sustained EB-3 Case: Residential Care

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-S-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 19,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a residential care facility, seeks to employ the Beneficiary as a caregiver. It requests 
classification of the Beneficiary as an unskilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). 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 
less than two years of training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner had not established its ability to pay the proffered wage from the priority date onward. 
On appeal, the Petitioner asserts that the Director erred in not considering the Petitioner's retained 
earnings and commercial line of credit and the financial assets of the company's majority owner as 
contributing toward its ability to pay the proffered wage. The Petitioner asserts that if we include 
these additional factors in addition to its net income and net current assets it has satisfied the burden 
of proof by a totality of the circumstances. 
Upon de novo review, we will sustain the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain 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, 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. Section 
212(a)(5)(A)(i)(l)-(11) of the Act. Second, the employer may file an immigrant visa petition with 
1 
The date the labor certification is filed is called the "priority date." See 8 C.F.R. § 204.5(d). A beneficiary must be 
eligible as of that date, and so in this case the Petitioner must establish its ability to pay the proffered wage to the 
Beneficiary by the date the labor certification was filed. 
Matter of B-S-C-, Inc. 
§ 1154. Third, if USC IS 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. 
The issue before us is whether the Petitioner has established the ability to pay the proffered wage to 
the Beneficiary from the priority date onward. The regulation 8 C.F.R. § 204.5(g)(2) states in 
pertinent part: 
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 ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 
8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, USCIS requires the petitioner 
to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the 
totality of the circumstances affecting the petitioning business will be considered if the evidence 
warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
II. ANALYSIS 
As required by statute, the I -140 petition filed in this matter is accompanied by an approved labor 
certification certified by the DOL.Z The priority date in this matter is July 12, 2013. The proffered 
wage as stated on the labor certification is $23,546 per year. The Director determined that the 
Petitioner had established its ability to pay the proffered wage to the Beneficiary in 2013 and 2015, 
but not in 2014. 
The Petitioner claimed to have employed the Beneficiary since July 12, 2007, but did not submit any 
evidence ofwages pai_d to the Beneficiary in 2014. The Petitioner's IRS Forms 1120S, U.S. Income 
Tax Return for an S Corporation, did not reflect sufficient net income or net current assets to pay the 
proffered wage. However, on appeal, the Petitioner asserts that the Director erred in not considering 
the officer compensation paid to its majority owner as part of the totality of the circumstances 
analysis when determining whether the Petitioner established the ability to pay the proffered wage. 
As noted, USC IS may consider the totality of the circumstances of a petitioner's business activities 
in its determination of the petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 
I&N Dec. at 612. 
1 
We may consider such factors as the number of years the petitioner has been 
2 
See, Section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
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Matter of B-S-C-, Inc. 
doing business, the established historical growth of the petitioner's business, the overall number of 
employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's 
reputation within its industry, whether the beneficiary is replacing a former employee or an 
outsourced service, or any other evidence that we deem relevant to the petitioner's ability to pay the 
proffered wage. We may also consider, as the Petitioner urges, the compensation paid to officers. 
The shareholders of a corporation have the authority to allocate expenses of the corporation for 
various legitimate business purposes, including for the purpose of reducing the corporation's taxable 
income. Compensation of officers is an expense category explicitly stated on the IRS Form 
1120S. For this reason, the Petitioner's figures for compensation of officers may be ~onsidered as 
additional financial resources of the Petitioner. 
In considering this matter under Sonegawa, we note the Petitioner's longevity in business and its 
majority shareholder's offer to forego officer compensation. Specifically, the documentation 
presented indicates that the majority shareholder/officer was willing and able to forego officer 
compensation that was paid to him in 2014. The amount of officer compensation was sufficient, 
when considered in light of the Petitioner; s other financial resources, to establish the Petitioners 
ability to pay the proffered wage in 2014. As such, we find that the Petitioner can pay the proffered 
wage to the Beneficiary based on the totality of the circumstances. 
III. CONCLUSION 
Upon review of the entire record including the evidence submitted on appeal, we conclude that the 
Petitioner has established that it is more likely than not that it had the ability to pay the proffered wage 
from the priority date onward. 
ORDER: The appeal is sustained. 
Cite as Matter of B-S-C-, Inc., ID# 270093 (AAO June 19, 2017) 
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