dismissed EB-3 Case: Architecture

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N .W ., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
86 
FILE: WAC 03 269 53765 Office: CALIFORNIA SERVICE CENTER Date: MAR 3 0 2006 
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. 8 1153(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. 
~obert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 269 53765 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an architect's firm. It seeks to employ the beneficiary permanently in the United States as an 
architectural drafter. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification, approved by the Department of Labor, accompanies the petition. The director determined that 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage 
beginning on the priority date of the visa petition. The director denied the petition accordingly. 
On appeal, counsel submits a brief. 
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 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 
204.5(d). 
Here, the Form ETA 750 was accepted on November 16, 2001. The proffered wage as stated on the Form 
ETA 750 is $22.62 per hour ($47,049.60 per year). 
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 1992, to have a gross annual income of $600,000, 
and to currently employ seven workers. According to the tax returns in the record, the petitioner's fiscal years 
lasts from January 1 to December 31. On the Form ETA 750B, signed by the beneficiary on October 19, 
200 1, the beneficiary claimed to have worked for the petitioner since August 1999. 
With the petition, the petitioner submitted the following documents: 
Counsel'sG-28;and, 
A copy of the petitioner's Form 1 120 for 2000 and 2001. 
On July 19, 2004, the director requested additional evidence pertinent to that ability. In accordance with 
8 C.F.R. $ 204.5(g)(2), the director specifically requested that the petitioner provide copies of annual reports, 
federal tax returns, or audited financial statements to demonstrate its continuing ability to pay the proffered 
wage beginning on the priority date. The director specifically requested evidence of: 
The petitioner's ability to pay the proffered wage for the years 2002 and 2003; 
The petitioner's Form DE-6 Quarterly Wage Reports for the last four quarters; and, 
Copies of the beneficiary's federal income tax returns and W-2 Wage and tax Statements for 1999 to the 
present. 
WAC 03 269 53765 
Page 3 
In response, the petitioner submitted: 
The petitioner's Form 1120 for 2002 and 2003; 
The petitioner's Form 941 Employer's Quarterly Federal Tax Return for each quarter of 2003. 
The beneficiary's W-2s from the petitioner for 2001-2003; 
Copies of the petitioner's bank statements for 2001-2003 and parts of 2004 showing the company's 
pension plan, business banking account, and investments. 
The director denied the petition on November 8, 2004, finding that the evidence submitted with the petition 
and in response to its Request for Evidence did not establish that the petitioner had the continuing ability to 
pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts the director ignored the petitioner's evidence, which showed it has the ability to 
pay the proffered wage, in that the petitioner's owner owns enough real property, worth more than $300,000, 
to borrow enough to cover the proffered wage. Further, given the evidence of the petitioner's extensive 
property holdings and assets, the director should have concluded that the petitioner has the ability to pay the 
proffered wage. Further, CIS and its predecessor agencies lacked congressional authority to adopt the 
regulation at 8 C.F.R. 204.5(g)(2), requiring employers to prove their ability to pay the proffered wage for 
employment-based visas. 
At the outset, we are not in agreement with counsel's assertion, that 8 C.F.R. 3 204.5(g)(2) is "an unlawful 
ultra vires requirement." Matter of Great Wall 16 I. & N. Dec. 142, (Reg. Comm. 1977), states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could not pay 
the offered wage at the time the petition was filed, should subsequently become eligible to have the 
petition approved under a new set of facts hinged upon probability and projections, even beyond the 
information presented on appeal. 
Eligibility for the preference being sought at the time of filing of the petition was previously decided by 
the Regional Commissioner in Matter of Katigbak, 14 I. & N. Dec. 45. . . .The petitioner in the instant 
case cannot expect to establish a priority date for visa issuance for the beneficiary when at the time of 
making the job offer and the filing of the petition with this Service he could not, in all reality, pay the 
salary as stated in the job offer. See Matter of Sonegawa, 12 I. & N. Dec. 612, wherein it is held that 
the petitioner must demonstrate financial ability to meet the wage requirements of the certified job 
offer. 
