dismissed EB-3 Case: Bakery

- 
PUBLIC COPY 
U.S. ~epartn6nt of Xlon~eland Security 
20 Mass. Ave., N.W., Rm. 3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
04 
FILE: EAC-04-106-53225 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. 
 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- 106-53225 
Page 2 ! 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center, and is now before the Administrative Appeals Office (MO) on appeal. The appeal will be 
dismissed. 
The petitioner is a bakery. It seeks to employ the beneficiary permanently in the United States as a baker.' 
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 record failed to 
establish 1) the petitioner's ability to pay the proffered wage as of date of filing and continuing to the present; 
2) the beneficiary had the required experience in the job offered or related occupation as of the date of filing; 
and 3) failed to include the required ETA 750 Part B for the substituted beneficiary. The director denied the 
petition accordingly. 
On appeal, counsel submits additional e~idence.~ 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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 8 C.F.R. 5 204.5(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 C.F.R. 9 
204.5(d). 
1 
 The instant petition is for a substituted beneficiary. An 1-140 petition for a substituted beneficiary retains 
the same priority date as the original ETA 750. Memo. from Luis G. Crocetti, Associate Commissioner, 
Immigration and Naturalization Service, to Regional Directors, et al., Substitution of Labor CertzJication 
Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fm/fm96/fm28-96a.pdf (March 7, 1996). 
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. 5 103.2(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). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
EAC-04-106-53225 
Page 3 
Here, the Form ETA 750 was accepted on March 27, 2001. The proffered wage as stated on the Form ETA 
750 is $1 1.87 per hour ($24,689.60 per year). The Form ETA 750 indicates that the position of baker requires 
two years of experience in the job offered or in the related occupations of baker or kitchen helpers as 
minimum requirements. The evidence in the record of proceeding shows that the petitioner is structured as an 
S corporation and the petitioner's fiscal year is based on a calendar year. On the petition, the petitioner 
claimed to have been established in 1998, to have a gross annual income of $757,000, to have a net annual 
income of $67,000, and to currently employ 15 workers. 
The petitioner submitted the petition with a request of substitution from the petitioner but without a Form 
ETA 750B for the new beneficiary, an experience letter from a former employer concerning the beneficiary's 
employment experience, and the petitioner's tax returns for 2001 and 2002. 
On August 17, 2004 the director denied the petition, finding that the petitioner did not establish that (1) it had 
the ability to pay the proffered wage beginning on the priority date; (2) the beneficiary had the required 
experience in the job offered or related occupation as of the date of filing; and (3) the petition failed to include 
the required ETA 750 Part B for the substituted beneficiary. 
On appeal counsel submits a Form ETA 750B for the substituted beneficiary, letters from the petitioner 
regarding the termination of the previous beneficiary's employment, a copy of Employer's Quarterly State 
Report of Wages Paid to Each Employees for the fourth quarter of 2001, and a printout of Employee's Wage 
& Tax W-2 Backup for 2001 and 2002. 
The first issue the AAO will discuss in the instant case is whether the petitioner established that it had the 
ability to pay the proffered wage beginning on the priority date. 
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 petition is for a substituted beneficiary. 
The petitioner requested for substitution and verified in letters that previous b'eneficiary no longer works for 
the petitioner. Therefore, wages paid to that previous beneficiary can be considered as a part of the 
petitioner's ability to pay. On appeal counsel submits the petitioner's quarterly state report of wages paid to 
all employees for the fourth quarter of 2001, and the previous beneficiary's W-2 Backup for 2001 and 2002. 
These documents show that the petitioner paid the previous beneficiary $18,060 in 2001 and $22,046 in 2002, 
which were $6,629.60 less than the proffered wage in 2001 and $2,643.60 less than the proffered wage in 
2002. The petitioner did not submit any evidence for the instant beneficiary's compensation from the 
petitioner although the beneficiary claimed to have worked for the petitioner since August 2000. Therefore, 
the petitioner did not establish that it paid either the previous beneficiary or the instant beneficiary the full 
proffered wage in 2001 and 2002. The petitioner is obligated to demonstrate that it could pay the difference 
of $6,629.60 in 2001 and of $2,643.60 in 2002 between wages actually paid to the previous 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. EIatos Restaurant Corp. v. Suva, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
EAC-04-106-53225 
Page 4 
(citing Tongatapu Woodcraji 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., I~zc. v. Suva, 623 F. Supp. 1080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. 111. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
Counsel's 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. 
In K.C.P. Food Co., Inc. v. Suva, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now CIS, had properly relied on the petitioner's net ihcome 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 evidence indicates that the petitioner is an S corporation. The record contains copies of the petitioner's 
Form 1120s U.S. Income Tax Return for an S Corporation for 2001 and 2002. The petitioner's tax returns 
demonstrate the following financial information concerning the petitioner's ability to pay the difference 
between the wages already paid to the previous beneficiary and the proffered wage from the priority date: 
Tax Wage increase needed Surplus or 
Year Net income to pay the proffered wage deficit 
Therefore, the petitioner had sufficient net income to pay the instant beneficiary the difference between the 
wages already paid and the proffered wage for the year 2002, but did not have sufficient net income to pay the 
difference between the wages paid and the proffered wage for the year 200 1. 
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. 
Ordinary income (loss) from trade or business activities as reported on Line 2 1. 
EAC-04-106-53225 
Page 5 
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. 
