remanded EB-3 Case: Radio Broadcasting

MATIER OF M-R-D-R- LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 25, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a radio broadcasting company, ~eeks to employ the Beneficiary as a radio station 
producer. It requests classification of the Beneficiary as a professional under the third preference 
immigrant classification. Immigration and Nationality Act (the Act), section 203(b)(3)(A)(ii), 
8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. 
employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, ·that the Petitioner had the continuing ability to pay the proffered wage. 
On appeal, the Petitioner submits additional evidence and asserts that it has the continuing ability to 
pay the proffered wage. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with our opinion and for the entry of a new decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
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). 1 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)-(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 apP.lies for an immigrant visa abroad or, if eligible, 
adjustment of status in the Unite? States. See se~tion 245 of the Act, 8 U .S.C. § 1255. 
1 The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
January 19, 2017. See 8 C.F.R. § 204.S(d). 
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Mauer of M-R-D-R- LLC 
II. ABILITY TO PAY THE PROFFERED WAGE 
The Director concluded that the Petitioner did not establish its continuing ability to pay the proffered 
wage from the petition's priority date of January 19, 2017, onward. The proffered wage is $50,962 
per year. · 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t1on 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 obiains 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage. 2 i 
The record does not demonstrate that the Petitioner paid the Beneficiary any wages from the priority 
date in 2017 onward. Further, the record does not contain annual reports, federal tax returns, or 
audited financial statements covering the priority date in 2017 as required by 8 C.F.R. § 204.5(g)(2). 
Since the appeal was filed prior to the end of 2017, the required documents may not have been 
available at the time of filing the appeal. Thus, we will remand the matter to the Director for 
consideration of whether the Petitioner has the continuing ability to pay the proffered wage from the 
priority date of January 19, 2017, onward. We ncite the following issues on remand. 
With the petition, the Petitioner submitted a draft of the 2016 IRS Form 1120, U.S. Corporation 
lncpme Tax Return, of .3 In response to the Director's request for evidence 
(RFE), the Petitioner submitted the 2016 IRS Form 1120 for which shows 
that is the parent company of the Petitioner. The Petitioner stated that the 
"decision was made that [the Petitioner] would be most appropriately included as a wholly-owned 
2 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Do1111ts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); To11gatap11 Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi 
v. Dep ·, of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (~.D- Tex. 2014), ajf'd, 627 Fed. App'x. 292, 294-295 (5th Cir. 
2015). 
3 The Petitioner's company agreement dated November 17, 201 I, in the record shows that it was wholly-owned and 
managed by 
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Matter of M-R-D-R- LLC 
subsidiary of The cover sheet of the tax return indicated that the return 
had not been filed with the Internal Revenue Service (IRS). The Petitioner also submitted an email 
message from its accountant in response to the RFE. The accountant stated that the Petitioner is 
wholly-owned by ________ arid that it is treated as a disregarded entity for tax 
purposes. 
In his decision, _the Director declined to accept the 2016 tax return of as 
evidence of the Petitioner's ability to pay the proffered wage, as the Petitioner did not explain the 
change in its ownership 4 and it did not submit: evidence showing that the tax return was actually 
accepted and processed by the IRS. ' 
On appeal, the Petitioner asserts that it mistakenly submitted the tax return of 
with the petition. It states that it became the wholly-owned subsidiary of 
on February 11, 2015. It submits an affidavit from its chief operating officer (COO) stating that the 
Petitioner failed to notify its accountant that its ownership had changed, and therefore, the 
accountant mistakenly filed its 2015 and 2016 federal income tax returns as though the Petitioner 
was still as subsidiary of The COO states that the accountant was notified on 
October 30, 2017, of the 2015 ownership change and that on November 17, 2017, the accountant 
filed amended 2015 and 2016 tax returns for and ~ 
On appeal, the Petitioner also submits a letter from its accountant stating that he amended the 2016 
tax returns for and ==== and confirming that the Petitioner 
is a wholly-owned subsidiary of The letter does not indicate if the 2015 
returns for and were also amended. 6 ll also submits a 
membership interest purchase agreement dated November 2014 , together with an FCC 
consummation notice effective February 10, 2015, supporting the transfer of the Petitioner's 
membership interests from to · It also submits 
acknowledgement from the IRS that it accepted the 2016 Form 1120 for ------~ on 
November 17, 2017. 