More recently, it was noted on proposed regulations in the Federal Register, at 56 FR 30703 (July 5, 1991): 
Current regulations do not contain the requirement that, in a third or sixth preference case, a 
prospective United States employer demonstrate the ability to pay the wage offered the alien. However, 
the requirement of demonstrating the ability to pay the wage is based currently on case law, and 
these regulations will reflect that requirement. In line with the requirement that aliens be capable of 
performing the job at the time of filing the petition, the ability to pay the wage must be demonstrated as 
of that date. [Emphasis supplied] 
Further, the regulations have been promulgated consistent with the requirements of the Administrative 
Procedures Act. The AAO must follow the law and regulations. Case law has consistently acknowledged 
AAO's ability to review an employer's ability to pay. See, as examples, 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 
WAC 03 269 53765 
Page 4 
Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), 
aff d, 703 F.2d 571 (7th Cir. 1983). 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (CIS) 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 prima facie proof of the 
petitioner's ability to pay the proffered wage. In the instant case, the petitioner established that it employed 
and paid the beneficiary $1 1,175 in 200 1, $26,490 in 2002, and $23,288.50 in 2003. Therefore, the petitioner 
has not established that it employed and paid the beneficiary the full proffered wage during the period from 
the priority date through 2003. Instead, the petitioner paid partial wages that were $35,874.60 less than the 
proffered wage in 2001, $20,559.60 less in 2002, and $23,761.10 less in 2003. The petitioner is obligated to 
demonstrate that it could pay the difference between the wages actually paid to the beneficiary and 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, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses. 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), afd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's 
gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages 
in excess of the proffered wage is insufficient. 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $47,049.60 per year from the priority date. 
In 2003, the Form 1120 stated net income' of $2,682. 
In 2002, the Form 1 120 stated net income of -$44,633. 
In 2001, the Form 1120 stated net income of -$36,874.60. 
Therefore, for the years 2001 through 2003, the petitioner did not have sufficient net income to pay the 
difference between the wage paid and 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. 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 liabilities.' 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
2 
 According to Barron 's Dictionary of Accounting Terms 1 17 (31~ 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 
WAC 03 269 53765 
Page 5 
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 the years in question, were $3,388 in 2001, -$3,251 in 2002, and -$2,634 in 2003. 
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 
difference between the wage paid and 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. 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
ability to pay the proffered wage from the priority date. Counsel states that the petitioner's owner has the 
ability to pay the proffered wage because it has enough fixed asset collateral to borrow more than $300,000 
on its real property alone. Further, contrary to counsel's assertion, Citizenship and Immigration Services 
(CIS) may not "pierce the corporate veil" and look to the assets of the corporation's owner to satisfy the 
corporation's ability to pay the proffered wage. It is an elementary rule that a corporation is a separate and 
distinct legal entity from its owners and shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of 
Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 I&N Dec. 63 1 (Act. 
Assoc. Comm. 1980). Consequently, 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. 
We reject the idea put forward by counsel that the petitioner's total assets, such as its real estate or other 
investment assets, should have been considered in the determination of the ability to pay the proffered wage. 
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. As to counsel's suggestions of putting up corporate land for 
loan collateral, a loan, the potential of a loan is not founded on a contractual or legal but, like a commitment 
to loan, are not available at the time of filing the petition. As noted above, a petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Moreover, the petitioner's existent loans will be reflected in the balance sheet provided in the tax return or 
audited financial statement and will be fully considered in the evaluation of the corporation's net current 
assets. Comparable to the limit on a credit card, a real estate loan cannot be treated as cash or as a cash asset. 
However, if the petitioner wishes to rely on such a loan, the petitioner must submit documentary evidence, 
such as a detailed business plan and audited cash flow statements, to demonstrate it will augment and not 
weaken its overall financial position. Finally, CIS will give less weight to loans and debt as a means of 
paying salary since the debts will increase the firm's liabilities and will not improve its overall financial 
position. CIS must evaluate the overall financial position of a petitioner to determine whether the employer is 
making a realistic job offer and has the overall financial ability to satisfy the proffered wage. See Matter of 
Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
accrued expenses (such as taxes and salaries). Id. at 11 8. 
WAC 03 269 53765 
Page 6 
the Form ETA 750 was accepted for processing by any office within the employment system of 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. 
6 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.