dismissed EB-3 Case: Computer Hardware

~dentifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
HJBLm copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: LIN-03-208-50144 Office: NEBRASKA SERVICE CENTER Date: HAR 2 4 2006 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LIN-03-208-50144 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner markets computer hardware components and peripheral products. 
 It seeks to employ the 
beneficiary permanently in the United States as a market research analyst. As required by statute, a Form ETA 
750, Application for Alien Employment Certification approved by the Department of Labor, 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 a brief and additional evidence. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(ii), provides 
for the granting of preference classification to qualified immigrants who hold baccalaureate degrees and are 
members of the professions. 
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 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 C.F.R. 5 204.5(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 $35,547.20 per year. On the Form ETA 750B, 
signed by the beneficiary, the beneficiary did not claim to have worked for the petitioner. 
On the petition, the petitioner claimed to have been established in 1996, to have a gross annual income of 
$700,000, and to currently employ four workers. The record reflects that its fiscal year runs from July 1 through 
June 30 of each year. In support of the petition, the petitioner submitted its corporate tax returns for 2000, which 
covers July 1, 2000 through June 30, 2001, its priority date year, its 2001 tax return, and bank statements. 
Because the director deemed the evidence submitted insufficient to demonstrate the petitioner's continuing ability 
to pay the proffered wage beginning on the priority date, on February 6, 2004, the director requested additional 
evidence pertinent to that ability. The director requested audited profitlloss statements, bank account records, 
andlor personnel records. 
In response, the petitioner submitted its 2002 Form 1120-A short-form corporate tax return, additional bank 
statements, and copies of pay stubs issued by the petitioner to the beneficiary from December 2003 through 
March 2004. 
LIN-03-208-50144 
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The director determined that the evidence submitted did not establish that the petitioner had the continuing ability 
to pay the proffered wage beginning on the priority date, and, on April 23, 2004, denied the petition. 
On appeal, counsel asserts that the petitioner has demonstrated its ability to pay the proffered wage since the 
beneficiary is being paid the proffered wage since December 2003 and it has sufficient net assets and cash in its 
bank account. Counsel cites Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967) and asserts that the beneficiary 
has already increased revenues for the petitioner's business. The petitioner submits a letter stating that the 
beneficiary generated revenues of over $40,000 from one customer, Direct Link International (Direct Link and 
has generated interest from other potential customers. The petitioner also submits a letter from 
2002 fiscal year, but that its sales are rising again. 
CPA w 
 * 
certified public accountant, who states that the petitioner, like any business, had a sales ec me in its 
eferences the petitioner's net assets, bank 
balances, sales generation, and that it has not taken any loans as evl ence that it can pay the proffered wage. CPA 
also states that the petitioner's 2003 tax return is not available yet but that she ran a balance sheet in her 
computer that showed that its net assets and income had increased. An unaudited balance sheet for March 1,2004 
accompanies her letter. 
On appeal, the petitioner also submits letters from and Direct Link. 
Williamette's letter states that the petitioner's products and the beneficiary's assistance may help them achieve 
their sales goals in China, and if so, they would pay the petitioner $100,000 annually. 
 Direct Link's letter 
recommends the petitioner's busi 
 er resubmits its corporate tax returns for 2000 through 2002; 
copies of checks made payable to 
 the petitioner's trade name, from Direct Link in 2004; a W-2 
form issued by the petitioner to 
 reflecting wages paid in the amount of $2,960; copies of 
pay stubs issued by the petitioner to the beneficiary in 2004 reflecting wages paid from January through May of 
that year totaling $15,046.61 at a pay rate of $2,960 every month; and additional bank statements. 
The tax returns reflect the following information for the following years: 
Net income1 $5,048 -$5,634 -$5,554 
Current Assets $59,8 14 $58,427 $37,419 
Current Liabilities $42,792 $46,9 13 $3 1,469 
Net current assets $17,022 $11,514 $5,950 
At the outset, the unaudited balance sheet for March 2004 submitted with CPA 
 letter is not persuasive 
evidence. According to the plain language of 8 C.F.R. 5 204.5(g)(2), where the petitioner relies on financial 
statements as evidence of a petitioner's financial condition and ability to pay the proffered wage, those statements 
must be audited. Unaudited statements are the unsupported representations of management. The unsupported 
representations of management are not persuasive evidence of a petitioner's ability to pay the proffered wage. 