The 2016 IRS Form 1120 for does not cover the 2017 priority date and, 
therefore, it does not establish the Petitioner's ability to pay the proffered wage from the priority 
date. Further, notwithstanding Hie fact that the 2016 tax return for does not 
cover the year of the priority date, the tax retum'does not establish the Petitioner's ability to pay the 
4 The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
5 The new 2016 tax return for _ _ is the only one of the new 2015 and 2016 returns included in the 
record. 
6 The 2016 tax ~eturn for indicates on page 1 that it is an initi al return. Presumably , this is 
because its financial results were previously included on t_hc tax returns of its former parent company. However, if the 
transfer of the Petitioner's membership interests from to took place before 
2016, it is not clear why the initial return for was filed in 2016. The Petitioner must resolve this 
inconsistency in the record with independent, objective evidence. Id. 
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Mauer of M-R-D-R- LLC 
wage because it does not independently list the Petitioner's net income and net current assets. 7 The 
Petitioner asserts that it is a disregarded entity for tax purposes under-26 C.F.R. § 301.7701-3, that it 
does not file its own tax return, and that its financial results are included on the tax returns of its 
parent entity. The record contains a letter from an accountant verifying this information. However, 
the parent's tax returns do not independently list the Petitioner's income, expenses, assets, and 
liabilities. Because the Petitioner, a limited liability company, is a separate and distinct legal entity 
from its member and other entities, 8 the income, expenses, assets, and liabilities of its parent 
company and other entities cannot be considered in determining the Petitioner's ability to pay the 
proffered wage. See Matter of Aphrodite Invs., Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar 
case, the .court in Sitar v. Ashcroji, No. Civ. A. 02-30l97-MAP, 2003 WL 22203713 (D.Mass. Sept. 
18, 2003) stated, "nothing in the governing r¢gulation, 8 C.F.R. § 204.5, permits [USCISJ to 
consider the financial resources of individuals or entities who have no legal obligation to pay the 
wage." Therefore, we cannot determine the Petitioner's ability to pay the proffered wage using its 
parent company's tax return. The record does not contain audited financial statements or an annual 
report detailing the Petitioner's net income and net current assets. See 8 C.F.R. § 204.5(g)(2). 
We may consider evidence of a petitioner's ability to pay beyond its net income and net current 
assets, including such factors as: the number of years it has conducted business; the growth of its 
business; its number of employees; the occurrence of any uncharacteristic business expenditures or 
losses; its reputation in its industry; whether .a beneficiary will replace a current employee or 
outsourced service; or other evidence of its ability to pay a proffered wage. See Maller of 
Sonegawa, 12 I&N Dec. 612, 614-615 (Reg'! Comm'r 1967). 
In this case, the record indicates that the Petitioner was established in 2011. The Petitioner claims to 
have eight employees. Unlike in Sonegawa, the record does not document the growth of the 
Petitioner's business, the occurrence of any uncharacteristic business expenditures or losses, its 
reputation in its industry, or whether the Beneficiary will replace a current employee or outsourced 
service. Thus, assessing the totality of circumstances in this individual case, the record does not 
establish the Petitioner's continuing ability to pay the proffered wage pursuant to Sonegawa. 
On remand, the Petitioner must establish its continuing ability to pay the.proffered wage from the 
petition's priority date in 2017 onward. 
Ill. CONCLUSION 
The decision of the Director will be withdrawn. The matter is remanded to the Director for 
consideration of whether the Petitioner has the continuing ability to pay the proffered wage from the 
priority date of January 19, 2017, onward. The Director may request any additional evidence 
considered pertinent. Similarly, the Petitioner rriay provide additional evidence within a reasonable 
7 The Petitioner paid the Beneficiary in 2016, which is less than the proffered wage. 
8 In addition to the Petitioner, the 2016 IRS Form 1120 for includes 
as a wholly-owned subsidiary. 
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Matter of M-R-D-R- LLC 
period of time to be determined by the Director: Upon receipt of all the evidence, the Director will 
review the entire record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter of M-R-D-R- LLC, ID# 1356606 {AAO July 25, 2018) 
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