dismissed EB-3 Case: Construction

rdentilying data deleted to 
prevent clearly unwarranted 
invaim d pemnal p- 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
P 
k$ t2 
Office: VERMONT SERVICE CENTER 
 Date: MAY 0 2 2006 
PETITION: 
 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. 5 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 
Page 2 
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 residential construction firm. It seeks to employ the beneficiary permanently in the United 
States as a drywall carpenter. 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. 
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 or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
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 either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profitlloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which 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. 3 204.5(d). The priority date in the instant 
petition is April 30, 2001. The proffered wage as stated on the Form ETA 750 is $17.50 per hour, which 
amounts to $36,400.00 annually. On the Form ETA 750B, signed by the beneficiary on April 14, 2001, the 
beneficiary claimed to have worked for the petitioner beginning in August 1999 and continuing through the 
date of the ETA 750B. The ETA 750 was certified by the Department of Labor on June 24,2003. 
The 1-140 petition was submitted on April 28, 2004. On the petition, the petitioner claimed to have been 
established in September 1993, to currently have 30 employees, and to have a gross annual income of 
$13 12,559.00. With the petition, the petitioner submitted supporting evidence. 
In a decision dated October 8, 2004, the director determined that the evidence did not establish that the petitioner 
had the ability to pay the proffered wage as of the priority date and denied the petition. 
On appeal, counsel submits a brief and additional evidence. Counsel states that the petitioner's guaranteed 
payments to partners and total assets should be considered in determining the petitioner's ability to pay the 
proffered wage. Counsel submits the beneficiary's Form 1099-MISC Miscellaneous Income for 2002. 
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). 
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. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, 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. 
612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this 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 April 14,2001, the beneficiary claimed to have 
worked for the petitioner beginning in August 1999 and continuing through the date of the ETA 750B. 
The record contains a copy of the beneficiary's Form 1099-MISC Miscellaneous Income for 2002, which shows 
compensation received from the petitioner, as shown in the table below. 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2002 
The record also contains a list titled "D & J Drywall 1099 Summary January through December 2001." 
According to the summary list, the beneficiary received $24,135.00 as nonemployee compensation from the 
petitioner. Counsel refers to this amount when stating that the petitioner can demonstrate its ability to pay the 
difference between the actual wages paid and the proffered wage in 2001.' 
Counsel also states on appeal that "D & I Drywall in 2001 paid income to. as noted by 
USCIS, 1099 misc. for 2001 of $26,945.00." Counsel then states that "[tlhe proffered salary in this case is $36,400.00. 
The difference between the actual salary and the [proffered] wage is $12,265.60." The director's decision states that for 
2001, "[the petitioner] submitted a 1099 Summary listing that [it] paid the alien $24,135.00, falling short by $12,265.00 
of the proffered wage." The director did not mention any Form 1099-MISC and did not state that the beneficiary was 
paid $26,945.00. The record does not contain a copy of the beneficiary's Form 1099-MISC for 2001. In addition, the 
difference between $36,400.00 and $26,945.00 is $9,455.00, not $12,265.00. 
Page 4 
The AAO would accept Form W-2's, Form 1099's, pay stubs, or cashed checks as competent supporting 
evidence. The petitioner's 1099 summary list, however, is not persuasive evidence. Nothing in the record 
indicates that the summary list is issued by the Internal Revenue Service. Similar to unaudited financial 
statements, it appears to have been compiled by the petitioner. There is also no evidence that the summary 
list has been reviewed or audited. Thus, it is the representations of management, and the unsupported 
representations of management are not reliable evidence and are insufficient to demonstrate the amount of 
wages the petitioner paid the beneficiary in 2001. The accuracy of the summary list is also called into 
question because according to the summary list, the petitioner paid $954,067.58 in wages in 2001. According 
to the petitioner's Form 1065 U.S. Return of Partnership Income for 2001, the petitioner paid $958,177.00 in 
wages in 2001. The two figures do not match up, and no explanation for the inconsistency exists in the 
record. Matter of Ho, 19 I&N Dec. 582,591-592 (BIA 1988) states: 
It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective 
evidence pointing to where the truth, in fact, lies, will not suffice. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 COT. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcrafi Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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 (7" Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a domestic general partnership. The record contains copies of the 
petitioner's Form 1065 U.S. Returns of Partnership Income for 2001 and 2002. The record before the director 
closed on April 28, 2004 with the receipt by the director of the 1-140 petition and supporting documents. As of 
that date the petitioner's federal tax return for 2004 was not yet due. However, the petitioner's federal tax return 
for 2003 would have been due before April 28, 2004. Therefore the petitioner's tax return for 2003 is the most 
recent return available. The petitioner's 1065 U.S. Return of Partnership Income for 2003 does not appear in the 
record. 
