dismissed EB-3 Case: Baking

PUb~lc COPY 
U.S. Department of Elomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
C~L 
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 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. 
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 United States Department of Labor (DOL). 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 February 9, 2005 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. 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. 3 204.5(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 DOL. See 8 C.F.R. 3 204.5(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 DOL and submitted with the instant 
petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $19.89 per hour ($41,371.20 per year based on a 40 hour work week). The Form ETA 750 states that 
the position requires four years of experience in the job offered. 
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 appeal.' 
 On appeal, 
counsel submits a letter dated February 28, 2005 from the petitioner and previously submitted evidence. 
Other relevant evidence in the record includes the petitioner's IRS Forms 1120S, U.S. Income Tax Returns 
for an S Corporation, for 2001, 2002 and 2003, and the petitioner's IRS Forms W-2, Wage and Tax 
Statements, issued to the beneficiary and other employees for 2001, 2002 and 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 an S corporation. On the 
petition, the petitioner claimed to have been established in 1996. According to the tax returns in the record, 
the petitioner's fiscal year is based on a calendar year. On the Form ETA 750B, signed by the beneficiary on 
February 13,2001, the beneficiary did not claim to have worked for the petitioner.2 
On appeal, counsel asserts that the beneficiary will replace other workers that are no longer employed by the 
petitioner. Counsel also states that the petitioner is currently paying the beneficiary the proffered wage.3 The 
petitioner further asserts that its Schedule L cash should be considered in its ability to pay the proffered wage 
in 2001 and 2002, and that the wages the petitioner paid to other employees should be considered in its ability 
to pay the proffered wage in 2001 and 2003. 
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. 8 204.5(g)(2). 
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, on the Form ETA 750B, signed by the 
beneficiary on February 13, 2001, the beneficiary did not claim to have worked for the petitioner. However, 
the beneficiary's Form W-2s for 2001, 2002 and 2003 show compensation received from the petitioner, as 
shown in the table below. 
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. 
 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). 
2 
 This office notes that the petitioner filed another Form 1-140 on behalf of the beneficiary on April 7, 2006. 
The petition is currently pending with CIS at the Nebraska Service Center. 
3 
On Form I-290B, counsel asserts that the petitioner is paying the beneficiary the proffered wage of $17.43 
per hour. The petitioner also states in its February 28, 2005 supporting letter that the beneficiary has been 
working with the petitioner since 2000 and that the beneficiary earns a salary of $17.43 per hour for a 40 hour 
work week. At a salary of $17.43 per hour, the annual wage is $36,254.40 based on a 40 hour work week. 
The beneficiary's IRS Forms W-2 clearly establish that the petitioner did not pay the beneficiary $36,254.40 
per year in 2001, 2002 or 2003. Further, the proffered wage is $19.89 per hour, or $41,371.20 per year based 
on a 40 hour work week. Therefore, the petitioner has not established that it employed and paid the 
beneficiary the full proffered wage in 2001,2002 or 2003. 
Page 4 
In 2001, the Form W-2 stated compensation of $9,750.00. 
In 2002, the Form W-2 stated compensation of $12,350.00. 
In 2003, the Form W-2 stated compensation of $14,300.00. 
Therefore, for the years 2001, 2002 and 2003, the petitioner has not established that it employed and paid the 
beneficiary the full proffered wage, but it did establish that it paid partial wages each year. Since the 
proffered wage is $41,371.20 per year, the petitioner must establish that it can pay the difference between the 
wages actually paid to the beneficiary and the proffered wage, which is $31,621.20, $29,021.20 and 
$27,071.20 in 2001,2002 and 2003, respectively. 
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. 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.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's wage expense is misplaced. Showing that the petitioner paid wages in excess of 
the proffered wage is insufficient. 
The record before the director closed on January 5, 2005 with the receipt by the director of the petitioner's 
submissions in response to the director's request for evidence. As of that date, the petitioner's 2004 federal 
income tax return was not yet due. Therefore, the petitioner's income tax return for 2003 is the most recent 
return available. The petitioner's tax returns demonstrate its net income for 2001, 2002 and 2003, as shown 
in the table below. 
In 2001, the Form 1120s stated net income4 of $20,561.00. 
In 2002, the Form 1 120s stated net income of $20,3 10.00. 
In 2003, the Form 1120s stated net income of $15,110.00. 
Therefore, for the years 2001, 2002 and 2003, the petitioner did not have sufficient net income to pay the 
difference between the wages actually paid to the beneficiary and the proffered wage. 
As an alternate 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 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 
4 
 Where an S corporation's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on line 21 of page one of the petitioner's Form 1120s. However, where an S 
corporation has income, credits, deductions or other adjustments from sources other than a trade or business, they 
are reported on Schedule K. If the Schedule K has relevant entries for additional income or additional credits, 
deductions or other adjustments, net income is found on line 23 of Schedule K. Because the petitioner had 
additional income shown on its Schedule K for 2001 and 2002 and additional income and deductions shown on 
its Schedule K for 2003, the petitioner's net income is found on line 23 of Schedule K of its tax returns. 
5 
 According to Barron S Dictionary of Accounting Terms 11 7 (3rd ed. 2000), "current assets" consist of items 
Page 5 
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 
tax returns demonstrate its end-of-year net current assets for 2001, 2002 and 2003, as shown in the table 
below. 
In 2001, the Form 1120s stated net current assets of -$2,320.00. 
In 2002, the Form 1 120s stated net current assets of $9,419.00. 
In 2003, the Form 1 120s stated net current assets of $1,644.00. 
Therefore, for the years 2001, 2002 and 2003, the petitioner did not have sufficient net current assets to pay 
the difference between the wages actually paid to the beneficiary and the proffered wage. 
Thus, from the date the Form ETA 750 was accepted for processing by the DOL, 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. 
Counsel asserts in her 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 advised that the beneficiary will 
replace former workers. The record does not, however, name these workers, state their hourly wages, verify their 
full-time employment, or provide evidence that the petitioner has replaced or will replace them with the 
benefi~iar~.~ In general, wages already paid to others are not available to prove the ability to pay the wage 
proffered to the beneficiary at the priority date of the petition and continuing to the present. Moreover, the 
petitioner has not documented the positions, duties, and termination of the workers who performed the duties of 
the proffered position. If those employees performed other hnds of work, then the beneficiary could not have 
replaced the former employees. Further, this office notes that the petitioner could have replaced the employees at 
any time since the beneficiary was worlung for the petitioner during the entire period. 
Further, the petitioner urges that its Schedule L Cash should be added to its net profits in calculating the funds 
available to the petitioner to pay the proffered wage. That calculation would be inappropriate. Some portion 
of the petitioner's revenue during a given year is paid in expenses and the balance is the petitioner's net 
income. Of its net income, some is retained as cash. Adding the petitioner's Schedule L Cash to its net 
income would likely be duplicative, at least in part. The petitioner's Schedule L Cash is included in the 
calculation of the petitioner's net current assets, which are considered separately from its net income. 
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 DOL. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
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. 
6 
 The IRS Forms W-2 submitted for the petitioner's other employees do not establish that any of the former 
employees were paid an annual salary equal to or exceeding the proffered wage. 
Page 6 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.