dismissed EB-3 Case: Construction

PUBLIC COPY 
U.S. Department of Elomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
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. 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 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and the 
Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the MO on 
a motion to reopen or reconsider. The motion will be granted. The previous decision of the MO will be 
affirmed, and the petition will be denied. 
The petitioner is a construction and remodeling company. It seeks to employ the beneficiary permanently in 
the United States as a tile setter. 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). 
As set forth in the director's September 15,2003 decision, the director determined that the petitioner had not 
established that the beneficiary is qualified to perform the duties of the proffered position with legal 
authorization to work in the United States. The director denied the petition accordingly. The MO affirmed 
the director's decision on February 1, 2005 and noted that the petitioner had not established its ability to pay 
the proffered wage as of the priority date. 
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. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1 153(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 petitioner must 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 Wingls Tea House, 16 I&N Dee. 158 (Act. Reg. Comrn. 1977). Here, the Form ETA 
750 was accepted on April 30,2001. 
On motion, counsel submits a brief. Relevant evidence in the record includes application filing instructions 
issued by the Washington State Employment Security Department regarding alien employment certification 
and an employment verification letter dated April 23,2001 iiom Cantibarro de Morelos. The record does not 
contain any other evidence relevant to the beneficiary's qualifications. 
On motion, counsel asserts that the petitioner has all the requisite experience in the job offered. Counsel 
further states: 
The term "must have legal authorization to work in USA" is a general language used by 
employers to emphasize that ONLY LEGAL WORKERS ARE RECRUITED and this is not 
a job requirement for the position. This term is a standard recruitment language required by 
WA State ESD and USDOL and this requirement does not apply to the alien. 
[Emphasis in the original.] 
A motion to reconsider must: (1) state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or Citizenship 
and Immigration Services (CIS) policy; and (2) establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 8 C.F.R. 4 103.5(a)(3). A motion to reopen must state the new 
facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 
Page 3 
8 C.F.R. 
 103.5(a)(2). The content of counsel's motion does not satisfl the requirements of a motion to 
reconsider under 8 C.F.R. $ 103.5(a)(3) because counsel fails to assert that the director and the AAO made an 
erroneous decision through misapplication of CIS law or policy or based upon evidence of record at the time 
of the director's decision. Counsel simply references precedent that he cited previously relating to the 
beneficiary's qualifications for the proffered job. However, the content of counsel's motion does satisfy the 
requirements of a motion to reopen under 8 C.F.R. $ 103.5(a)(2) because new facts have been asserted and new 
documentary evidence has been submitted relating to the petitioner's ability to pay the proffered wage. 
To determine whether a beneficiary is eligible for an employment based immigrant visa, CIS must examine 
whether the alien's credentials meet the requirements set forth in the labor certification. In evaluating the 
beneficiary's qualifications, CIS must look to the job offer portion of the labor certification to determine the 
required qualifications for the position. CIS may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec, 401, 406 
(Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irving, Inc. v. Landon, 
699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 
(1st Cir. 1981). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, set 
forth the minimum education, training, and experience that an applicant must have for the position of tile setter. 
In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School blank 
High School blank 
College blank 
College Degree Required blank 
Major Field of Study blank 
The applicant must also have two years of experience in the job offered, the duties of which are delineated at Item 
13 of the Form ETA 750A and since this is a public record, will not be recited in this decision. Item 15 of Form 
ETA 750A states that the applicant must have two years of experience in the job offered, and proof of legal 
authorization to work in the USA. 
The beneficiary set forth his credentials on Form ETA-750B and signed his name under a declaration that the 
contents of the form are true and correct under the penalty of perjury. On Part 15, eliciting information of the 
beneficiary's work experience, he represented that he worked for the petitioner as a tile setter fiom September 
2000 to the date he signed the Form ETA 750B. He does not provide any additional information concerning his 
employment background on that form. 
The regulation at 8 C.F.R. 5 204.5(1)(3) provides: 
(ii) Other doncmentation- 
(A) General. 
 Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters &om 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. 
Page 4 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
The petitioner has provided no new evidence on motion to support its assertion that the beneficiary is 
qualified to perform the duties of the proffered position with legal authorization to work in the United States. 
As noted by the AAO in our previous decision, the record contains no indication that the beneficiary had the right 
to work in the United States on the priority date as is required by the Form ETA 750. The application filing 
instructions issued by the Washington State Employment Security Department contained in the record do not 
require the petitioner to include the requirement of legal authorization to work in the United States on its ETA 
750. As noted by the AAO in our previous decision, the instructians do not even pertain to the completion of 
Form ETA 750. Also, as noted by the AAO in our previous decision, counsel's assertion that the requirement 
of legal authorization to work in the United States is required by the Washington State Employment Security 
Department and DOL is unsupported by the evidence and the law. Thus, the preponderance of the evidence 
does not demonstrate that the beneficiary is qualified to perform the duties of the proffered position with legal 
authorization to work in the United States. 
The AAO noted in our previous decision that the petitioner had not established its ability to pay the proffered 
wage as of the priority date. The regulation 8 C.F.R. $ 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employrnent- 
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. $ 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). 
The proffered wage as stated on the Form ETA 750 is $15.75 per hour ($32,760.00 per year based on a 40- 
hour work week). On motion, counsel submits a brief and the beneficiary's IRS Forms W-2, Wage and Tax 
Statements, issued by the petitioner for 2001,2002 and 2003. Other relevant evidence in the record includes 
the petitioner's IRS Forms 1120S, U.S. Income Tax Returns for an S Corporation, for 1999, 2000, 2001 and 
2002. 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 1985 and to currently employ ten workers. 
According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On motion, 
counsel asserts that based on the beneficiary's IRS Forms W-2 issued by the petitioner for 2001, 2002 and 
2003, the petitioner has the continuing ability to pay the proffered wage beginning on the priority date. 
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 
pet~tioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
SeeMatter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. $204.5(g)(2). 
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 beneficiary's IRS Forms W-2 for 2001,2002 and 2003 show compensation received from the 
petitioner, as shown in the table below. 
In 2001, the Form W-2 stated compensation of $30,987.45. 
In 2002, the Form W-2 stated compensation of $35,397.00. 
In 2003, the Form W-2 stated compensation of $34,980.36. 
Therefore, for the years 2002 and 2003, the petitioner has established that it employed and paid the 
beneficiary the full proffered wage of $32,760.00. For 2001, 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 that 
year. Since the proffered wage is $32,760.00 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 $1,772.55 in 
200 1. 
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 COT. 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. fiornburgh, 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), afd, 703 F.2d 571 (7th Cir. 1983). 
The record before the director closed on August 29,2003 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 2002 federal 
income tax return is the most recent return available. The petitioner's 2001 Form 1120s stated net income of 
-$53,230.00.' Therefore, for the year 2001, the petitioner did not have sufficient net income to pay the 
difference between the wages actually paid to the beneficiary and the proffered wage. 
1 
 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 11205. However, where an S 
corporation has income, credits, deductions or other adjustments &om 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, 
Page 6 
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 cunent 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 
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 
did not submit Schedule L to its 2001 federal income tax return. 
 Therefore, the petitioner's net current 
assets may not be analyzed against the difference between the wages actually paid to the beneficiary and the 
proffered wage in 2001. 
Thus, for 2001, 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. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. The burden of proof in these proceedings rests solely with the petitioner. Section 
291 of the Act, 8 U.S.C. 8 1361. The petitioner has not met that burden. 
ORDER: 
 The motion to reopen is granted and the decision of the AAO dated February 1,2005 is affirmed. 
The petition is denied. 
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, the pet~tioner's net income is found on line 23 of Schedule 
K of its tax return. 
2 
 According to Barron's Dictionary of Accounting Terms 11 7 (3d 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.