Where a partnership's income is exclusively from a trade or business, CIS considers net income to be the figure 
for ordinary income, shown on line 22 of page one of the petitioner's Form 1065. Where a partnership has 
income from sources other than from a trade or business, that income is reported on the Schedule K. Where the 
Schedule K has relevant entries for either additional income or additional deductions, net income is found on the 
Schedule K, Form 1065, page 4, Analysis of Net Income (Loss), line 1. 
In the instant petition, the petitioner's tax returns show amounts for income on the Schedule K as shown in the 
table below. 
Page 5 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
200 1 $83,885.00 $36,400.00* $47,485.00 
2002 $0.00 $15,765.00** -$15,765.00 
2003 No Information $36,400.00* No Information 
* The full proffered wage, since the record contains no persuasive evidence of 
any wage payments made by the petitioner to the beneficiary in 2001 and 2003. 
** Crediting the petitioner with the compensation actually paid to the 
beneficiary in 2002. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2002 and 
2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a partnership taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A partnership's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 15 through 17. If a partnership's 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 net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield the amounts for net 
current assets as shown in the following table. 
Tax Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
200 1 $0.00 $36,400.00* 
2002 $0.00 $15,765.00** 
2003 No Information $36,400.00* 
* The full proffered wage, since the record contains no persuasive evidence of any 
wage payments made by the petitioner to the beneficiary in 2001 and 2003. 
** Crediting the petitioner with the compensation actually paid to the beneficiary in 
2002. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2002 and 
2003. 
Page 6 
Counsel states that the petitioner's guaranteed payments to partners in the amount of $83,885.00 should be 
considered in determining the petitioner's ability to pay the proffered wage in 2001. As stated above, where a 
partnership has income from sources other than from a trade or business, that income is reported on the Schedule 
K. Where the Schedule K has relevant entries for either additional income or additional deductions, net income is 
found on the Schedule K, Form 1065, page 4, Analysis of Net Income (Loss), line 1. The petitioner's net income 
on the Schedule K is $83,885.00 because "guaranteed payments to partners" is one of the items listed as income 
on the Schedule K. Thus, CIS does look at the petitioner's guaranteed payments to partners. 
Counsel states that the petitioner had sufficient funds to pay the difference between the actual income paid and 
the prevailing wage in 2002 because "[the petitioner] had $43,558.00 in assets at the end of the year." According 
to the petitioner's 1065 U.S. Return of Partnership Income for 2002, $43,558.00 is the petitioner's total assets. 
CIS rejects the 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. Thus, instead of looking at the 
petitioner's total assets, CIS will, as shown above, consider net current assets as an alternative method of 
demonstrating the ability to pay the proffered wage. 
Counsel also states that "should [CIS] desire financial evidence of ability to pay the [proffered] wage since the 
date of filing of the instant petition, we will be more than happy to demonstrate that [the petitioner] [clould in 
2003 and it can continue to pay the proffered salary today." The petitioner has to show the ability to pay the 
proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence, 
and the record before the director closed on April 28, 2004 with the receipt by the director of the 1-140 petition 
and supporting documents. Thus, the petitioner should have included evidence demonstrating the petitioner's 
ability to pay the proffered wage in 2003 and failed to do so in its initial submission of evidence and on appeal. 
After a review of the evidence in the record, it is concluded that the petitioner has not established its ability to 
pay the salary offered as of the priority date of the petition and continuing until the beneficiary obtains lawful 
permanent residence. The decision of the director to deny the petition was correct, based on the evidence in 
the record before the director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
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.