dismissed EB-3 Case: Car Wash Services

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 019 53273 Office: CALIFORNIA SERVICE CENTER Date: RAY 1 6 2006 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 5 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. 
 1153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
~o6ert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 019 53273 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a cash wash services corporation. It seeks to employ the beneficiary permanently in the 
United States as a cash wash supervisor. 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. The director denied the 
petition accordingly. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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.' 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The regulation at 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 regulation at 8 CFR 5 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled 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. 
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 petitioner must 
also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750 
. The petitioner was originally submitted for a skilled worker or professional classification, but since the 
labor certification stated that the job required only one year of experience, and two years are required for the 
skilled worker classification, the director pointed out the inconsistency. The petitioner requested that the 
petition classification be amended to "other workers." 
WAC 04 019 53273 
Page 3 
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. Comrn. 1977). 
Here, the Form ETA 750 was accepted on November 3, 1997. The proffered wage as stated on the Form ETA 
750 is $30.35 per hour ($63,128.00 per year). The Form ETA 750 states that the position requires one-year 
experience. 
On appeal, the petitioner submits a legal brief and additional evidence. 
With the petition, the petitioner submitted copies of the following documents: a copy of 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 1998, 1999, 2000, and 2001; Forms 941 and DE-6; a W-2 
Wage and Tax Statement for 1995 from a prior employer; and, copies of documentation concerning the 
beneficiary's qualifications as well as other documentation. 
The director requested on June 4, 2004, that the petitioner reconsider the employment classification and a 
duplicate of the certified Alien Employment Application. 
On June 23, 2004, the petitioner responded to the request for evidence by requesting that CIS request from the 
U.S. Department of Labor a duplicate of the certified Alien Employment Application, and, the petitioner 
reconsidered the employment classification, from slulled/worker to other workers. 
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 requested on August 9,2004 pertinent evidence of the petitioner's ability to pay 
the proffered wage beginning on the priority date. The director requested copies of California Employment 
Development Department (EDD) Form DE-6, Quarterly Wage Reports for all employees for the last four quarters 
that were accepted by the State of California. The forms should include the names, social security numbers and 
number of weeks worked for all employees, and U.S. federal tax returns. 
In response to the request for evidence of the petitioner's ability to pay the proffered wage beginning on the 
priority date, petitioner submitted the petitioner's U.S. Internal Revenue Service (IRS) Form 1120 tax returns 
and DE-6 Form statements. 
The director denied the petition on December 8, 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. 
On appeal, the petitioner asserts that the director is "mechanically" comparing the net income of the petitioner 
to the proffered wage, and, that Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967) requires that CIS examine 
the totality of the petitioner's financial circumstances. Further, the petitioner contends that because the 
petitioner utilizes the accrual accounting method and not the cash basis. Therefore, the petitioner asserts that 
the accounts receivable are not "accurately" stated. The petitioner provides a business appraisal that reflects a 
valuation of these total assets that evidences the ability to pay the proffered wage. The petitioner asserts that 
since the beneficiary has been employed since "year 2004" that this evidences the ability to pay the proffered 
wage, and that the denial of the petition will result in a hardship to the petitioner. 
Also, the petitioner states that the U.S. Department of Labor has determined that there are no U.S. workers to 
"fill the proffered position." In determining the respective jurisdictions of the Department of Labor and the 
WAC 04 019 53273 
Page 4 
CIS, one may turn to the entire body of recent court proceedings interpreting the interplay of the agencies and 
strictly confining the final determination made by the Department of Labor. See Stewart Infra-Red Commissary, 
Etc. v. Coomey, 661 F.2d 1 (1st Cir. 1981); Denver Tofu Company v. District Director, Etc., 525 F. Supp. 254 
(D. Colo. 1981); and, Joseph v. Landon, 679 F.2d 1 13 (7th Cir. 1982). 
