dismissed EB-3 Case: Construction

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U.8. Department of HomelandSecurity
20 Mass. Ave ., N.W. Rn1. 3000
Washington, DC 20529
u.s.Citizenship
and Immigratlon
Services
EAC 04 154 51419
Office: VERMONT SERVICE CENTER Date: NOV 0 1 ZII
INRE: Petitioner:
Beneficia
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.
n~'<\'J
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscls.gov
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is
now before the Administrative Appeals Office 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 an assistant purchasing manager. 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. 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.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 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 regulation at 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
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 regulation at 8 CFR § 204.5(1)(3)(ii) states, in pertinent part:
(A) General. Any requirements of training or experience for skilled workers,
professionals, or other workers must be supported by letters from 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.
(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 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 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 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).
Here, the Form ETA 750 for the employer_Constructions Inc. was accepted on March 19, 2001.!
The proffered wage as stated on the Form ETA 750 is $32,822.00 per year. The Form ETA 750 states that the
position requires two years experience.
On appeal, counsel submits additional evidence.
With the petition, counsel submitted copies of the following documents: the original Form ETA 750,
Application for Alien Employment Certification, approved by the u.s. Department of Labor; U.S. Internal
Revenue Service Form tax return for 2002; and, copies of documentation concerning the beneficiary's
qualifications as well as other documentation.
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8
C.F.R. § 204.5(g)(2), the director requested on August 23, 2004, pertinent evidence of the petitioner's ability to
pay the proffered wage beginning on the priority date.
The director requested evidence in the form of copies U.S. federal tax returns for 2001 and 2002, and, copies of
the beneficiary's W-2 Wage and Tax Statements for 2001.
In response to the request for evidence, counsel submitted copies of the following documents: the beneficiary's
the petitioner's U.S. Internal Revenue Service (IRS) Form 1120 tax returns for years 2001, and 2002.
The director denied the petition on December 6, 2004, finding that the evidence submitted did not establish
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.
On appeal, counsel fails to identify specifically any erroneous conclusion of law or statement of fact for the
appeal. Section three of the CIS appeal form I-290B is blank. Further the accompanying letter is also without a
statement of an erroneous conclusion of law or a statement of fact as a basis for the appeaL 2
Counsel has submitted the. following documents to accompany the appeal statement: the petitioner's statement
report NYS-45; copies of paid checks; petitioner's Form 941 for September 4, 2004; and, a copy of the
payment record to the beneficiary by the petitioner.
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. 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
1 It has been approximately five years since the Alien Employment Application has been accepted and the
proffered wage established. According to the employer certification that is part of the application, ETA Form
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work."
2 The regulation at 8 C.F.R. § l03.3(a)(1)(v) states, in pertinent part: "An officer to whom an appeal is taken
shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous
conclusion of law or statement of fact for the appeal." Counsel stated in a fax inquiry and request by the AAO for
a brief and/or evidence that it had been sent on January 8, 2005, but after another request from the AAO for the
same, counsel indicated October 6, 2002006, that no brief or evidence was submitted.
. Page 4
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. Evidence was submitted to show that the petitioner employed
the beneficiary. A NYS-45-ATT (Quarterly Combined Withholding, Wage Reporting and Unemployment
Insurance Return" for the yearly 3 rd quarter of 2004 states wages paid by the petitioner to the beneficiary of
$5,080.00. Approximately 18 copies of checks payable to the beneficiary by the petitioner (with no evidence
on them of cancellation or payment) were submitted stating equal payments of $473.51 (total payment of
$8,523.18) during year 2004.
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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), aff'd, 703
F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court held that the Service 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. Id. at 1084. The court specifically rejected the argument that CIS should have
considered income before expenses were paid rather than net income. Finally, no precedent exists that would
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng at 537.
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the
proffered wage of$32,822.00 per year from the priority date of March 19,2001:
• In 2001, the Form 1120 stated taxable income of$8,751.00.
• In 2002, the Form 1120 stated taxable income of $31,581.00.
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to
pay the proffered wage at any time between the years 2001 through 2002 for which the petitioner's tax returns
are offered for evidence.
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. That schedule is included
with, as in this instance, the petitioner's filing of Form 1120 federal tax return. The petitioner's year-end
current liabilities 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.
Examining the Form 1120 U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each of
those returns indicates the following:
3 According to Barron's Dictionary ofAccounting 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
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.
• In 2001, petitioner's Form 1120 return stated current assets of $313,552.00 and $380,717.00
in current liabilities. Therefore, the petitioner had <$67,165.00> in net current assets. Since
the proffered wage is $32,822.00 per year, this sum is less than the proffered wage.
• In 2002, petitioner's Form 1120 return stated current assets of $206,914.00 and $198,821.00
in current liabilities. Therefore, the petitioner had $8,093.00 in net current assets. Since the
proffered wage is $32,822.00 per year, this sum is less than the proffered wage.
Therefore, for the period 2001 through 2002 from the date the Form ETA 750 was accepted for processing by
the U. S. Department of Labor, the petitioner had not established that it had the ability to pay the beneficiary
the proffered wage at the time of filing through an examination of its net current assets.
Counsel made no assertion to accompany the appeal. According to regulation," copies of annual reports,
federal tax returns, or audited financial statements are the means by which petitioner's ability to pay is
determined,
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered
wage beginning on the priority date.
Counsel's contentions cannot be concluded to outweigh the evidence presented in the two corporate tax
returns as submitted by petitioner that shows that the petitioner has not demonstrated its ability to 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 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.
4 8 C.F.R. § 204.5(g)(2).