dismissed EB-3 Case: Auto Body Repair

identifyingdatadeletedto
preventclearlyunwarranted
. in~asion ofpersonalprivacy
PUBLICcopy
U.S. Department of Homeland Security
20 Mass, N.W. Rm. A3042
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE:
SRC 03 15752716
Office: TEXAS SERVICE CENTER Date: .HAY 1 02006
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professionalpursuant 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.
Ro ert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now
before the Administrative Appeals Office on appeal. The appeal will be dismissed.
The petitioner is a body shop.' It seeks to employ the beneficiary permanently in the United States as an
automobile-body repairer. As required by statute, the petition is accompanied by a Form ETA 750,
Application for Alien Employment Certification, approved by the U. S. 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 on the priority date of the "Visa petition; and, that the director determined that the
petitioner had not established that the beneficiary has the requisite experience as stated on the labor certification
petition. The director denied the petition accordingly.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8' U.S.C. § 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.
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability ofprospective 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 regulation at 8 CFR § 204.5(l)(3)(ii) states, in pertinent part:
(A) General. Any requirements of training or experience for skilled workers, professionals, or
other!workers must be supported by letters from trainers or employers giving the name, address,
and title of the trainer or employer, and a descriptionof the training received or the experienceof
the alien.
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied by
evidence that the alien meets the educational, training or experience, and any other requirements
of the individual labor certification, meets the requirements forSchedule A designation, or meets
the requirements for the Labor Market Information Pilot Program occupation designation. .The
minimum requirements for this classification are at least two yearsof training or experience.
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. The petitionermust
. also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750
Application for Alien Employment Certificationas 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. Comm. 1977).
1 The petitioner is also known as Floridavest Corp.
Page 3
Here, the Form ETA 750 was accepted on April 12,2001. The proffered wage as stated on the Form ETA
750 is $15.69 per hour ($32,635.20 per year). The Form ETA 750 states that the position requires two years
experience.
On appeal, counsel submits a legal brief and additional evidence.
With the petition, counsel submitted copies of the following documents: the original Form ETA 750,
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal
Revenue Service Form tax returns for 2001 and 2002; a job verification dated March 27, 1998; four W-2
Wage and Tax Statements; and, copies of documentation concerning the beneficiary's qualifications as well
as other documentation.
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8
C.F.R. § 204.5(g)(2), the director issued a notice of intent to deny on October 25, 2004, for pertinent evidence of
the petitioner's ability to pay the proffered wage beginning on the priority date. The director requested the
beneficiary's W-2 Wage and Tax Statements for 2001, 2002 and 2003 also pay stubs, and cancelled payroll
checks. The director requested evidence of the petitioner's ability to pay the proffered wage for 2003. The
director also requested annual reports with audited financial statements, federal tax returns, or annual reports.
Relative to thebeneficiary's Form ETA Part B, the director requested the original document.
In response to the request counsel submitted a copy of the beneficiary's original Form ETA Part B; the
beneficiary's driver's license and Employment Authorization Card; Form I-797N;the petitioner's 2003 U.S.
federal tax return; a financial statement prepared without an audit; the petitioner's U.S. Internal Revenue
Service (IRS) Form 1120S tax return for year 2003; approximately 22 checking account statements; the
beneficiary's Form 1099-MISC for 2003; 14 cancelled checks issued in 2004; beneficiary's amended Form
1040X tax return for 2003 with the beneficiary's and spouse's personal tax information; and, a State of Florida
personal tax return.
The director denied the petition on December 3, 2004, finding that the evidence submitted did not establish
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date, and, that
the director determined that the petitioner had not established that the beneficiary has the requisite experience as
stated on the labor certification petition-.
On appeal, counsel asserts that the employment of the beneficiary "will be a source of increased revenues" to
petitioner; and, the petitioner's ability to pay is not reflected in the petitioner's tax 'returns. Counsel asserts,
"... the balance sheet is only a snap shot of the employer's assets."
Counsel has submitted copies of the following documents to accompany the appeal statement: a job
verification dated March 27, 1998; and, an excerpt of commentary to the U.S. Department of Labor PERM
regulations. (Since the Form ETA 750 was accepted on April 12, 2001, the later PERM regulations are not
applicable to the subject case). Also submitted were the U.S. federal tax returns for 2001 2002 and 2003
already submitted in response to the above mentioned notice of deny and with the petition; as well as other
documentation already submitted into the record of proceeding.
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and
.r
Page 4
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. Evidence was submitted to show that the petitioner employed
the beneficiary. The beneficiary's Form 1099-MISC for 2003 stated compensation paid of $6,584.82. Cancelled
checks were submitted showing total payments in 2004 of$4,834.68 by the petitioner to the beneficiary.