These cases recognize the labor certification process and the authority of the Department of Labor in this 
process stem from section 214(a)(14) of the Act, 8 U.S.C. 1182(a)(14). In labor certification proceedings, the 
Secretary of Labor's determination is limited to analysis of the relevant job market conditions and the effect, 
which the grant of a visa would have on the employment situation. The CIS, through the statutorily imposed 
requirement found in section 204 of the Act, 8 U.S.C. 1154, must investigate the facts in each case and, after 
consultation with the Department of Labor, determine if the material facts in the petition including the 
certification are true. 
Although the advisory opinions of other Government agencies are given considerable weight, the Service has 
authority to make the final decision about a beneficiary's eligibility for occupational preference classification. 
The Department of Labor is responsible for decisions about the availability of United States workers and the 
effect of a prospective employee's employment on wages and worlung conditions. The Department of Labor's 
decisions concerning these factors, however, do not limit the CIS'S authority regarding eligibility for 
occupational preference classification. Therefore, the issuance of a labor certification does not necessarily mean 
a visa petition will be approved. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. 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. The petitioner asserts that since the beneficiary has been 
employed since "year 2004" that this evidences the ability to pay the proffered wage. Evidence was 
submitted to show that the petitioner employed the beneficiary in 2004. The petitioner paid the beneficiary an 
hourly wage of $30.35 per hour from October 4,2004 to December 3 1,2005. Total wages for that period was 
$15,782.00. There is no evidence submitted that the petitioner paid the proffered wage of $63,128.00 per 
year. 
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.Y. 1985); Ubeda v. Palmer, 539 F.Supp. 647 (N.D. Ill. 1982), affd, 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 $63,128.00 per year from the priority date of November 3, 1997: 
WAC 04 019 53273 
Page 5 
In 1998, the Form 1120 stated taxable income2 of $46,887.00. 
In 1999, the Form 1120 stated taxable income of $23,949.00. 
In 2000, the Form 1120 stated taxable income of $30,046.00. 
In 2001, the Form 1 120 stated taxable income of $16,071.00. 
In 2002, the Form 1120 stated taxable income of $15,825.00. 
From 1998 to 2002, the petitioner had insufficient taxable income to pay the proffered wage of $63,128.00 
per 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. No 2004 U.S. federal tax return was submitted, therefore this calculation 
cannot be made. 
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 1998 through 2002 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 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. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120 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 1120 U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each of 
those returns indicates the following: 
In 1998, petitioner's Form 1120 return stated current assets of $9,000.00 and $322,245.00 in current 
liabilities. Therefore, the petitioner had <$313,245.00>~ in net current assets. Since the proffered 
wage is $63,128.00 per year, this sum is less than the proffered wage. 
In 1999, petitioner's Form 1120 return stated current assets of $9,000.00 and $252,821.00 in current 
liabilities. Therefore, the petitioner had <$243,821.00> in net current assets. Since the proffered 
wage is $63,128.00 per year, this sum is less than the proffered wage. 
- 
The petitioner's tax year begins on November 1, 1998 and ends on October 3 1. 
3 
 According to Barron's Dictionary of Accounting Terms 117 (3'* 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
4 
 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. 
WAC 04 0 19 53273 
Page 6 
In 2000, petitioner's Form 1120 return stated current assets of $7,250.00 and $253,630.00 in current 
liabilities. Therefore, the petitioner had <$246,380.00> in net current assets. Since the proffered 
wage is $63,128.00 per year, this sum is less than the proffered wage. 
In 2001, petitioner's Form 1120 return stated current assets of $7,250.00 and $320,742.00 in current 
liabilities. Therefore, the petitioner had <$313,492.00> in net current assets. Since the proffered 
wage is $63,128.00 per year, this sum is less than the proffered wage. 
In 2002, petitioner's Form 1120 return stated current assets of $22,287.00 and $72,603.00 in current 
liabilities. Therefore, the petitioner had <$50,3 16.00> in net current assets. Since the proffered wage 
is $63,128.00 per year, this sum is less than the proffered wage. 
