dismissed EB-3 Case: Construction

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pmmt clearly unw-d, 
invasion of p"d prim 
U.S. Department of TIorneland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
f" 
11 I 3:. 
ONT SERVICE CENTER Date: OCT 2 0 2006 
EAC 04 168 51819 
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. $ 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, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Construction company. It seeks to employ the beneficiary permanently in the United 
States as a Roofer. 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 (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. Therefore, the director denied the petition. 
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 16, 2005 denial, the single issue in this case is whether 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 slulled 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 at 8 C.F.R. 9 204.5(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 is accepted for processing by any office within the employment 
system of the DOL. See 8 CFR 5 204.5(d). The petitioner must also demonstrate that, on the priority date, the 
beneficiary had the qualifications stated on its Form ETA 750 as certified by the DOL and submitted with the 
petition. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 19, 2001. The proffered wage as stated on the Form ETA 
750 is $23.89 per hour, 40 hours per week or $49,691.20 annually. The Form ETA 750 states that the 
position requires two years of experience as a Roofer. 
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 
1 
pertinent evidence in the record, including new evidence properly submitted on appeal. Relevant evidence in 
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 this case 
Page 3 
the record includes: the petitioner's Form 1120S, U.S. Income Tax Return for an S Corporation, for the years 
2001, 2002 and 2003. The record does not contain any other evidence relevant to the petitioner's ability to 
pay the wage. 
The record shows that the petitioner is structured as an S corporation. On the petition, the petitioner claimed 
that it was established in 1950 and that it currently employs twenty workers. According to the tax returns in 
the record, the petitioner's fiscal year coincides with the calendar year. On the Form ETA 750B, which was 
signed by the beneficiary on April 5, 2001, the beneficiary claimed to have worked for the petitioner from 
January 1999 through the date that he signed the form. 
On appeal, counsel asserts that the director erred in denying the petition. Counsel indicates that, according to 
Generally Accepted Accounting Principles or GAAP, depreciation and amortization amounts do not represent 
the payment of an actual expense. Consequently, CIS should view these as funds available to pay the 
proffered wage and should find that the petitioner has demonstrated the ability to pay. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of the Form 
ETA 750 establishes a priority date for any immigrant petition later based on that Form 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. fj 204.5(g)(2). In evaluating whether a job offer is 
realistic, Citizenship and Immigration Services (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. Cornm. 1967). 
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 this 
case, the petitioner has not established that it employed and paid the beneficiary the full proffered wage 
during any relevant timeframe from the priority date through the present. Though the record does indicate 
that the petitioner employed the beneficiary from January 1999 onwards, the petitioner did not provide copies 
of the beneficiary's Form W-2, Wage and Tax Statement, or other evidence of having paid the beneficiary 
during the relevant period of analysis. 
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, contrary to counsel's 
assertions. 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), afd, 703 F.2d 571 
(7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the 
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). 
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. Suva, 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. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income figures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537. 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered annual wage of $49,691.20 fiom the priority date: 
In 2001, the Form 1 120s states a net income (10s~)~ of $1 1,658. 
In 2002, the Form 1120s states a net income (loss) of $2,861. 
In 2003, the Form 1120s states a net income (loss) of -$8,450. 
Therefore, for the years 2001, 2002 and 2003, the petitioner did not have sufficient net income to pay the 
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 amount of the proffered wage or more, CIS 
will review the petitioner's assets. 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 may not, therefore, be considered funds available to pay the proffered wage. Also the 
petitioner's liabilities must be subtracted from the petitioner's total assets, when analyzing the petitioner's 
ability to pay the proffered wage. Thus, 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. 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 
2 
 Ordinary income (loss) from trade or business activities as reported on Line 21 of the Form 1120s. 
3 
 According to Barron 's Dictionary of Accounting Terms 11 7 (31d 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. 
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 net current assets during 2001 were $45,872. 
The petitioner's net current assets during 2002 were $25,535. 
The petitioner's net current assets during 2003 were $24,390. 
Therefore, for the years 2001, 2002 and 2003, the petitioner did not have sufficient net current assets to pay 
the proffered wage. 
In sum, the petitioner has not established through wages paid to the beneficiary, net income, or net current 
assets that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date and 
through subsequent years. 
Finally, where the petitioner has not demonstrated sufficient net income or net current assets to pay the 
proffered salary, CIS may consider the overall magnitude of the entity's business activities and the totality of 
the circumstances concerning a petitioner's financial performance, when determining its ability to pay the 
proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Sonegawa, the Regional 
Commissioner considered an immigrant visa petition that had been filed by a small "custom dress and 
boutique shop" on behalf of a clothes designer. The district director denied the petition after determining that 
the beneficiary's annual wage of $6,240 was considerably more than the petitioner's net profit of $280 for the 
year of filing. On appeal, the Regional Commissioner considered an array of factors beyond the petitioner's 
net profit, including financial data, the petitioner's reputation and clientele, its number of employees, future 
business plans, news articles, and explanations of the petitioner's temporary financial difficulties. The 
Regional Commissioner looked beyond the petitioner's inadequate net income for the year of filing and found 
that the petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 
615. Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the proffered wage. 
Accordingly, CIS may, in its discretion, consider evidence relevant to a petitioner's financial ability that falls 
outside of a petitioner's net income and net current assets. CIS may consider such factors as the number of 
years that the petitioner has been doing business, the established historical growth of the petitioner's business, 
the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the 
petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an 
outsourced service, or any other evidence that CIS deems to be relevant to the petitioner's ability to pay the 
proffered wage. In this case, however, the only relevant forms of evidence provided by the petitioner are the 
Forms 1120s for 2001,2002 and 2003. This is not sufficient evidence to establish that the petitioner has met 
all of its obligations in the past or to establish its historical growth. In addition, such evidence is not sufficient 
to establish whether unusual circumstances exist in this case to parallel those in Sonegawa, nor to establish 
whether 200 1 through 2003 were uncharacteristically unprofitable years for the petitioner. 
The evidence submitted does not establish that the petitioner 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. 
§ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.