dismissed EB-3 Case: Asbestos Removal

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PZ 
FILE: EAC-04-264-50930 Office: VERMONT SERVICE CENTER Date: 
NAY 1 9 2006 
PETITION: 
 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. § 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. 
Robert P. Wiernann, Chief 
Administrative Appeals Office 
EAC-04-264-50930 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an asbestos removal firm. It seeks to employ the beneficiary permanently in the United 
States as a supervisor-asbestos handlers. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor, accompanied 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 and 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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's November 2, 2004 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 lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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 or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(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 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 100 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 profitlloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. § 204.5(d). The priority date in the instant 
petition is April 27, 2001. The proffered wage as stated on the Form ETA 750 is $26.00 per hour for 35 hours 
per week, which amounts to $47,320.00 annually.' 
' Counsel erred in stating that the annual proffered wage is $54,080.00 because that amount is based on the assumption 
that the beneficiary is employed for 40 hours per week. According to the Form ETA 750, the beneficiary is employed 
for 35 hours per week. 
EAC-04-264-50930 
Page 3 
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. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all pertinent 
evidence in the record, including new evidence properly submitted upon appeal2. Relevant evidence submitted on 
appeal includes a letter from the petitioner dated November 20,2004 and copies of the Form W-2 Wage and Tax 
Statements for 2001 and 2002 for other relevant evidence in the record includes copies of the 
beneficiary's Form W-2 Wage and Tax Statements for 2001,2002, and 2003, and a copy of the petitioner's Form 
1120 U.S Corporation Income Tax Return for 2001. The record does not contain any other evidence relevant to 
the petitioner's ability to pay the wage. 
Counsel states on appeal that the beneficiary will be replacing another worker, and the amount 
listed for cost of labor on the petitioner's 2001 tax return includes funds paid for the proffered position. 
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. Comm. 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. Comrn. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on April 25,2001, the beneficiary claimed to have 
worked for the petitioner beginning in June 2001 and continuing through the date of the ETA 750B. 
The record contains copies of the beneficiary's Form W-2 Wage and Tax Statements. The beneficiary's Form 
W-2's for 2001,2002, and 2003 show compensation received from the petitioner, as shown in the table below. 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage 
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). 
EAC-04-264-50930 
Page 4 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 Cop v. Sava, 632 F. Supp. 1049,1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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), aff'd., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a corporation. The record contains a copy of the petitioner's Form 
1120 U.S. Corporation Income Tax Return for 2001. The record before the director closed on September 24, 
2004 with the receipt by the director of the petitioner's 1-140 petition and supporting evidence. As of that date the 
petitioner's federal tax return for 2004 was not yet due. Therefore the petitioner's tax return for 2003 is the most 
recent return available. The petitioner's Form 1120 U.S. Corporation Income Tax Returns for 2002 and 2003 do 
not appear in the record. 
For a corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of the Form 1120 U.S. Corporation Income Tax Return, or the 
equivalent figure on line 24 of the Form 1120-A U.S. Corporation Short Form Tax Return. The petitioner's 2001 
tax return shows the amount for taxable income on line 28 as shown in the table below. 
Tax Wage increase needed . Surplus or 
Year Net income to pay the proffered wage deficit 
200 1 -$26,530.00 $3,899.75" -$30,429.75 
2002 No Information $5,152.00" No Information 
2003 No Information $13,437.66" No Information 
* Crediting the petitioner with the compensation actually paid to the 
beneficiary in 200 1,2002, and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, CIS may review the 
petitioner's net current assets. Net current assets are a corporate taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
EAC-04-264-50930 
Page 5 
liabilities are shown on lines 16 through 18. If a corporation's net current assets are equal to or greater than 
the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L attached to the petitioner's 2001 tax return yields the amount for net 
current assets as shown in the following table. 
Tax Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
200 1 $2,337.00 $3,899.75* 
2002 No Information $5,152.00* 
2003 No Information $13,437.66" 
* Crediting the petitioner with the compensation actually paid to the beneficiary in 
2001,2002, and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
Counsel states on appeal that the replacing another Counsel states 
that "[tlhe beneficiary is to replace 
 in the same position, since 
position," and "the remuneration 
 may now be paid to the intended beneficiary 
over the same duties and functions as 
 Evidence in support of this assertion include 
Form W-2 Wage and Tax Statements for 2001 and 2002 and a letter from the petitioner dated November 20,2004 
stating that "[oln January 16, 2004 
 a valued 
retired. When I hired [the beneficiary], it was my intention that he 
Evidence in the record names the worker, includes corn et nt evidence of the wages paid t- and 
states that the petitioner has replaced or will replace 
 with the beneficiary. In the case where the 
petitioner has established that the beneficiary will be replacing another worker performing the duties of the 
proffered position, the wages already paid to that employee may be shown to be available to prove the ability 
to pay the wage proffered to the beneficiary at the priority date of the petition and continuing to 
Thus, the petitioner has established its ability to pay the proffered wage in 2001 and 2002 because 
was paid $103,956.74 in 2001 and $68,400.00 in 2002. However, the petitioner still has not established that it 
has the ability to pay the proffered wage in 2003. 
Counsel also states on appeal that the amount for cost of labor on the petitioner's 2001 tax return includes funds 
paid for the proffered position. Counsel states that "the employer's cost of goods sold included $523,689.00 for 
cost of labor . . . [tlhe cost of labor included money which was paid for the position of asbestos removal 
supervisor." The cost of goods sold has already been taking into account in the AAO's consideration of the 
petitioner's net income. Moreover, the amount the beneficiary received in wages in 2001 is already documented 
on the beneficiary's Form W-2 Wage and Tax Statement for 2001, and the amount is less than the proffered 
wage. The cost of labor includes salaries and wages paid to other employees, and those salaries and wages are 
EAC-04-264-50930 
Page 6 
irrelevant to the issue at hand because they do not show whether or not the petitioner has additional funds to pay 
the beneficiary the proffered wage. 
After a review of the evidence, it is concluded that the petitioner has not established its ability to pay the 
salary offered as of the priority date of the petition and continuing until the beneficiary obtains lawful 
permanent residence. The decision of the director to deny the petition was correct, based on the evidence in 
the record before the director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.