The Situation
Another firm asked me to take over a skilled-worker petition after a denial and a failed motion to reconsider. The beneficiary was a chef. The employer was a restaurant that grossed more than four million dollars a year and ran a payroll of about sixty-five people. The proffered wage was a little over twenty-two thousand dollars. The Texas Service Center had denied the I-140 on the ground that the employer could not pay it.
The reason was on the tax return. In the year that mattered, the company had reported a loss. Ability to pay is measured year by year from the priority date. A year in the red normally ends the case. The denial rested on a single year.
The First Motion
The first motion answered with size. Four million in revenue, sixty-five employees: how could the wage of twenty-two thousand be a burden? USCIS was unmoved. The regulation asks whether the employer had the net income or net current assets to pay the wage. See 8 C.F.R. § 204.5(g)(2). A large restaurant can run a large gross and still post a loss.
The motion had also reached for Matter of Sonegawa, 12 I&N Dec. 612 (Reg’l Comm’r 1967), the decision every ability-to-pay brief cites and few of them win. Sonegawa is about two things: number dressing and name dropping. A Pasadena couturier had reported a net profit of $280 in a year she paid more than nineteen thousand dollars in wages. The Regional Commissioner held that the bottom line did not by itself decide the case, and approved. Number dressing was the numbers underneath the number: the wages she had paid, a profit already running in the next year, a move that explained the thin one. Name dropping was the reputation: creations in Time and Look, gowns for a Miss Universe pageant, a clientele on the best-dressed lists. The names were not decoration; they made her forecast credible, because she was the business. Sonegawa was approved on that forecast, reasonable expectations of rising profits, as much as on the explained year. That reputation is why the case is remembered, and why it so rarely transfers. Most petitioners have no names to drop.
The first motion reached for that register and aimed at the company’s grandeur, its revenue and its headcount, which is the half of Sonegawa this restaurant could not borrow. USCIS said so:
“No unusual circumstances have been shown in this case to parallel those in Sonegawa.”
That sentence was the verdict but also the instruction. It named what the record was missing.
What the Loss Was Made Of
Sonegawa is also about tailoring. She was a couturier; the winning argument is bespoke, cut to fit the record in front of you. Most briefs cite her off the rack, one size for every case. This record had one measurement worth cutting to: the numbers. The second motion supplied two things the first had not: seven consecutive years of profitable returns before the year in question, and a one-page letter from the company’s accountant.
The letter did the work the size argument could not. The reported loss was entirely on paper. It carried $635,562 of non-cash charges: a written-off investment and a full year of depreciation and amortization, none of it money that left the business that year. Strip those entries and there is no loss left to explain.
Nothing here was reputation. There was a chef, a restaurant, and an accountant who could read a loss for what it was. And nothing here was a forecast. The couturier had to argue the good years were coming; this petitioner did not, because the loss was an accounting fiction. The only name the case needed was the CPA’s.
The Result
I filed the motion to reopen with the seven years of returns and the accountant’s letter attached. The petition was approved in four weeks.