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U.S. Citizenship
and Immigration
Services
MATTER OF F-&F-, PLLC
Non-Precedent Decision ofthe
Administrative Appeals Office...
Matter ofF-&F-, PLLC
to pay the proffered wage. The petitioner must demonstrate this ability at the time the
priority date...
Matter ofF-&F-, PLLC
wage or more, USCIS will review the petitioner's net current assets. Net current assets are the
diffe...
Matter ofF-&F-, PLLC
Moreover, the NY entity's bank records do not establish that the Petitioner has any control over its
...
Matter ofF-&F-, PLLC
adjusting for inflation since 1966, employs a similar number of employees, has been in business for
t...
Matter ofF-&F-, PLLC
and the Petitioner's assertions do not constitute evidence. !d. Further, some of the appearances and
...
U.S. Citizenship
and Immigration
Services
MATTER OF F-&F-, PLLC
APPEAL OF TEXAS SERVICE CENTER DECISION
Non-Precedent Deci...
(b)(6)
Matter ofF-&F-, PLLC
The instant record does not contain a copy ofthe Petitioner's annual report, federal income ta...
(b)(6)
Matter ofF-&F-, PLLC
The assets of other enterprises generally cannot establish a petitioner's ability to pay. See ...
Matter ofF-&F-, PLLC
the record does not establish the number of members of the New York entity or its appropriate
classif...
Matter ofF-&F-, PLLC
A copy of the Petitioner's 2013 federal income tax return reflects an annual net income amount of
$16...
Matter ofF-&F-, PLLC
former employee or an outsourced service, and any other evidence of a petitioner's ability to pay the...
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MATTERS OF F-& F-, PLLC (AAO 2016 & 2015)

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MATTERS OF F-& F-, PLLC (AAO 2016 & 2015) - Law Firm lacked "ability to pay" an Immigration Law Clerk as EB-3 Professional who holds a baccalaureate degree.

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MATTERS OF F-& F-, PLLC (AAO 2016 & 2015)

  1. 1. U.S. Citizenship and Immigration Services MATTER OF F-&F-, PLLC Non-Precedent Decision ofthe Administrative Appeals Office DATE: MAY 23, 2016 MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a law firm, seeks to employ the Beneficiary as an immigration law clerk. It requests classification of the Beneficiary as a professional under the third preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 O.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, Texas Service Center, denied the petition. The Director determined that the Petitioner had not established its ability to pay the proffered wage from the priority date onwards. On November 6, 2015, we affirmed the Director's decision and dismissed the appeal. The matter is now before us on a motion to reconsider. The Petitioner claims that it has established it had the ability to pay the proffered wage either through payment of wages or through the totality ofthe circumstances for its business. We will deny the motion to reconsider. I. LAW AND ANALYS1S The regulation at 8 C.F.R. § 103.5(a) provides, that "[a] motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time ofthe initial decision." The instant petition is accompanied by an approved ETA Form 9089, Application for Permanent Employment Certification (labor certification), certified by the U.S. Department of Labor (DOL). The priority date of the petition, which is the date the DOL accepted the labor certification for processing, is September 26; 2013. See 8 C.F.R. § 204.5(d). The regulation at 8 C.F.R. § 204.5(g)(2) states: 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 EB-3, Specifically, E32/E37 - Professional who holds a baccalaureate degree or who is a member of a profession. Immigration Law Clerk This is the right category for this occupation but the petitioner lacked the ability to pay. It contains a good discussion of a “Sonegawa Analysis”. By Joseph P. Whalen at 9:18 pm, Jun 06, 2016
  2. 2. Matter ofF-&F-, PLLC 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 I00 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 the Service. The issue before us is whether the Petitioner established that it has the ability to pay the proffered wage of $56,451 from the September 26, 2013, priority date onwards. A. The Petitioner's Net Income and Net Current Assets In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and Immigration Services (USCIS) will first examine whether the petitioner employed and paid the beneficiary during that period. 