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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.V. 1985); Ubeda v. Palmer, 539 F.Supp. 647 (N.D. Ill. 1982), aff'd, 703
F.2d 571 (7th Cir. 1983). In K.c.P. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have
considered income before expenses were paid rather than net income. Finally, no precedent exists that would
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang
v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054.
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the
proffered wage of$32,635.20 per year from the priority date of April 12, 2001:
• In 2001, the Form Il20S stated a taxable income10ss2 of <$7,909.00>.3
• In 2002, the Form 1120S stated ataxable income loss of <$34,090.00>.
• In 2003, the Form l120S stated a taxable income loss of <$88,890.00>.
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. I
• In 2003, the Form 1120S stated a taxable income loss of <$88,890.00>. The beneficiary's Form 1099­
MISC for 2003 stated compensation paid of $6,584.82. The proffered wage is $32,635.20 per year.
The sum ofthe taxable income loss and compensation for 2003 is less than the proffered wage.
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to
pay the proffered wage at any time between the years 2001 through 2003 for which the petitioner's tax returns
are offered for evidence.
CIS will consider net current assets as an alternative method of demonstrating the ability to pay theproffered
2 IRS Form 1120S, Line 21.
3 The symbols <a number> indicate a negative number, or in the context of a tax return or other financial
statement, a loss, that is below zero.
Page 5
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. That schedule is included
with, as in this instance, the petitioner's filing of Form 1120S federal tax return. The petitioner's year-end
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage.
Examining the Form 1120S U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each
of those returns indicates the following:
• In 2001, petitioner's Form 1120S return stated current assets of $1,962.00 and $31,135.00 in current
liabilities. Therefore, the petitioner had <$29,173.00> in net current assets. Since the proffered wage
is $32,635.20 per year, this sum is less than the proffered wage.
• In 2002, petitioner's Form 1120S return stated current assets of $2,743.00 and $64,873.00 in current
liabilities. Therefore, the petitioner had <$62,130.00> in net current assets. Since the proffered wage
is $32,635.20 per year, this sum is less than the proffered wage.
• In 2003, petitioner's Form 1120S return stated current assets of $5,034.00 and $156,755.00 in current
liabilities. Therefore, the petitioner had <$151,721.00> in net current assets. Since the proffered
wage is $32,635.20 per year, this sum is less than the proffered wage.
Therefore, for the period 2001 through 2003 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 ability to pay the beneficiary
the proffered wage at the time of filing through an examination of its net current assets.
Counsel asserts that the petitioner's ability to pay is not reflected in the petitioner's tax returns. Counsel
asserts, " ... the balance sheet is only a snap shot of the employer's assets." According to regulation,' copies
of annual reports, federal tax returns, or audited financial statements are the means by which petitioner's
ability to pay is determined, As is described above there are several alternative methods in which the
petitioner may demonstrate its ability to pay the proffered wage. In this case, neither taxable income, net
current assets, actual wages paid the beneficiary, or actual wage plus net current assets demonstrates that the
petitioner had the ability to pay the proffered wage from the priority date.
Counsel asserts that the employment of the beneficiary "will be a source of increased revenues" to petitioner.
Since the beneficiary has been employed by the petitioner in 2003 and 2004, counsel's premise has not been
substantiated by the largest taxable loss reported, <$88,890.00>, in 2003 out of the three years examined.
Further, in this instance, no detail or documentation has been provided to explain how the beneficiary's
empl~ment as an automobile - body repairer will significantly increase petitioner's profits. The unsupported
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary
weight. See INS v. Phinpathya, 464 U.S. 183, 188.:89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec.
503 (BIA 1980). This hypothesis cannot be concluded to outweigh the evidence presented in the corporate
tax returns.
4 According to Barron's Dictionary of Accounting Terms 117 (3T ded. 2000), "current assets'tconsist of items havii
(in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Curre
liabilities" are obligations payable (in most cases) within one year, such as accounts payable, shod-term notes payabl
and accrued expenses (such as taxes and salaries). Id. at 118.
s 8 C.F.R. § 204.5(g)(2).
Page 6
Counsel submits a financial statement prepared without an audit as evidence of the ability to pay the proffered
wage. The unaudited financial statements that petitioner submitted are not persuasive evidence. According to
the plain language of 8 C.F.R. § 204.5(g)(2), where the petitioner relies on financial statements as evidence of
a petitioner's financial condition and ability to pay the proffered wage, those statements must be audited.
Unaudited statements are the unsupported representations of management. The unsupported representations
of management are not persuasive evidence of a petitioner's ability to pay the proffered wage. Thus, the
unaudited financial statements are of little evidentiary value in this matter.
Counsel urges the consideration of the beneficiary's proposed employment as an indication that the
petitioner's income will increase. Counsel cites Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C.
Cir. 1989), in support of this assertion. Although part of this decision mentions the ability of the beneficiary
to generate income, the holding is based on other grounds and is primarily a criticism of CIS for failure to
specify a formula used in determining the proffered wage. Further, in· this instance, no detail or
documentation has been provided to explain how the beneficiary's employment as a automobile-body repairer
will significantly increase profits for the petitioner. This hypothesis cannot be concluded to' outweigh the
evidence presented in the corporate tax returns. .