Therefore, for the period 1998 through 2002 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. 
The petitioner asserts in his brief accompanying the appeal that there are other ways to determine the 
petitioner's ability to pay the proffered wage from the priority date. 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. 
The petitioner contends that because the petitioner utilizes the accrual accounting method and not the cash 
basis. Therefore, the petitioner asserts that the accounts receivable are not "accurately" stated. The 
petitioner's tax returns were prepared pursuant to the accrual method, in which revenue is recognized when it 
is earned, and expenses are recognized when they are incurred. This office would, in the alternative, have 
accepted tax returns prepared pursuant to cash convention, if those were the tax returns the petitioner had 
actually submitted to IRS. 
This office is not, however, persuaded by an analysis in which the petitioner, or anyone on its behalf, seeks to 
rely on tax returns or financial statements prepared pursuant to one method, but then seeks to shift revenue or 
expenses from one year to another as convenient to the petitioner's present purpose. If revenues are not 
recognized in a given year pursuant to the accrual method then the petitioner, whose taxes are prepared 
pursuant to accrual, may not use those revenues as evidence of its ability to pay the proffered wage during 
that year. Similarly, if expenses are recognized in a given year, the petitioner may not shift those expenses to 
some other year in an effort to show its ability to pay the proffered wage pursuant to some hybrid of accrual 
and cash accounting. The amounts shown on the petitioner's tax returns shall be considered as they were 
submitted to IRS, not pursuant to the accountant's adjustments. 
The petitioner provided a business appraisal that reflects a valuation of the total assets, realty, building and 
equipment that petitioner contends evidences the ability to pay the proffered wage. We reject the petitioner's 
assertion 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. 
8 C.F.R. tj 204.5(g)(2). 
WAC 04 019 53273 
Page 7 
The petitioner asserts that since the beneficiary has been employed since October 2004, and that the denial of 
the petition will result in a hardship to the petitioner. The assertions of the petitioner do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980). No detail or documentation has been provided to explain how the beneficiary's employment as a 
car wash supervisor will significantly increase petitioner's profits. This hypothesis cannot be concluded to 
outweigh the evidence presented in the corporate tax returns. 
In the totality of all the evidence submitted in this case, there is not evidence to demonstrate that the 
petitioner's business was in a profitable period in 1998, 1999, 2000, 2001 and 2002 that would enable the 
petitioner to pay the proffered wage of $63,128.00 per year. For the years 1998, 1999, 2000, 2001 and 2002, 
the taxable income for the petitioner were $46,887.00, $23,949.00, $30,046.00, $16,071.00, and, $15,825.00. 
For the years 1998, 1999,2000, 2001 and 2002, the net current asset value for those years is negative in each 
year, <$3 13,245.00> <$243,82 1.00>, <$246,380.00>, <$3 13,492.00> and, <$50,3 16.00>. Since the 
proffered wage is $63,128.00 per year, neither taxable income nor net current assets are more than the 
proffered wage. 
Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), relates to petitions filed during uncharacteristically 
unprofitable or difficult years but only in a framework of profitable or successful years. The petitioning entity 
in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about 
$100,000. During the year in which the petition was filed in that case, the petitioner changed business 
locations and paid rent on both the old and new locations for five months. There were large moving costs and 
also a period of time when the petitioner was unable to do regular business. The Regional Commissioner 
determined that the petitioner's prospects for a resumption of successful business operations were well 
established. The petitioner was a fashion designer whose work had been featured in Time and Look 
magazines. 
 Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's 
clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in California. 
The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound 
business reputation and outstanding reputation as a couturiere. 
Unusual and unique circumstances have not been shown to exist in this case to parallel those in Sonegawa, to 
establish that the period examined was an uncharacteristically unprofitable period for the petitioner. By the 
evidence presented, the petitioner has not proven its ability to pay the proffered wage. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The petitioner's contentions cannot be concluded to outweigh the evidence presented in the five 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. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.