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 will be considered primafacie proofofthe petitioner's ability to pay the proffered wage. If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage during that period, USCIS will next examine the net income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d Ill (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), ajf'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross sales and profits and wage expense is misplaced. Showing that the petitioner's gross sales and profits exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient. The courts have specifically rejected the argument that the Service should have considered income before expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses). Similarly, the courts have agreed that adding depreciation back into net income does not reflect an employer's ability to pay the proffered wage. See River Street Donuts, 558 F.3d at 118 and Chi-Feng Chang, 719 F. Supp. at 537. If the net income the petitioner demonstrates it had available during that period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered 2
  3. 3. Matter ofF-&F-, PLLC wage or more, USCIS will review the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets and current liabilities.' The Petitioner's 2013 tax returns indicate that it had $16,885 in net income and -$28,984 in net current assets. We determined that the Petitioner did not submit evidence that it had sufficient net income or net current assets to pay the proffered wage from the priority date onwards. In our previous decision we noted that the record of proceedings contained insufficient evidence to establish that the Petitioner has paid the Beneficiary any wages because the record demonstrated that the wages were paid by another entity and not the Petitioner. B. The Petitioner and the ~y Entity The Petitioner filed the labor certification and the Form I-140, Immigrant Petition for Alien Worker. Before the Director and on appeal, the Petitioner submitted evidence that a New York business entity with a separate Federal Employer Identification Number (FEIN) paid wages to the Beneficiary in 2012 and 2013. On motion, the Petitioner states that, even though the two entities have separate FEINs, they are one and the same. The Petitioner asserts that we should have considered the NY entity's payment of the Beneficiary's wages in determining the Petitioner's ability to pay the proffered wage. The Petitioner states that it submitted extensive records to show that it registered and owns the NY entity, controls the NY entity's bank account and that the funds that circulate at the NY entity belong entirely to the Petitioner. As discussed in our previous decision, the Internal Revenue Service (IRS) permits an LLC with one member to be classified as "an entity disregarded as separate from its owner" and requires it to either report any income, deductions, gains, losses, or credits on the owner's income tax return or file a separate income tax return. See Internal Revenue Serv.. Publication 3402, Taxation of Limited Liability Companies, www.irs.gov/pub/irs-pdf/p3402.pdf (accessed May 5, 2016). The Petitioner's 2013 Internal Revenue Service (IRS) Form 1120S, U.S. Income Tax Return for an S Corporation, does not list the NY entity in any capacity, either as a subsidiary, a partner or a pass-through entity. According to its tax returns, the Petitioner does not claim any ownership interest in any companies. Therefore, the record does not establish that the NY entity is a disregarded entity or that it was owned by the Petitioner. While the record does not reflect that the Petitioner owns the NY entity, it appears that the Petitioner's sole shareholder is also a shareholder of the NY entity. Although the record demonstrates that the Petitioner and the NY entity are separate entities owned by the same individual, common ownership does not bestow an obligation on one entity to pay wages to employees ofthe other. 1 According to Barron's Dictionary ofAccounting Terms 117 (3rd ed. 2000), "current assets" consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). !d. at 118. . 3
  4. 4. Matter ofF-&F-, PLLC Moreover, the NY entity's bank records do not establish that the Petitioner has any control over its accounts. The bank records reflect that the NY entity's statements are not sent in care of or to the Petitioner's address, but are sent to the shareholder's personal address. While the NY entity and the Petitioner can transfer funds across their accounts, this is due to common ownership of the two entities, rather than a legal relationship and obligation between the companies themselves. Because a corporation is a separate and distinct legal entity from its owners and shareholders, the assets of its shareholders or of other enterprises or corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. See Matter ofAphrodite 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." The Petitioner's assertion that the NY entity's assets can be used to meet its ability to pay the proffered wage because the Petitioner owns and controls it is unpersuasive. While it is true that the sole member of the Petitioner owns the NY entity, the record does not demonstrate that