether they all worked directly for[ I I I ._ _ ___. 
6 The Petitioner also has a business checking account withl I submits monthly account statements from 
January 2008 through August 2019, and asserts that it could utilize these funds to pay its proffered wage obligations. 
While the regulation at 8 C.F.R. § 204.5(g)(2) allows for the submission of other evidence such as bank account records 
"in appropriate cases," bank account records are not among the three types ofrequired evidence identified in the regulation 
- either annual reports, federal tax returns, or audited financial statements - to demonstrate a petitioner's ability to pay the 
proffered wage. Bank statements show an account balance on a given date, not the account holder's sustainable ability to 
pay proffered wages over time. Moreover, the Petitioner has not shown that the money in its bank account constitutes a 
separate financial resource that would not have been included among the current assets listed in any 2018 or 2019 audited 
financial statement. Therefore, the Petitioner has not establishyd its cootiouing aqility to pay the proffered wage from the 
priority date onward based on its business checking account at I I ~------' 
4