Stop Beating that Dead Horse, Please

By Joseph P. Whalen (August 15th 2022)

 

Matter of Sonegawa is a precedent decision from the former INS that lays out a framework for performing a qualitative analysis and evaluation of a petitioning employer’s ability to pay the proffered wage.  This particular analysis is an examination of evidence that goes beyond a strict quantitative financial analysis. Dollars and cents are, of course, absolutely necessary to actually pay the wages to the beneficiary but this subject matter is not always “black and white” and thus not always easy to decide. As a former colleague of mine used to love to say (very frequently); “It’s  just not that simple.”

This series of decisions chronicle the multiple failed attempts to classify a beneficiary’s position because the evidence failed to impress the initial adjudicator at least twice in the initial decision and then in reviewing the first appeal. Following that, the AAO was unimpressed on five additional occasions.  The petitioner, a law office, sought to employ the beneficiary as an immigration law clerk as an EB-3 “professional” with a baccalaureate degree. Although not discussed in detail, the beneficiary and the position seem to have been acceptable.  The only issue analyzed and discussed was the ability to pay.  That issue is central to employment-based visa petitions after all, 

In MATTER OF F-&F-, PLLC Nos. I-V (AAO 2015-2018), the petitioner could not overcome the finding that even under a Sonegawa analysis, it could not establish the ability to pay. Following a thorough Sonegawa analysis that would be revisited five times by AAO, this petitioner could not establish its ability to pay the proffered wage of $56,451 from the September 26, 2013, priority date through time of most recent adjudication decision. The last being discussed in the May 10, 2018, AAO dismissal of the combined motions.  What follows are links to the precedent decision from 1967, and the five posted AAO dismissals in this case. The initial decision is not available because it was not made public. Individual initial decisions are rarely made available unless they become part of a court case challenging the USCIS and AAO decisions.  In this case it took until that final administrative challenge for the petitioner to actually submit the documents initially requested and AAO found that they failed to establish eligibility. 

Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967), held:

Approval of a visa petition filed by the owner and proprietress of a custom dress and boutique shop to accord beneficiary preference classification under section 203(a) (6) of the Immigration and Nationality Act, as amended, as an assistant clothes designer, is not precluded by the fact that petitioner's net profit for the previous year is not commensurate with the salary specifications of the labor certification where it is found that petitioner's business has increased ; that her expectations of continued increase in business and profits are res. sonable expectations; and it has been established that she has the ability to meet the wages stipulated in the labor certification.  

 

NOV 06 2015 - Immigrant Petition for Alien Worker (Professionals and Other Workers)

www.uscis.gov/sites/default/files/err/B6%20-%20Skilled%20Workers%2C%20Professionals%2C%20and%20Other%20Workers/Decisions_Issued_in_2015/NOV062015_01B6203.pdf 

Cite as Matter of F-F- PLLC ID# 13233 (AAO Nov. 6, 2015)

 

MAY 23 2016 - Immigrant Petition for Alien Worker (Professionals and Other Workers)

www.uscis.gov/sites/default/files/err/B6%20-%20Skilled%20Workers%2C%20Professionals%2C%20and%20Other%20Workers/Decisions_Issued_in_2016/MAY232016_02B6203.pdf 

Cite as Matter of F-F- PLLC ID# 16703 (AAO May 23, 2016) 

 

MAY 25 2017 - Immigrant Petition for Alien Worker (Professionals and Other Workers)

www.uscis.gov/sites/default/files/err/B6%20-%20Skilled%20Workers%2C%20Professionals%2C%20and%20Other%20Workers/Decisions_Issued_in_2017/MAY252017_02B6203.pdf 

Cite as Matter of F-F- PLLC ID# 11828 (AAO May 25, 2017) 

 

NOV 08 2017 - Immigrant Petition for Alien Worker (Professionals and Other Workers)

www.uscis.gov/sites/default/files/err/B6%20-%20Skilled%20Workers%2C%20Professionals%2C%20and%20Other%20Workers/Decisions_Issued_in_2017/NOV082017_01B6203.pdf 

Cite as Matter of F-F- PLLC ID# 737692 (AAO Nov. 8, 2017) 

 

MAY 10 2018 - Immigrant Petition for Alien Worker (Professionals and Other Workers)

www.uscis.gov/sites/default/files/err/B6%20-%20Skilled%20Workers%2C%20Professionals%2C%20and%20Other%20Workers/Decisions_Issued_in_2018/MAY102018_02B6203.pdf 

or exceeded the proffered wage of $56,451 in any year since the priority date

Cite as Matter of F-F- PLLC ID# 1227651 (AAO May 10, 2018) 


About The Author


Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.