the Petitioner as a corporation owns or controls the NY entity. Therefore, the Petitioner has not established that the NY entity is an entity which has a legal obligation to pay the Beneficiary's wage. As such, we cannot consider the NY entity's assets when considering the Petitioner's ability to pay the proffered wage. B. Totality ofthe Circumstances On motion, the Petitioner asserts that we did not consider the totality of the scope of its business and misrepresented the facts of Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'! Comm'r 1967). We concede that in Sonegawa, the petitioner earned gross annual income of about $100,000, rather than $100,000 in net annual income2 However, this fact is not what drives a Sonegawa analysis. Rather, under Sonegawa, we consider the factors we discussed in our decision: 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 former employee or an outsourced service, and any other evidence of a petitioner's ability to pay the proffered wage. On motion, the Petitioner states that the instant case is similar to Sonegawa because it has established a similar gross income (between $800,000 to $1 million with continued growth) after 2 Sonegawa had been in business for over 11 years and routinely generated an annual gross income of about $100,000. During the year in which the petition was filed, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. The petitioner was a fashion designer whose work had been featured in Time and Look magazines, as well as the Fashion Service Review and numerous other fashion magazines. The petitioner's clients had been included in the lists of the best-dressed California women and included Miss Universe, movie actresses, and society matrons. The petitioner also received appearances fees for lecturing on fashion design at colleges and universities in California and at design and fashion shows throughout the United States. 4
  5. 5. Matter ofF-&F-, PLLC adjusting for inflation since 1966, employs a similar number of employees, has been in business for the same length of time, has a similar reputation and experienced uncharacteristic business expenditures (advertising expenses) in 2013. However, the Petitioner's case is distinguishable from Sonegawa. While the Petitioner commands a similar gross income to that shown in Sonegawa, and employs a similar number of employees, the Petitioner had negative net income and net current assets in 20 II and 2012, prior to the year in which it claims it had uncharacteristic expenditures. Admittedly, the decision in Sonegawa does not provide specific information regarding that petitioner's net income in years before the business incurred uncharacteristic expenses related to moving. However, the decision indicates that the petitioner had an ability to pay the proffered wage at the time of filing the petition. Sonegawa also established that it had since resumed normal business operations and generated sufficient net income in the space of 5 months to pay more than 75% of the proffered wage. On motion, counsel states that the Petitioner incurred uncharacteristic business expenditures in 2013 due to a major advertising campaign, accounting for $4,000 per month and that it has made further cuts in advertising in the amount of $13,000 per month. In response to the Director's August 14, 2014, request for evidence (RFE), counsel stated that the Petitioner incurred uncharacteristic business expenditures in 20 II and 2012 due to a major advertising campaign in Florida and an expansion into New York. However, the NY entity was not registered until May 25, 2012, and, as discussed above, any funds used for this business do not reflect funds available to the Petitioner to establish its ability to pay the proffered wage. Additionally, the Petitioner classifies business expenses which occurred over the period ofat least three years as "uncharacteristic," whereas the uncharacteristic expenses incurred by Sonegawa occurred over a period of 5 months. Moreover, the record does not contain any documentation of the expenses the Petitioner claims are uncharacteristic, such as contracts for services, receipts or invoices. The record does not contain documentary evidence to support the Petitioner's assertions regarding its uncharacteristic expenses. These assertions, unsubstantiated by supporting evidence, are insufficient to satisfy the Petitioner's burden of proof. Matter of Sojjici, 22 I&N Dec. !58, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'! Comm'r 1972)); and Matter ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Further, despite having the opportunity to submit additional evidence below and on motion, the Petitioner did not submit evidence of its net income or net current assets for 2014, the year in which it claims the uncharacteristic expenses ceased.3 On motion, the Petitioner lists a number of its ratings, awards, publications and appearances to support the assertion that it has a reputation within its industry comparable to Sonegawa. However, the record does not contain documentary evidence of the listed awards, publications and appearances 3 The Petitioner notes that it did not receive a June 26,2015, RFE asking for its 2014 tax returns. On motion and below, it has not provided its 2014 or 2015 tax returns or any other evidence to establish it has recovered from the claimed uncharacteristic expenditures. 5
