remanded EB-3 Case: Masonry

MATTER or G-T-M-C- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 11, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a masonry business, seeks to employ the Beneficiary as a stonemason. It requests 
classification of the Beneficiary as a skilled worker under the third preforcncc immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3 )(A)(i), 8 U.S.C. § I 153(13)(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 continuing ability to pay the proffered wage from the priority date of the petition 
onward. 
On appeal the Petitioner asserts that the Director's reasoning was faulty and that the evidence of 
record establishes its ability to pay the proffered wage from the priority date onward. 
Upon de novo review, we will withdraw the Director's decision and remand the case 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)(A)(i) of the Act, 8 U .S.C. § I I 82(a)(5)(A)(i). By approving the labor certi l'ication, 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 
2 I 2(a)(5)(A)(i)(l)-([[) 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. § I 154. Third, 
if USCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if 
eligible, adjustment of stat:us in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
Matter <?f'G-T-M-C-LLC 
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 C.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 lawfol 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 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 as of the priority date I of the petition, which in this case is January 6, 2017. The 
labor certification states that the wage offered for the job of ston·emason is $68,578 per year. 
In determining a petitioner's ability to pay the proffered wage, USC[S 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 or 
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 record .indicates that the Beneficiary 
has not been employed by the Petitioner since the priority date. 
If a petitioner has not employed the beneficiary and paid him (or her) a salary equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded on the petitioner's federal inc_omc tax return(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 be considered able to pay the proffered wage during 
that year. 
The Petitioner is organized as a limited liability company (LLC), an entity formed under state law by 
filing articles of organization. An LLC may be classified for federal income tax purposes as if it 
were a sole proprietorship, a partnership or a corporation. If the LLC has only one owner, it will 
automatically be treated as a sole proprietorship by the Internal Revenue Service (IRS) unless an 
election is made to be treated as a corporation. If the LLC has two or more owners, it will 
automatically be considered to be a partnership by the IRS unless an election is made to be treated as 
a corporation. lf the LLC does not elect its classification, a default classification of partnership 
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). 
2 
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Mauer ofG-T-M-C-LLC 
(multi-member LLC) or disregarded entity (taxed as if it were a sole proprietorship) will apply. See 
26 C.F.R. * 30I.7701-3. The election referred to above is made using IRS Form 8832, Entity 
Classification Election. In the instant case the Petitioner, an LLC formed under slate law in 
Connecticut, is considered to be a sole proprietorship for federal tax purposes. An LLC, like a 
corporation, is a legal entity separate and distinct from its owners. The debts and obligations of the 
company generally are not the debts and obligations of the owners or anyone else.2 An investor's 
liability is limited to his or her initial investment. As the owners and others only are liable to his or her 
initial investment, the total income and assets of the owners and others and their ability, if they wished, 
to pay the company's debts and obligations, cannot be utilized to demonstrate the petitioner's ability to 
pay the proffered wage. Here, the Petitioner must show the ability to pay the proffered wage out of its 
own funds, which are recorded on Fom1 I 040, U.S. Individual Income Tax Return Schedule C, Profit or 
Loss from Business (Sole Proprietorship) 
With its initial evidence the Petitioner submitted a copy of a Form I 040 for 2017, dated fcbruary I 0, 
2018, which identified the return as a joint filing of and his wife. Schedule C, line 
31, recorded a net profit of $70, I 00 for the mason contractor business. This amount was carried 
forward to page I, line 12, of the Form I 040. · The Director issued a request for evidence (_RFE) 
stating that the 2017 federal individual income tax return was insufficient, and requesting that the 
Petitioner submit either a 2017 annual report, a 2017 audited financial statement, or its 2017 
"company" federal income tax return. In response to the RFE the Petitioner submitted a copy of an 
apparently updated federal individual income tax return, dated April 12, 2018, which had a slightly 
lower figure of $68,108 for the net profit of the business, as recorded in Schedule C, line 31, and on 
page 1, line 12, of the return. 
The Director found that the federal individual income tax return could not be substituted for the 
Petitioner's "company" tax return, and concluded that the Petitioner did not establish its ability to 
pay the proffered wage. The Director's finding was incorrect, however, since there is no indication 
in the record that any separate tax return was filed in the name of the LLC. The tax return for the 
LLC was incorporated in the individual tax return filed by and his wife as Schedule 
C, Profit or Loss frqm Business. Since the Director did not consider the information in Schedule C 
of the Petitioner's 2017 individual income tax return, we will withdraw the Director's decision. 
On appeal the Petitioner asserts that, since the business entity is a sole proprietorship ov.rncd by 
, the Director erred by not considering the net incorne of the business recorded in 
Schedule C. line 31, of the Form 1040 individual income tax return of and his wife. 
While the Petitioner is correct that Schedule C was the proper tax record for the Director to consult 
in detem1ining its net income (or loss) in 2017, it is unclear whether the Petitioner's net income in 
2017 equaled or exceeded the proffered wage. As previously indicated, the Petitioner has furnished 
copies of two different tax returns for 2017. The first, dated February I 0, 2018, recorded net income 
of $70,100, which exceeds the proffered wage. The second, dated April 12, 2018, recorded net 
2 Although this general rule might be amenable to alteration pursuant to contract or otherwise, no evidence appears in the 
record lo indicate that the general rule is inapplicable in the instant case. 
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Matter <?fG-T-M-C-LLC 
income of $68,108, which is less than the proffered wage. The Petitioner has not explained why 
there are two different tax returns for the same year, whether both were filed, or whether the later 
dated return was substituted for the earlier dated return. 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without 
competent evidence pointing to where the truth lies. See Maller <?l Ho, 19 I&N Dec. 582.· 591-92 
(BIA 1988). Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of 
the petitioner's remaining evidence. See id. 
In view of the unresolved evidentiary issues described above, we will remand this case to the 
Director for further consideration of the evidence in the record, and to request any further evidence 
that may be deemed necessary, relating to the Petitioner's ability to pay the proffered wage. The 
Director shall then issue a new decision. 
Ill. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for further consideration of 
the Petitioner's ability to pay the proffered wage of $68,578 per year from the priority date of 
January 6, 201 7, onward. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of G-T-M-C- LLC, ID# 2288828 (AAO _Dee. 11, 2018) 
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