Additionally, counsel's reliance on the balances in the petitioner's bank accounts is misplaced. 
 First, bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. 5 204.5(g)(2), required to illustrate a 
petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases," 
the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. 5 204.5(g)(2) is 
inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show the 
1 
 The petitioner's net income is its taxable income before net operating loss deduction and special deductions as 
reported on line 28 for 2000 and 2001 and on line 24 for 2002. 
LIN-03-208-50144 
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amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third, no 
evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow reflect 
additional available funds that were not reflected on its tax return, such as the cash specified on Schedule L that will 
be considered below in determining the petitioner's net current assets. 
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 petitioner did not establish that it employed and paid the 
beneficiary the full proffered wage in the petitioner's 2000, 2001, or 2002 fiscal years. The petitioner 
demonstrated that it paid the beneficiary $18,006.61 in its 2003 fiscal year, including its December 2003 wages 
and January through May 2004. 
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), afS'd, 703 F.2d 571 (7th Cir. 1983). 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. 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. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. 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 amoun 
wage or more, CIS will review the petitioner's assets. We reject, however, counsel's and CPA 
 rgument 
that the petitioner's total assets should have been considered in the determination of the a 
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 liabilities.' 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities 
2 
 According to Barran's Dictionaly of Accounting Terms 117 (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 
LIN-03-208-50 144 
Page 5 
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 out of those net current assets. 
The petitioner has not demonstrated that it paid the full proffered wage to the beneficiary in its 2000, 2001, or 
2002 fiscal years. In all of those years, its net income and net current assets are either negative or lower than the 
proffered wage. For its 2003 fiscal year, it was paying the beneficiary at a pay rate equivalent to $34,872, which 
is close to but a little lower than the proffered wage of $35,547.20. The petitioner has not demonstrated that any 
other funds were available to pay the proffered wage. The petitioner has not, therefore, shown the ability to pay 
the proffered wage during 2000,2001,2002, or 2003. 
Counsel cites to Matter of Sonegawa, 12 I&N Dec. at 612 for support of the petitioner's ability to pay. Sonegawa 
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. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that 2000, 2001, or 2002 were uncharacteristically unprofitable years for the petitioner. 
Counsel argues that consideration of the beneficiary's potential to increase the petitioner's revenues is 
appropriate, and establishes with even greater certainty that the petitioner has more than adequate ability to pay 
the proffered wage. The petitioner has not, however, provided any standard or criterion for the evaluation of such 
earnings. For example, the petitioner has not demonstrated that the beneficiary will replace less productive 
workers, or has a reputation that would increase the number of customers. The record of proceeding does not 
contain evidence that the petitioner's sales increased in its 2003 fiscal year since only an unaudited balance sheet 
was submitted. Even if it had, there is no evidence that its sales increase is a result of hiring the beneficiary. The 
letter from Williamette does not state that it will pay the petitioner $100,000 but that it might if the petitioner and 
the beneficiary successfully achieve their goals for them3. Direct Link provides a generic recommendation and 
discusses its historical relationship with the petitioner with only one brief mention of the beneficiary. There is no 
evidence that Direct Link hired the petitioner because of the beneficiary, and even if it did so, the only evidence of 
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. 
3 
 This basis for establishing ability to pay is also too speculative. A petitioner must establish the elements for the 
approval of the petition at the time of filing. A petition may not be approved if eligibility is not demonstrated at 
the priority date, with the expectation of eligibility at a subsequent time. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 197 1). 
LIN-03-208-50 144 
Page 6 
sales received by the petitioner from Direct Link occurred in 2004, which does not benefit the analysis of the 
petitioner's fiscal years in 2000, 2001, or 2002~. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during its 2000, 2001, or 2002 
fiscal years. Therefore, the petitioner has not established that it 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. 3 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
--- 
4 
 See reference to Katigbak, supra, note 3. Also the regulation at 8 C.F.R. 
 204.5(g)(2) requires demonstrating 
ability to pay beginning on the priority date.