  6. 6. Matter ofF-&F-, PLLC and the Petitioner's assertions do not constitute evidence. !d. Further, some of the appearances and lectures listed, such as radio show appearances, hosting a weekly radio show, guest lecturing for potential clients and publishing eZine articles, are self-promotional in nature and would not indicate that the business is considered to be outstanding. Finally, the Petitioner states that we ignored its bank statements which showed sufficient funds to the pay the proffered wage. As discussed in our November 6, 2015, decision, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases," as discussed above the Petitioner has not demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Further, the Petitioner did not demonstrate that the funds reported on its bank statements constitute additional available ti.tnds that were not reflected on its tax returns, such as the petitioner's taxable income (income minus deductions) or the cash specified on Schedule L that was considered in determining its net current assets. For the above reasons, the Petitioner has not established its ability to pay the proffered wage. II. CONCLUSION In summary, the Petitioner did not establish that it has the ability to pay the proffered wage from the priority date onwards. Our November 6, 2015, decision is affirmed and the petition remains denied. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Brantigan, II l&N Dec. 493 (BIA 1966); Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. ORDER: The motion to reconsider is denied. Cite as Matter ofF-&F-, PLLC, ID# 16703 (AAO May 23, 2016) 6
  7. 7. U.S. Citizenship and Immigration Services MATTER OF F-&F-, PLLC APPEAL OF TEXAS SERVICE CENTER DECISION Non-Precedent Decision of the Administrative Appeals Office DATE: NOV. 6, 2015 PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a law firm, seeks to permanently employ the Beneficiary as an immigration law clerk under the immigrant classification of professional. See Immigration and Nationality Act (the Act) § 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). The Director, Texas Service Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed. The Director concluded that the record did not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. Accordingly, the Director denied the petition on September. 11, 2014. The record shows that the appeal is properly filed and alleges specific errors in law and fact. See 8 C.P.R. § 103.3(a)(l)(v) (authorizing summary dismissal of an appeal that does not specifically identify an erroneous conclusion of law or statement of fact). The record documents the procedural history of the case, which is incorporated into the decision. We will elaborate on the procedural history only as necessary. We conduct appellate review on a de novo basis. See, e.g., Soltane v. Dep 't ofJustice, 381 F.3d 143, 145 (3d Cir. 2004). We consider all pertinent evidence of record, including new evidence properly submitted on appeal. 1 I. THE PETITIONER'S ABILITY TO PAY THE PROFFERED WAGE A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.P.R. § 204.5(g)(2). Evidence of ability to pay must include ·copies of annual reports, federal income tax returns, or audited financial statements. !d. I The instructions to Form I-2908, Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § I03.2(a) (I), allow the submission of additional evidence on appeal. The record in the instant case provides no reason to preclude consideration of any documents newly submitted on appeal. - ------------------------------- - - -
  8. 8. (b)(6) Matter ofF-&F-, PLLC The instant record does not contain a copy ofthe Petitioner's annual report, federal income tax return, or audited financial statements for 2014. In response to our request for evidence (RFE) of April 3, 2015, the Petitioner submitted evidence of its request for an automatic extension of time in which to file its 2014 tax return. Our Supplemental RFE of June 26, 2015 again requested a copy of the Petitioner's annual report, federal income tax return, or audited financial statements for 2014. However, we did not receive a response to our Supplemental RFE. We will therefore consider the Petitioner's ability to pay the proffered wage only through 2013.2 In determining ability to pay, we consider whether a petitioner paid wages