dismissed EB-3 Case: Accounting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
PUBLIC COPY and Immigration 
identifying data debd 
went @learfy Ud'lW-ted 
of pcmnal privacy 
Office: TEXAS SERVICE CENTER 
 Date: APR 2 4 2007 
SRC 05 191 51382 
PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an importing and wholesaling company. It seeks to employ the beneficiary permanently in 
the United States as an accounting manager. As required by statute, the petition is accompanied by a Form 
ETA 750, Application for Alien Employment Certification, approved by the Department of Labor. The 
director determined that the petitioner had not established that it had the continuing ability to pay the 
beneficiary the proffered wage beginning from 2001, the priority date year, to tax year 2004. The director 
denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary.' 
As set forth in the director's October 18, 2005 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawhl permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. $ 1153(b)(3)(A)(ii), provides for the granting of 
preference classification to qualified immigrants who hold baccalaureate degrees and are members of the 
protessions. 
The regulation 8 C.F.R. fj 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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 CFR 
fj 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Certification as certified by the U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Cornm. 1977). 
1 
 It is noted that some of the director's calculations with regard to the petitioner's net current assets are 
erroneous, and the AAO will correct the record during these proceedings. 
Page 3 
Here, the Form ETA 750 was accepted on April 24, 2001. The proffered wage as stated on the Form ETA 
750 is $25.60 per hour ($53,248 per year). The Form ETA 750 states that the position requires college, and a 
"B. Sc." in accounting, along with one year of experience in the related occupation of accounting. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1 989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
2 
pertinent evidence in the record, including new evidence properly submitted upon appeal . On appeal, 
counsel submits a copy of a memo written by William R. Yates, former Citizenship and 
0 submits a statement made by 
Houston, Texas, as well as 
Lnternet that describe the work of the above-named law firm. In hs letter -states that the 
petitioner's net income a in the relevant years can be combined to assess t e petitioner's ability to 
pay the proffered wage. uses the fi es identified by the director in hs denial of the petition, 
with regard to the petitioner's net assets. mrther states that it makes no sense why CIS would not 
and net assets into account when examining the petitioner's ability to pay the proffered 
wage. 
 en notes that in tax year 2004, the combination of the petitioner's net income and net 
to pay the proffered wage. He fbrther states that in tax years 2001 to 2003, while the 
petitioner's combined net income and net assets were not sufficient to pay the proffered wage, the petitioner 
also had discretio 
 nd entertainment expenses that could have been reallocated to make up any 
shortage of funds. 
 also states that the petitioner's depreciation expenses could have been used as 
additional funds with which to pay the proffered wage. 
also cites Matter of Sonegawa, 12 I&N Dec. 61 2, (Reg. Comm. 1967), in asserting that even if 
the petitioner's net profit is not commensurate with the proffered wage, the petitioner could establish its 
ability to pay proffered wages. The record also contains the petitioner's IRS Forms 1120, for tax years 2001 
to 2004, as well as W-2 forms for two employees for tax years 2002 to 2004. Finally the record contains the 
petitioner's Forms 941, Employer's Quarterly Federal Tax Return, for all four quarters of tax years 2001 to 
2004. 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the 
petition, the petitioner claimed to have been established in 1998, to have a gross annual income of 
$1,100,000, and to currently employ two workers. On the Form ETA 750B, signed by the beneficiary on 
December 4,2002, the beneficiary claimed that he had worked for the petitioner since September 2001. 
On appeal, counsel asserts 
 has always had the money to pay the proffered wage. Counsel 
states that the statement by 
 whose firm specializes in representing clients on financial matters 
2 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. $ 103,2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Memorandum from William R. Yates, Associate Director For Operations, Determination of Ability to Pay 
under 8 CFR 204.5(&(2), HQOPRD 90/16.45, (May 4,2004). 
before such federal agencies as the Internal Revenue Service, explains where the money for the proffered 
wage would come from. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. 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. Cornm. 1977). See also 8 C.F.R. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS 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 of Sonegawa, 12 I&N Dec. 
