sustained EB-3 Case: Industrial Food Processing

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-F-S-C-, 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 25,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of industrial food processing and packaging equipment, seeks to employ the 
Beneficiary as an international regulatory compliance manager. It requests classification of the 
Beneficiary as a skilled under the third preference immigrant classit1cation. See Immigration and 
Nationality 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. The Director found that the Petitioner 
did not establish its continuing ability to pay the proffered wage of the job offered from the priority 
date of the petition onward. 
On appeal the Petitioner submits a brief and supporting documentation, and asserts that the evidence 
of record establishes its continuing ability to pay the proffered wage. 
Upon de novo review, we ~ill sustain the appeal. 
A petitioner must establish, among other things, that it has the ability to pay the beneficiary the 
proffered wage from the priority date onward. The regulation at 8 C.P.R. § 204.5(g)(2) provides, in 
pertinent part, as follows: 
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. 
The Petitioner's Form I-140, Immigrant Petition for Alien Worker, was accompanied by a certit1ed 
ETA Form 9089, Application for Permanent Employment Certification (labor certification), which had 
been filed with the DOL on May 30, 2014 (the priority date). As stated on the labor certit1cation, the 
proffered wage of the job offered is $74,818 per year. In denying the petition the Director found that 
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Matter of 1-F-S-C-, 
the evidence of record did not establish that the Petitioner could pay the proffered wage in either 2014 
or 2015. The Petitioner's ability to pay the proffered wage is the only issue on appeal. 
The Petitioner is a partnership co-owned, 50% each, by and husband 
and wife. The record includes copies ofthe Petitioner's U.S. Return ofPartnership Income, Form 1065, 
for the years 2013, 2014, and 2015, the partners' Forms 1040, U.S. Individual Income Tax Returns 
(married filing jointly), for the years 2013, 
2014, and 2015, the Beneficiary's Forms W-2, Wage and 
Tax Statements, from the Petitioner for the years 2013, 
2014, and 2015,1 the Beneficiary's earnings 
statements from January to May 2016, and personal statements of the Petitioner's co-owners concerning 
their financial situations, as well as other documentation. 
In determining the petitioner's ability to pay the proffered wage, U.S. Citizenship and Immigration 
Services (USCIS) first examines whether the beneficiary was employed and paid by the petitioner 
during the period following the priority date. 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 
is considered prima facie proof of the petitioner's ability to pay the proffered wage. If the petitioner 
does not establish that it has paid the beneficiary an amount at least equal to. the proffered wage from 
the priority date onward, USCIS will examine the net income and net current assets figures entered 
on the petitioner's federal income tax return(s). If either of these figures 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 protTered wage during that year. 
In this case, the Beneficiary's Forms W-2 show that he received "wages, tips, other compensation" 
from the Petitioner of$48,150 in 2014 and 2015, which was $26,668 below the proffered wage. 
The Petitioner's Form 1065 for 2014 shows that its net current assets were $30,868 that year. Since 
the wages paid to the Beneficiary plus the Petitioner's net current assets exceeded the pro tiered 
wage by $4,200, the Petitioner has established its ability to pay the proffered wage in 2014. 
The Petitioner's Form 1065 for 2015 shows that its net current assets that year were $11,341. Thus, 
the wages paid to the Beneficiary plus the Petitioner's net current assets were $15,327 less than the 
proffered wage. 
USCIS also considers the totality of the circumstances, including the overall magnitude of a 
petitioner's business activities in its determination of its ability to pay the proffered wage. See 
Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). As in Sonegawa, USCIS considers 
evidence relevant to a petitioner's financial ability that falls outside of a petitioner's net income and 
net current assets. USCIS considers such factors as the number of years a petitioner has been doing 
business, the established historical growth of a petitioner's business, the overall number of 
employees, the occurrence of any uncharacteristic business expenditures or losses, a petitioner's 
1 
According to the labor certification, the Petitioner has employed the Beneficiary since February I, 20 II. 
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Matter of 1-F-S-C-, 
reputation within its industry, or any other evidence that USCIS deems relevant to a petitioner's 
ability to pay the proffered wage. 
In this case, considering the size of the Petitioner's revenues as well as evidence establishing that the 
two co-owners were willing and able to forego a relatively small amount of compensation from the 
Petitioner to cover the full proffered wage to the Beneficiary, we conclude that the Petitioner has 
established its continuing ability to pay the proffered wage from the priority date onward. 
Accordingly, the appeal will be sustained. 
ORDER: The appeal is sustained. 
Cite as Matter of 1-F-S-C-, ID# 448405 (AAO Aug. 25, 2017) 
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