to a beneficiary. A petitioner demonstrates its prima facie ability to pay if its payments to a beneficiary during a relevant period equaled or exceeded a proffered wage. Otherwise, we examine a petitioner's amounts of net income and net current assets. If a petitioner's net income or net current assets during a relevant period equal or exceed the difference between wages paid (if any) and a proffered wage, then the petitioner demonstrates its ability to pay. In addition, we may consider other circumstances affecting a petitioner's ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612,614-15 (Reg'l Comm'r 1967).3 In the instant case, the accompanying ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL), states the proffered wage of the offered position of immigration law clerk as $56,451 per year. The petition's priority date is September 26, 2013, the date the DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d). The Beneficiary attested on the labor certification to her employment by the Petitioner since June 14, 2012. The Petitioner submitted copies of the Beneficiary's pay receipts and her IRS Form W-2, Wage and Tax Statement, for 2013, which reflect payments to her totaling $45,800.04. However, as indicated in our RFE, the Beneficiary's pay receipts and Form W-2 for 2013 do not indicate her payment by the Petitioner. The materials state the Beneficiary's receipt of payments from . a company with a different name, address, and federal employer identification number (FEIN) than the Petitioner. See 20 C.F.R. § 656.3 (requiring an "employer" for labor certification purposes to possess a valid and distinctive FEIN). The Form I- 140, Petition for Alien Worker, and the accompanying labor certification identify the Petitioner, not the New York entity, as the Beneficiary's prospective employer. 2 We do not find the Petitioner's lack of response to our Supplemental RFE to preclude a material line of inquiry. See 8 C.F.R. § 103.2(b)(l4) (authorizing us to deny a petition for a petitioner's failure to submit requested evidence that precludes a material line of inquiry). However, in any future filings regarding this petition, the Petitioner must submit a copy of its annual report, federal tax return, or audited financial statements for 2014 pursuant to 8 C.F.R. § 204.5(g)(2). 3 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See River St. Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Tongatapu 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); Rivzi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014); Just Bagels Mfg., Inc. v. Mayorkas, 900 F. Supp. 2d 363, 373-76 (S.D.N.Y. 2012). 2
  9. 9. (b)(6) Matter ofF-&F-, PLLC The assets of other enterprises generally cannot establish a petitioner's ability to pay. See Matter of Aphrodite Invs., Ltd., 17 I&N Dec. 530, 531 (Comm'r 1980) (holding that a corporation constitutes a separate legal entity from its owners); see also Sitar v. Ashcroft, No. CIV. A. 02-30197-MAP, 2003 WL 22203713, *3 (D. Mass. Sept. 18, 2003) (stating that "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"). Although the Beneficiary received pay checks and Forms W-2 from another company in 2013, the Petitioner argues that it and the other entity "are one and the same business." The Petitioner argues that it provided the New York entity with the funds from which it paid the Beneficiary's wages in 2013. In response to our RFE, the Petitioner's sole member stated that the Petitioner began leasing an office in in 2009 and hired the Beneficiary as the office's first, full-time employee in 2012.4 At that time, the member stated that the Petitioner obtained a separate FEIN for its New York office for the convenience of its payroll service provider, which must withhold New York-based taxes from the Beneficiary's pay that do not apply to the wages ofthe Petitioner's other employees in Florida. However, another attorney with the Petitioner provided a different explanation for the creation of the New York entity. In a May 14, 2015, affidavit, the other attorney stated that the Petitioner attempted to register its business in New York under its own name, "but the registration was rejected." He stated that the Petitioner therefore registered in New York under the name of a new entity. The conflicting explanations regarding the creation of the New York entity cast doubt on the Petitioner's claimed funding of the Beneficiary's wages in 2013. See Matter ofHo, 19 I&N Dec. 582, 591 -92 (BIA 1988) (requiring a petitioner to resolve inconsistencies of record by independent, objective evidence). The Petitioner's member stated that the Petitioner, not the New York entity, files federal income tax returns on behalf of the business "since a majority of the work was being completed in Florida." The member stated that all income derives from contracts signed by clients