6 12 (Reg. Cornm. 1967). 
On appeal, counsel refers to the Yates memo, but makes no specific reference to the contents of the memo. 
Nevertheless, the AAO will comment on this memo, since as counsel correctly notes, the only issue in these 
proceedings is the petitioner's ability to pay the proffered wage. The Yates' memorandum relied upon by 
counsel provides guidance to CIS adjudicators to review a record of proceeding and make a positive 
determination of a petitioning entity's ability to pay in the following three circumstances: if the initial 
evidence reflects that the petitioner's net income is equal to or greater than the proffered wage; if the initial 
evidence reflects that the petitioner's net current assets are equal to or greater than the proffered wage; or if 
the record contains credible verifiable evidence that the petitioner not only is employing the beneficiary but 
also has paid or currently is paying the proffered wage. The AAO consistently adjudicates appeals in 
accordance with the Yates memorandum. 
Further on appeal, counsel submits a statement from another law fm that asserts the petitioner's net income 
and net current assets4 can be combined to pay the proffered wage. However, the AAO does not examine the 
petitioner's net income and net current assets in combination. Counsel advocates combining the petitioner's 
net income with its net current assets to demonstrate the petitioner's ability to pay the proffered wage. This 
approach is unacceptable because net income and net current assets are not, in the view of the AAO, 
cumulative. The AAO views net income and net current assets as two different ways of demonstrating the 
petitioner's ability to pay the wage--one retrospective and one prospective. Net income is retrospective in 
nature because it represents the sum of income remaining after all expenses were paid over the course of the 
previous tax year. Conversely, the net current assets figure is a prospective "snapshot" of the net total of 
petitioner's assets that will become cash within a relatively short period of time minus those expenses that 
will come due within that same period of time. Thus, the petitioner is expected to receive roughly one-twelfth 
of its net current assets during each month of the coming year. Given that net income is retrospective and net 
current assets are prospective in nature, the AAO does not agree with counsel that the two figures can be 
combined in a meaningful way to illustrate the petitioner's ability to pay the proffered wage during a single 
tax year. Moreover, combining the net income and net current assets could double-count certain figures, such 
as cash on hand and, in the case of a taxpayer who reports taxes pursuant to accrual convention, accounts 
receivable. 
4 
 Although 
 utilizes the term "net assets" in his analysis of the petitioner's ability to pay the 
proffered wage, the figure that he 
 identified by the director as the petitioner's net current 
assets. Therefore, the AAO regards 
 reference to be to the petitioner's net current assets. 
Page 5 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will fust 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 prima facie proof of the petitioner's ability to pay the proffered wage. On the 
Form ETA 750, Part B, and on the G-325 document submitted with the beneficiary's 1-485 petition found in 
the record, the beneficiary indicates that he had worked for the petitioner since September 2001 ; however, the 
petitioner provided W-2 Forrns for tax years 200 1, 2002, and 2003 that indicates the petitioner paid wages to 
two employees, neither of which was the beneficiary. Thus, the record is confused. Matter of Ho, 19 I&N 
Dec. 582, 591-592 (BIA 1988) states: "It is incumbent on the petitioner to resolve any inconsistencies in the 
record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent 
competent objective evidence pointing to where the truth, in fact, lies, will not suffice." In the instant case, the 
petitioner has not established that it employed and paid the beneficiary as of the 2001 priority date and 
continuing until the beneficiary obtains lawhl permanent residency. Thus the petitioner has to establish its 
ability to pay the entire proffered wage in tax years 200 1 to 2004. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
wage during that period, CIS 
 the net income figure reflected on the petitioner's 
federal income tax return, and contrary t 
 assertion, without consideration of depreciation or 
travel and entertainment. 
 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, 71 9 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 
v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). 
Althoug 
 also states that the petitioner's gross income can be used to examine the petitioner's 
ability to pay the proffered wage, 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. 
