dismissed EB-3 Case: Baking

kk@&ing dab deleted to 
mvent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rnl. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
MAY 1 6 2006 
Date: 
IN RE: Petitioner: 
Beneficiary: 
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. 
 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. 
mu 
Robe P. Wiemann, Chief 
Administrative Appeals Office 
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 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 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. 
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 the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's September 27, 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 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 CFR 
fj 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Certification as 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). 
Here, the Form ETA 750 was accepted on January 14, 1998. The proffered wage as stated on the Form ETA 
750 is $18.89 per hour ($39,291.20 per year). The Form ETA 750 states that the position requires four years 
of experience. 
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 
1 
pertinent evidence in the record, including new evidence properly submitted upon appeal . Counsel submits 
previously submitted evidence on appeal. Relevant evidence in the record includes the petitioner's corporate 
federal tax returns for 1998 through 2002 and a W-2 form issued by the petitioner to the beneficiary in 2003. 
The record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
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 1996, to have a gross annual income of $1 million, 
and to currently employ thirteen workers. According to the tax returns in the record, the petitioner's fiscal 
year runs from August 1 through July 3 1. On the Form ETA 750B, signed by the beneficiary on January 12, 
1998, the beneficiary did not claim to have worked for the petitioner. 
On appeal, counsel reasserts prior arguments that the petitioner's obligation to demonstrate its ability to pay 
the proffered wage in 1998 should be pro-rated, and that depreciation, cash-on-hand, gross sales and profit, 
and total assets should be considered as better measures of the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date. Counsel adds together cash, assets and depreciation and net 
income to obtain the petitioner's working capital for each year under analysis. 
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. 9 204.5(g)(2). In 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (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. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, 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 has not established that it employed and paid the beneficiary the full proffered 
wage from the priority date in 1998 onwards until it paid partial wages in 2003 of $2 1,200 that is $18,091.10 
less than the proffered wage. 
The petitioner is obligated to demonstrate that it can pay the difference between the actual wages paid to the 
beneficiary and the proffered wage in 2003 and the full proffered wage in every other year. Counsel requests 
that CIS prorate the proffered wage for the portion of the year that occurred after the priority date. We will 
not, however, consider 12 months of income towards an ability to pay a lesser period of the proffered wage 
any more than we would consider 24 months of income towards paying the annual proffered wage. While 
CIS will prorate the proffered wage if the record contains evidence of net income or payment of the 
1 
 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. 3 103.2(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). 
beneficiary's wages specifically covering the portion of the year that occurred after the priority date (and only 
that period), such as monthly income statements or pay stubs, the petitioner has not submitted such evidence. 
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 contrary to counsel's 
assertions. 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. Suva, 632 F. Supp. 1049, 
1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcrafi Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); 
see also Chi-Feng Chang v. Thornburgh, 7 19 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. 111. 1982), afS'd, 703 F.2d 571 
(7th Cir. 1983). Reliance on the petitioner's gross sales and profits and wage expense is misplaced. Showing 
that the petitioner's gross sales and profits 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. 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. 
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 figures 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 petitioner's fiscal year runs from August 1 through July 3 1. Thus, its 1998 corporate federal tax return 
covers the period August I, 1998 through July 3 1, 1999. However, the priority date in this case is January 14, 
1998, which would be covered by the petitioner's 1997 corporate federal tax return, which is not contained in 
the record of proceeding. Therefore, the petitioner has not established its ability to pay the proffered wage in 
the year of the priority date, 1998. 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $39,291.20 per year from the priority date: 
In 1999, the Form 1 120 stated net income2 of $26,986. 
In 2000, the Form 1120 stated net income of $52,572. 
In 2001, the Form 1 120 stated net income of $3,296. 
In 2002, the Form 1 120 stated net income of $13,086. 
In 2003, the Form 1120 stated net income of $25,752. 
2 
 Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
Page 5 
Therefore, for the years 1999, 2001, 2002, the petitioner did not have sufficient net income to pay the 
proffered wage. The petitioner's net income in 2000 is greater than the proffered wage and demonstrates its 
ability to pay the proffered wage in that year. The petitioner's net income for 2003 is greater than the 
difference between the wages it actually paid to the beneficiary and the proffered wage in that year. 
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. We reject, however, counsel's idea that the petitioner's total 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. Rather, 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 liabilitie~.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6 and include cash-on-hand. 
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. 
The petitioner's net current assets during 1999 were -$22,719. 
The petitioner's net current assets during 2001 were 4284,778. 
The petitioner's net current assets during 2002 were -$185,589. 
Therefore, for the years 1999, 2001, and 2002, the petitioner did not have sufficient net current assets to pay 
the proffered wage. 
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 except for 2000 and 2003. 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
continuing ability to pay the proffered wage from the priority date. Counsel suggests adding together cash, 
assets and depreciation and net income to obtain the petitioner's working capital for each year under analysis. 
However, cash is a current asset and net current assets are the difference between a corporation's current assets 
and current liabilities. Net current assets may properly be considered in determining a petitioner's ability to 
pay the proffered wage. Because of the nature of net current assets, however, demonstrating the ability to pay 
the proffered wage with net current assets is truly an alternative to demonstrating the ability to pay the 
3~ccording to Barron's Dictionary ofAccounting Terms 1 17 (3'd 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. 
Page 6 
proffered wage with income and wages actually paid to the beneficiary. Net current assets are not cumulative 
with income, but must be considered separately. This is because income is viewed retrospectively and net 
current assets are viewed prospectively. That is, for example; a 2001 income greater than the amount of the 
proffered wage indicates that a petitioner could have paid the wages during 2001 out of its income. Net 
current assets at the end of 2001 which are greater than the proffered wage indicate that the petitioner 
anticipates receiving roughly one-twelfth of that amount each month, and that it anticipates being able to pay 
the proffered wage out of those receipts. Therefore, the amount of the petitioner's net income is not added to 
the amount of the petitioner's net current assets, which includes cash, in the determination of the petitioner's 
ability to pay the proffered wage, regardless of depreciation, which was discussed above. 
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 
the Form ETA 750 was accepted for processing by 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. 
5 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.