dismissed EB-3 Case: Automotive Repair

identifying data delead tD , 
prevent clearly unwanad 
invasion of personal ptiw 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 029 52073 Office: VERMONT SERVICE CENTER 
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. 9 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 
EAC 04 029 582073 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director (director), Vermont Service Center, and 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an automobile body repair firm. It seeks to employ the beneficiary permanently in the United 
States as a foreign auto body repairer. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor (DOL), 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. 
On appeal, counsel submits additional evidence and asserts that the petitioner has had the continuing financial 
ability to pay the proffered salary. 
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 nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 9 204.5(g)(2) provides: 
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. 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 profitJloss statements, bank account records, or personnel records, 
may be submitted by the petitioner or requested by [Citizenship and Immigration Services 
(CISIl. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, 
the day the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 CFR 204.5(d). Here, the Form ETA 750 was accepted for processing on April 26, 
2001. The proffered wage as stated on the Form ETA 750 is $22.00 per hour, which amounts to $45,760 per 
annum. On the Form ETA 750B, signed by the beneficiary on October 10,2002, the beneficiary claims to have 
worked for the petitioner since July 2000. 
On Part 5 of the visa petition, filed on November 10,2003, the petitioner claims to have been established in 1997, 
to currently employ three workers, to have a gross annual income of $565,576, and to have a net annual income of 
$361,336. In support of its ability to pay the beneficiary's proposed wage offer of $45,760 per year, and in 
response to the director's request for copies of the petitioner's federal tax returns and any Wage and Tax 
EAC 04 029 582073 
Page 3 
Statements (W-2s) issued to the beneficiary in 2001-2003, the petitioner provided copies of its Form 1120S, U.S. 
Income Tax Return for an S Corporation for 200 1, 2002 and 2003. They reflect that the petitioner files its federal 
tax returns using a standard calendar year. They contain the following information: 
1 
Ordinary Income $20,6 10 $44,329 $44,835 
Current Assets (Sched. L) $ 2,480 $7,602 $ 4,908 
Current Liabilities (Sched. L) $19,332 $46,308 $75,854 
Net current assets -$16,852 -$38,706 -$70,946 
As noted above, net current assets are the difference between the petitioner's current assets and current ~iabilities.~ 
Besides net income, and as an alternative method of reviewing a petitioner's ability to pay the proffered wage, 
CIS will examine a petitioner's net current assets as a measure of a petitioner's liquidity during a given period and 
as a resource out of which a proffered wage may be paid. A corporation's year-end current assets and current 
liabilities are generally shown on Schedule L of a Form 1120s corporate tax return. Current assets are found on 
line(s) l(d) through 6(d) and current liabilities are specified on line(s) 16(d) through 18(d). If a corporation's 
year-end 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 petitioner's response did not include any W-2s issued to the beneficiary showing wages paid. Relevant to the 
beneficiary's wages, a hand-written notation dated "September 26" on the etitioner's letterhead was submitted 
showing gross wages of $880 and net wages of $671 referencing ' Copies of three of the beneficiary's 
bank statements from April, May and June of 2004 have also been provided showing regular deposits of $671. 
The director reviewed the petitioner's financial data and concluded that the evidence did not establish that the 
~etitioner had the continuing: abilitv to Dav the ~roffered wane as of the ~rioritv date. The director further noted 
The director determined that 
couldn't be concluded that the 
deposits originated as wages from the petitioner or that they establish the ability to pay the proffered wage as of 
the priority date. 
On appeal, counsel summarizes the exhibits offered and asserts that they demonstrate the petitioner's ability to 
pay the proffered wage. Counsel resubmits copies of the petitioner's 2001, 2002 and 2003 corporate tax returns. 
He also provides a copy of the beneficiary's 2004 W-2 and corresponding individual tax return. The W-2 reflects 
that the petitioner paid the beneficiary wages of $46,640 in 2004. 
1 
 For purposes of this review ordinary income will be treated as net income. 
2 
 According to Barron S Dictionaty of Accounting Terms 1 17 (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. 
EAC 04 029 582073 
Page 4 
sel also supplied a letter, dated March 1, 2005, from a certified public accounta 
Colln 
Mr. 
aintains that the petitioner's net income before the depreciation expense should be considered and that the 
employer's knowledge and expertise in meeting overhead is shown by her experience in the industry. 
These assertions are not persuasive. 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 the relevant period. If the petitioner establishes by documentary evidence that it 
employed the beneficiary at a salary equal to or greater than the proffered wage during a given period, the 
evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. To the extent 
that the petitioner paid wages less than the proffered salary, those amounts will be considered in calculating the 
petitioner's ability to pay the proffered wage. If any shortfall between the actual wages paid by a petitioner to a 
beneficiary and the proffered wage can be covered by either a petitioner's net income or net current assets during 
the given period, the petitioner is deemed to have demonstrated its ability to pay a proffered salary. As 
mentioned above, on appeal, the evidence shows that the petitioner paid the beneficiary $46,640 in 2004, which 
exceeds the proposed wage offer of $45,760. No other evidence of wages paid in previous years was provided. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during relevant period beginning at the visa priority date, CIS will next examine the net income 
figure reflected on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. If it equals or exceeds the proffered wage, the petitioner is deemed to have established its ability to 
pay the certified salary during the period covered by the tax return. 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. 
"The [CIS] may reasonably rely on net taxable income as reported on the employer's return." Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1053 (S.D.N.Y. 1986) ((citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldrnan, 
supra, and Ubeda v. Palmer, supra; see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 536 (N.D. Texas 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985). Although a depreciation deduction 
does not require or represent a specific cash expenditure during the year claimed, it does represent the systematic 
allocation of the cost of a tangible long-term asset. It may be taken to represent the diminution in value of 
buildings and equipment, or to represent the accumulation of funds necessary to replace perishable equipment and 
buildings. But the cost of equipment and buildings and the value lost as they deteriorate is an actual expense of 
doing business, whether it is spread over more years or concentrated into fewer. In K.C.P. Food Co., Inc. v. Sava, 
623 F. Supp. at 1084, 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. With regard to depreciation, the court in 
Chi-Feng Chang further noted: 
Plaintiffs also contend that 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 figures in determining petitioner's ability to pay. 
EAC 04 029 582073 
Page 5 
Plaintiffs' argument that these figures should be revised by the court by adding back 
depreciation is without support. (Original emphasis.) Chi-Feng at 536. 
If an examination of the petitioner's net income or wages paid to the beneficiary fail to successfully demonstrate 
an ability to pay the proposed wage offer, CIS will review a petitioner's net current assets. 
While the evidence indicates that the petitioner paid slightly more than the proffered salary in 2004, and may be 
reasonably construed to supply the slight shortfall to its net income in 2003, and thus have the ability to pay the 
proffered wage of $45,760 in those years, in 2002, neither its net current assets of -$38,706, nor its net income of 
$44,329 was sufficient to pay the proposed wage offer. Similarly, in 2001, it is apparent that neither the 
petitioner's net income of $20,610, nor its net current assets of -$16,852 was sufficient to pay the proffered 
wage. 
The petitioner has not established its continuing ability to pay the proffered wage beginning as of the priority 
date as required by the regulation at 8 C.F.R. 5 204.5(g)(2). It is further noted that 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). As the evidence does not establish that the petitioning company had the continuing 
ability to pay the proffered beginning on the visa priority date of April 26, 2001, the petition may not be 
approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 4 1361 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.