Calculation based on the Schedule L's attached to the petitioner's 2001 tax return yields that the petitioner 
'had net current assets of $8,557 at the end of the year 2001. The petitioner had sufficient net current assets to 
pay the instant beneficiary the difference of $6,629.60 between the wages already paid to the previous 
beneficiary and the proffered wage for the year 200 1. Therefore, it appears that the petitioner established that 
it had ability to pay the instant beneficiary the proffered wage in 2001 and 2002. 
However, CIS record shows that the petitioner filed another Immigrant Petition.for Alien Worker (Form I- 
140) for two more workers. One of.them was filed with Vermont Service Center on December 7, 2002,' 
using the priority date of March 27,2001 reflected on a Form ETA 750. The petition was approved on April 
14, 2004 and the alien obtained permanent resident'status on April 29, 2006. The other 1-140 immigrant 
petition was filed with the Nebraska service Center on April 27, 2006.~ The beneficiary of that petition is the 
previous beneficiary whom was replaced by the instant beneficiary with the instant petition.7 The petitioner 
must demonstrate this ability at the time the priority date is established and continuing until the beneficiary 
obtains lawful permanent residence. 8 C.F.R. 9 204.5(g)(2). In the instant case the priority date is April 27, 
2001. Therefore, the petitioner must show that it had sufficient income to pay each of the beneficiaries the 
proffered wage fiom the year of the priority date for each petition (at least two from 200 1 until 2006) until the 
present. The petitioner established its ability to pay the instant beneficiary the proffered wage using the 
wages paid to the previous beneficiary in 2001. However, the record does not demonstrate that the petitioner 
had sufficient net income or net current assets to pay the instant beneficiary'after it paid the beneficiary whose 
petition was already approved in April 2004. 
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 because of multiple pending petitions. Counsel's assertion and evidence submitted on appeal cannot 
overcome the portion of the director's decision that the petitioner failed to establish its continuing ability to 
pay the proffered wage. This portion of the director's decision is affirmed. 
The second issue the AAO will discuss in the instant case is whether the petitioner established that the 
beneficiary had the required experience in the job offered or related occupation as of the date of filing. . 
4 
According to Burron's Dictionary of Accounting T~AS 11 7 (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 118. 
CIS receipt number: EAC-03-054-5 1389. 
6 
 CIS receipt number: LIN-06-153-522 18. 
7 
 A certified Form ETA 750 may only be used by one alien to adjust status to lawful permanent resident. 
EAC-04-106-53225 
Page 6 
A labor certification is an integral part of this petition, but' the issuance of a Form ETA 750 does not mandate the 
approval of the relating petition. To be elig~ble for approval, a beneficiary must have all the education, training, 
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. 5 103.2(b)(l), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 
I. & N. Dec. 45, 49 (Reg. Comm. 1971). The priority date 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. 9 204.5(d). 
The priority date in the instant petition is March 27,2001. 
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 Commissa y of Massachusetts, Inc. v. Coomey, 66 1 F.2d 1 (1 st Cir. 198 1). 
The certified Form ETA 750 in the instant case states that the position of baker requires two (2) years of 
experience in the job offered or in the related occupation. On the Form ETA 750B, signed by the beneficiary on 
May 1, 2003 and submitted on appeal, the beneficiary set forth his work experience. He listed his experience 
as a "Baker" at the petitioner from August 2000 to the present, and a "Baker" at 
Mandaluyong City, Philippines from 1997 to 1999. 
 - 
The regulation at 8 C.F.R. $204.5(g)(l) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) of trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
With the initial filing the petitioner submitted an employment certification from Goldilocks Bakeshop, Inc. 
pertinent to the beneficiary's qualification as required by the above regulation. In her denial notice the 
director determined that "[als this letter does not specific dates of employment, to include the 
beginning and ending months of employment with the record fails to show the beneficiary has the 
required two years of experience in the job counsel does not provides any assertions and 
evidence for the beneficiary's qualification.8 
as issued November 28, 1999 in Mandaluyong City, signed by 
This letter states in pertinent part that: 
This is to certify that [the beneficiary] has been employed by 
s BAKER from 1997-1999. 
(Emphasis in original.) 
8 
 The appeal could have been summarily dismissed since as stated in 8 C.F.R, 5 103.3(a)(l)(v), an appeal shall be 
summarily dismissed if the party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
EAC-04-106-53225 
Page 7 
This letter is on the company's letterhead, however, without any contact information for the former employer 
and the writer, such as address, and telephone number. The letter does not include a specific description of the 
duties performed by the beneficiary or of the training received as required by the regulation. In addition, as the 
director correctly noted, the letter does not provide the beginning and ending months of the employment. 
Moreover, the letter was dated ~ovember 28, 1999. Even though the beneficiary had started the employment 
fi-om early January of 1997 until the date of the letter, the beneficiary's employment with 
Lh 
would have 
been only 23 months, which would not meet the requirement of two years of experience. 
 erefore, the 
experience lettcr from 
 cannot be considered as primary regulatory-prescribed 
evidence to establish t 
 d as a baker or baker or kitchen helper for at least two 
years as required by the ETA 750. The AAO concurs with the director's decision on this issue and affirms 
the portion of the director's decision that the petitioner failed to establish that the beneficiary had the required 
experience for the proffered position. 
The third ground of the director's denial is that the petition does not include the Form ETA 750 Part B for the 
substituted beneficiary. The record of proceeding contains a Form ETA 750B for the instant beneficiary 
which counsel submits on appeal. Therefore, the portion of the director's decision that the petition does not 
include the ETA 750B for the beneficiary is withdrawn. 
In view of the foregoing, the decision of the director will be withdrawn in part and affirmed in part. The 
petition will remain denied for the above stated reasons with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.