with the Florida entity and that the New York entity does not receive any income for tax purposes. The record contains copies of email messages indicating that clients generated through the New York office signed agreements with the Petitioner. However, the record does not establish that the New York entity files no federal income tax returns. Online information from the Internal Revenue Service (IRS) indicates that an LLC, like the New York entity, need not necessarily file a separate income tax return. See Internal Revenue Serv., Publication 3402 "Taxation of Limited Liability Companies," at http://www.irs.gov/pub!irs-pdf/p3402.pdf (accessed Sept. 15, 2015) (stating that an LLC with one member can be classified as "an entity disregarded as separate from its owner" and report any income, deductions, gains, losses, or credits on the owner's income tax return). However, 4 Effective January I, 2015, unless expressly provided otherwise in an operating agreement, a former "managing member" of a Florida limited liability company (LLC) is considered to be a "member." See Fla. Stat. § 605.0407( I). 3
  10. 10. Matter ofF-&F-, PLLC the record does not establish the number of members of the New York entity or its appropriate classification for federal tax purposes. See Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citation omitted) (stating that a petitioner's uncorroborated assertions do not meet the burden of proof in visa petition proceedings). The Petitioner also argues that it controls the bank account of the New York entity through which the Beneficiary is paid. The record contains documentation indicating the Petitioner's access to an account in the name of the New York entity and the Petitioner's transfers of funds into the account. However, the record does not establish the Petitioner's payment of the Beneficiary's full wages in 2013. Copies of bank account statements indicate the Petitioner's transfer of $2,000 from the checking account in its name to the checking account in the name of the New York entity in 2013 after the petitioner's September 26 priority date. However, this amount is insufficient to fund even one of the Beneficiary's monthly paychecks of$3,816.67 in October, November, or December 2013. The Petitioner asserts that other funds in the account of the New York entity during that period derived from client contracts in the Petitioner's name. However, documentary evidence of record does not specifically link any of the other deposits into the New York entity's account with client contracts in the Petitioner's name. The record does not indicate the sources of the account's remaining funds used to pay the bulk of the Beneficiary's wages during that period. See Soffici, 22 I&N Dec. at 165 (stating that a petitioner's uncorroborated assertions do not meet the burden of proof in visa petition proceedings). Thus, the record establishes the Petitioner's funding of only $2,000 of the Beneficiary's wages in 2013. The Petitioner submitted evidence of the New York entity's operations under the Petitioner's name, the Petitioner's hiring of the Beneficiary, and the supervision of her work by its attorneys in Florida. This evidence supports the Petitioner's common law "employment" of the Beneficiary. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992) (stating that a variety of factors must be considered in determining the existence of a common law employer-employee relationship, including a hiring party's right to control the manner and means of the work, and the method of payment). However, our focus here is on the Petitioner's ability to pay the proffered wage, not on its status as the Beneficiary's common law employer. As the Beneficiary's common law employer, the Petitioner would not necessarily pay her wages. See, e.g, 26 U.S.C. § 340l(d)(l) (requiring an entity that controls the payment of a worker's wages to withhold federal payroll taxes from her pay if her common law employer does not control the payment of her wages). The record establishes the Petitioner's funding of $2,000 of the Beneficiary's wages in 2013. Because this amount does not equal or exceed the annual proffered wage of $56,451, the record does not establish the Petitioner's ability to pay based on the wages it funded. However, we credit the Petitioner's funding of the Beneficiary's wages. Therefore, the Petitioner need only establish its ability to pay the difference between the annual proffered wage and the amount of the Beneficiary's wages it funded, or $54,451. 4