The second issue to be discussed in this case is whether or not the petitioner had established that the
beneficiary has the requisite experience as stated on the labor certification petition. To be eligible for approval, a
beneficiary must have the education and experience specified on the labor certification.See Matter of Wing's Tea
House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
To determine whether a beneficiary is eligible for an employment based immigrant visa, Citizenship &
Immigration Services (CIS) must examine whether the alien's credentials meet the requirements set forth in the
labor certification. In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the
labor certification to determine the required qualifications for the position. CIS may not ignore a term of the
labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese
Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir.
1983); K.R.K. Irvine, Inc.. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, item 14, sets forth the
minimum education, training, and experience that an applicant must havefor the position of an automobile-body
repairer.
In the instant case, item 14 describes the requirementsof the proffered position as follows:
14. Education .
Grade School
High School
College
College Degree Required
Major Field of Study
Training
Experience (YearslMonths)
Training
Years (YearslMonths)
Q
2
Q
N/A
N/A
Q
2/0
N/A
Q
Page 7
. In the instant case, the Application for Alien Employment Certification, Eorm ETA-750B, item 15, set forth
work experience that an applicant listed for the position of an automobile-body repairer.
15. WORK EXPERIENCE
a. NAME AND ADDRESS OF EMPLOYER
Odd Jobs
NAME OF JOB
N/A
DATE STARTED
Blank
DATE LEFT
Blank
KIND OF BUSINESS
Blank
DESCRIBE IN DETAIL DUTIES ...
N/A
NO. OF HOURS PER WEEK
Blank
15. WORK EXPERIENCE
b. NAME AND ADDRESS OF EMPLOYER
New York
NAME OF JOB
Automobile-body repairer
DATE STARTED
Month - 01 [January] Year - 1998
DATE LEFT
Month - 01 [January] - 2000
KIND OF BUSINESS
Body shop
DESCRIBE IN DETAIL DUTIES ...
Repair damaged bodies and body parts of automotive vehicles ...
NO. OF HOURS PER WEEK
40
15. WORK EXPERIENCE
c. NAME AND ADDRESS OF EMPLOYER
Classic U.S.A.
NAME OF JOB
Automobile-body repairer
DATE STARTED
Month - 02 [February] Year - 1997
DATE LEFT
Month - 04 [April] - 1998
Page 8
KIND OF BUSINESS
Body shop
DESCRIBE IN DETAIL DUTIES ...
Repair damaged body parts of automotive vehicles.
NO. OF HOURS PER WEEK
40 c
In this case the beneficiary's Form G-325A dated April 29, 2003, stated that he was employed in odd jobs from
February 1997 to the date of signing as an automobile body repairer with no other employment list for the five
prior years. As noted by the director, the above stated employment with New York Painting Body Shop, Inc. and
Classic U.S.A. conflicts with the Form G-235A information. Other than resubmitting job verification dated
March 27, 1998 from New York there was no explanation offered on appeal by any
party for the inconsistency injob experience affirmations.
The purpose of the Notice of the Intent to Deny is to elicit further information that clarifies whether eligibility
for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8)
and (12). The failure to submit requested evidence to explain the inconsistency that precludes a material line
of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Further, the pertinent
regulation states in part; "Any requirements of training or experience for skilled workers, professionals, or other
workers must be supported by letters from trainers or employers giving the-name, address, and title of the trainer
or employer, and a description of the training received or the experience of the alien." See 8 CFR
§ 204.5(l)(3)(ii). Since there is no description of the training received or the experience of the alien, this job
verification has less probative value in this matter.
There are inconsistencies in information provided by the beneficiary. Matter of Ho, 19 I&N Dec. 582, 591
(BIA 1988) states: "Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition." Matter of
Ho, 19 I&N Dec. at 591-592 also 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."
The AAO concurs with the director's determination that no probative evidence establishes that the beneficiary
has two years of experience as an automobile-body repairer. No pay stub contained in the record of
proceeding establishes that the beneficiary was employed for two years in an employment capacity with
duties similar to the duties of the proffered position prior to the priority date.
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered
wage beginning on the priority date. The evidence submitted does not demonstrate credibly that the beneficiary
had the requisite two years of experience. Therefore, the petitioner has not established that the beneficiary is
eligible for the proffered position.
Counsel's contentions cannot be concluded to outweigh the evidence presented in the corporate tax returns as
submitted by petitioner that shows that the petitioner has not demonstrated its ability to pay the proffered
wage from the day the Form ETA 750 was accepted for processing by any office within the employment
, system of the Department of Labor.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1361. The petitioner has not met that burden. /
Page 9
ORDER: The appeal is dismissed.