dismissed EB-3 Case: Construction

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington , DC 20529
U.S. Citizenship .
and Immigration
Services
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FILE:
EAC-05-117-50415
Office: VERMONT SERVICE CENTER Date: OC1 2 4 2006
INRE : Petitioner :
Benefic iary:
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. § l153(b) (3)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All docum ents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~rr · ·
Robert P. Wiemann , Chief
Administrative Appeals Office
www.uscls.gov
Page 2
DISCUSSION: The preference visa petition was denied by the Center Director (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 cement mason. As required by statute, the petition is accompanied by a Form ETA 750, Application for
Alien Employment Certification (labor certification application or Form ETA 750), approved by the
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.
Counsel filed a timely appeal with additional evidence.'
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 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.
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability ofprospective 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 Application for Alien Employment Certification, was accepted for
processing by any office within the employment system of the U.S. Department of Labor. See 8 CFR
§ 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 U.S. Department
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg.
Comm. 1977).
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)(1). The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision ofthe director, based on the
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then
be considered ..
'.'
Page 3
The instant petition is for a substituted beneficiary.' Here, the original Form ETA 750 was accepted on
January 14, 1998. The proffered wage as stated on the Form ETA 750 is $17 per hour ($35,360 per year).
The Form ETA 750 states that the position requires two (2) years experience in the job offered. The 1-140
petition was submitted on March 11, 2005. On the petition, the petitioner claimed to have been established in
1992, to currently have forty (40) employees, to have a gross annual income of $1,531,629, and to have a net
annual income of $815,636. With the petition, the petitioner submitted a Form ETA 750B with information
pertaining to the qualifications of-the new beneficiary. On the Form ETA 750B, signed by the beneficiary on
September 8, 2004, the beneficiary did not claim to have worked for the petitioner.
With the petition, the petitioner submitted its Form 1120, U.S. Corporation Income Tax Return for 2001 and
2002 pertinent to its ability to pay the proffered wage.
The director denied the petition on April 15, 2005, finding that the evidence submitted with the petition did
not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority
date.
On appeal counsel asserts that the director must also consider the petitioner's normal accounting practices,
gross income and salaries paid. Counsel submits the petitioner tax returns for 1998 through 2000 as
additional evidence to establish the petitioner's ability to pay the proffered wage.
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 submit evidence that
the petitioner paid any compensation to the beneficiary, nor did the beneficiary claim to have worked for the
petitioner. Counsel requests considering salaries paid by the petitioner to its employees. However, in general,
wages already paid to others are not available to prove the ability to pay the wage proffered to the beneficiary at
the priority date of the petition and continuing to the present. Therefore, the petitioner has not established that it
employed and paid the beneficiary the proffered wage during the period from the priority date to the present.
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.CP. 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), aff'd, 703 F.ld 571.'(7th Cir. 1983).
On appeal counsel requests considering the salaries paid by the petitioner in 1998 ($415,605), in 1999
($390,405) and the gross income of the petitioner in determining the petitioner's ability to pay the proffered
wage. Counsel's reliance on the petitioner's gross receipts or wage expense is misplaced. Showing that the
2 An 1-140 petition for a substituted beneficiary retains the same priority date as the original ETA 750.
Memorandum from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization Service, to
Regional Directors, et al., Substitution of Labor Certification Beneficiaries, at 3, http://ows.doleta.gov/
dmstree/fm/fm96/fm_28-96a.pdf (March 7, 1996).
....
Page 4
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.CP . 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 .
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 Etatos, 632
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net
income figure s 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 record of proceeding contains copies of the petitioner's Form 1120 , U.S. Corporation Income Tax
Return, for 1998 through 2002. The tax return shows that the petitioner is structured as a C corporation and
the petitioner 's fiscal year is based on a calendar year. The tax returns demonstrate the following financial
information pertinent to the petitioner 's ability to pay the proffered wage from the priority date of January 14,
1998:
In 1998, the Form 1120 stated net income" of$681.
In 1999, the Form 1120 stated net income of$32,661.
In 2000, the Form 1120 stated net income of$O .
.In 2001, the Form 1120 stated net income of $(69,932).
In 2002, the Form 1120 stated net income of $20,530.
Therefore, for the years 1998 through 2002, the petitioner did not have sufficient net income to pay the
proffered wage of $35,360.
If the net income the pet itioner 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 busines s. Those depreciable assets will not be converted to cash during the ordinary cour se 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
3 Taxable income before net operating loss deduction and special deductions as reported on Line 28.
4 According to Barron 's Dictionary ofAccounting Terms 117 (3Td ed. 2000), "current assets" consist of items
Page 5
liabilities are shown on lines 16 through 18. lfthe total ofa corporation 's end-of-year net current assets and
the wages paid to the benefic iary (if any) are equal to or greater than the proffered wage, the petitioner is
expected to be able to pay the proffered wage u sing those net current assets .
The tax returns demonstrate the following financial information pertinent to the petit ioner's ability to pay the
proffered wage from the priority date of January 14, 1998 :
In 1998, Schedule L of the Form 1120 stated net current assets of $(62,331).
In 1999, Schedule L of the Form 1120 stated net current assets of $(17,952).
,In 2000, Schedule L of the Form 1120 stated net current assets of $(53,225).
In 2001, Schedule L of the Form 1120 stated net current assets of $(29,629).
In 2002, Schedule L of the Form 1120 stated net current assets of $(10,196).
The petitioner's net current assets for these years were negative. Therefore , the petitioner had insufficient net
current assets to pay the proffered wage in the years 1998 through 2002 .
Therefore, from the date the Form: ETA 750 was accepted for processing by the U . S. Department of Labor,
the petitioner had not establ ished that it had the continuing ability to pay the beneficiary the difference
between the wage paid arid 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.
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax return as
submitted by the petitioner that demonstrates that the pet itioner could not 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 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 dism issed.
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 118.