  11. 11. Matter ofF-&F-, PLLC A copy of the Petitioner's 2013 federal income tax return reflects an annual net income amount of $16,855 in 2013. Because the annual net income amount does not equal or exceed the difference between the proffered wage and the amount of the Beneficiary's wages funded by the Petitioner, the record does not establish its ability to pay based on its net income. The Petitioner's 2013 federal income tax return reflects an annual net current asset amount of $(28,984).5 Because the annual net current asset amount is negative, the record does not establish the Petitioner's ability to pay the proffered wage based on its net current assets. The Petitioner argues that the funds in its bank accounts in 2013 should be considered in determining its ability to pay the proffered wage. However, the Petitioner presumably included the bank account funds in the current assets it reported on its 2013 federal tax return. See Joel G. Siegel & Jae K. Shim, Barron's Dictionary of Accounting Terms 118 (3d ed. 2000) (defining the term "current assets" to include assets that generally may be liquidated within one year, such as cash). As previously discussed, in considering the Petitioner's ability to pay in 2013, we have considered its net current assets. The record does not indicate that the bank account balances constituted additional funds available to pay the proffered wage. The account statements therefore do not establish the Petitioner's ability to pay the proffered wage in 2013. Thus, based on examinations of the wages paid to the Beneficiary by the Petitioner, its net income, and its net current assets, the record does not establish its continuing ability to pay the proffered wage from the petition's priority date onward. As previously indicated, we may also consider the scope of a petitioner's business act1v1t1es in determining its ability to pay a proffered wage. See Sonegawa, 12 I&N Dec. at 614-15. In Sonegawa, the petitioner conducted business for more than 11 years, routinely earning a net annual income of about $100,000. However, during the year of the petition's filing, the petitioner's federal tax returns did not reflect its ability to pay the proffered wage. During that year, the petitioner relocated its business, causing it to pay rent on two locations for a five-month period, to incur substantial moving costs, and to briefly suspend its business operations. Despite these setbacks, the Regional Commissioner found that the petitioner would likely resume successful business operations and established its ability to pay the proffered wage. The record identified the petitioner as a fashion designer whose work had been featured in national magazines. The record indicated that her clients included the then Miss Universe, movie actresses, society matrons and women included on the lists of the best-dressed in California. The record also established the petitioner's practice of lecturing at U.S. fashion shows and California colleges and universities. As in Sonegawa, we may consider evidence of a petitioner's ability to pay beyond its net income and net current asset amounts. We may consider 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 5 Numbers in parentheses reflect negative amounts.
  12. 12. Matter ofF-&F-, PLLC former employee or an outsourced service, and any other evidence of a petitioner's ability to pay the proffered wage. In the instant case, the record indicates the Petitioner's continuous business operations since 2006. Copies of the Petitioner's federal income tax returns also reflect increasing gross revenues and wages paid from 2011 through 2013. The Petitioner attributes the losses reflected on its tax returns for 2011 and 2012 to increased costs from its "aggressive expansion" into New York and its "aggressive advertising" of its entire business. However, unlike the petitioner in Sonegawa, the record does not indicate that the Petitioner ever possessed the ability to pay the Beneficiary's proffered wage based on its low net income and negative net current assets in 2013, the year ofthe petition's priority date. Citing a high peer-review rating from other U.S. law firms, the Petitioner argues that it "has grown into a well-respected and recognizable law firm with high levels of customer service, results and competency." However, the record does not indicate the Petitioner's enjoyment of a reputation in the legal industry that matches the outstanding reputation attained by the petitioner in Sonegawa in the fashion industry. Thus, assessing the totality of the circumstances in this case, the record does not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. The record does not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the Director's decision and dismiss the appeal. The petition will be denied for the above-stated reason. In visa petition proceedings, a petitioner bears the burden of establishing eligibility for the beneficiary sought. Section 291 of the Act, .8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden was not met. ORDER: The appeal is dismissed. Cite as Matter ofF-&F-, PLLC, ID# 13233 (AAO Nov. 6, 2015)

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