In K. C. P. Food Co., Inc. v. Sava, 623 F. Supp. at 1 084, the court held that the Immigration and Naturalization 
Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the 
argument that the Service should have considered income before expenses were paid rather than net income. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income Jigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537. 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $53,248 per year from the priority date: 
In 200 1, the Form 1 120 stated a net income5 of $17,156. 
In 2002, the Form 1120 stated a net income of $10,839 
In 2003, the Form 1 120 stated a net income of $1 7,429. 
In 2004, the Form 1 120 stated a net income of $20,809. 
Therefore, for the years 2001 to 2004, the petitioner did not have sufficient net income to pay the proffered 
wage. 
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 wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, the petitioner's 
total assets must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in 
the determination of the petitioner's ability to pay the proffered wage. Rather, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6.' Its year-end current 
liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net current assets and 
the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. 
The petitioner's net current assets during 200 1 were $7,329. 
The petitioner's net current assets during 2002 were -$2,531. 
The petitioner's net current assets during 2003 were $8,181. 
The petitioner's net current assets during 2004 were $1 8,962. 
Thus, for the years 2001 to 2004, the petitioner did not have sufficient net current assets to pay the proffered 
wage. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage as 
of the priority date through an examination of wages paid to the beneficiary, or its net income or net current 
assets. 
5 
The petitioner's net income is its taxable income before NOL deduction and special deductions, as reported 
on Line 28 of the Form 1120. 
6 
According to Barron S Dictionary of Accounting 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). Id. at 1 18. 
7 
In her decision, the director erroneously added in line 7 of Schedule L, loans to shareholders, when 
calculating the petitioner's current assets. The AAO's calculations of the petitioner's current assets are based 
on the combination of Lines 1 through 6, Schedule L. 
Page 7 
in his statement submitted to the record on appeal cites to Matter ofsonegawa, 12 I&N Dec. 6 12 
(Reg. Comrn. 1967). However, this decision relates to petitions filed during uncharacteristically unprofitable 
or difficult years but only in a framework of profitable or successfid years. The petitioning entity in 
Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about 
$100,000. During the year in which the petition was filed in that case, 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 Regional Commissioner 
determined that the petitioner's prospects for a resumption of successful business operations were well 
established. The petitioner was a fashion designer whose work had been featured in Time and Look 
magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's 
clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in California. 
The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound 
business reputation and out standing reputation as a couturiere. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that the years 2001, 2002, 2003 and 2004 were uncharacteristically unprofitable years for the 
petitioner. The petitioner also provides no further information with regard to such factors as the petitioner's 
longevity, or reputation in the industry, among other issues. As stated previously, the petitioner's W-2 Forms 
indicate that it has two employees. 
- - 
also suggests that it is reasonable to consider the beneficiary's potential to increase the 
petitioner's business and that the benefici 
 fwther improve the petitioner's efficiency. 
How ever, neither the petitioner, counsel, nor 
 ovided any standard or criterion for the evaluation 
of such earnings. For example, the petitio 
 monstrated that the beneficiary will replace less 
productive workers, or has a reputation that would increase the number of customers." 
Counsel's assertions and the assertions made by 
h 
cannot be concluded to outweigh the 
evidence presented in the tax returns as submitted by the petitioner t at demonstrates that the petitioner could 
not pay the proffered wage from the day the Form ETA 750 was accepted for processing by the Department 
of Labor. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 136 1. The petitioner has not met that burden. The appeal will be dismissed. 
8 
 It is also noted that the petitioner's owner and the beneficiary share the same last name, which may raise 
questions as to the bonafide nature of the proffered position. Under 20 C.F.R. 626.20(~)(8) and 656.3, the 
petitioner has the burden when asked to show that a valid employment relationship exists, that a bonafide job 
opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987). A 
relationship invalidating a bonafide job offer may arise where the beneficiary is related to the petitioner by 
"blood" or it may "be financial, by marriage, or through friendship." See Matter of Summart 374,OO-INA-93 
(BALCA May 15,2000). 
Page 8 
ORDER: The appeal is dismissed.