dismissed EB-3 Case: Construction

U.S. Department of FIon~eland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
bc 
PETITION: 
 Immigrant petition for Alien Worker as an Other, Unslulled Worker 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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 carpenter supervisor. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor. The director 
determined that the petitioner had not established that it had the ability to pay the beneficiary the proffered 
wage at the time the priority date was established and continuing to the present, and denied the petition 
accordingly. 
On appeal, counsel submits a brief statement and additional evidence.' 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(iii), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under ths paragraph, of performing unshlled labor, not of a temporaiy or seasonal 
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 of prospective enzployer 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 pnority 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. 
Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 20, 2001. The proffered wage as stated on the Form ETA 
750 i's $15.93 per hour ($33,134.40 per year). The Form ETA 750 states that the position requires one (1) 
year of experience in the job offered or one (1) year of experience in the related occupation of carpenter. On 
the Form ETA 750B signed by the beneficiary on April 20,2001, the beneficiary claimed to have worked for 
the petitioner since April 2000. On the petition, the petitioner claimed to have been established in 1987, to 
The submission of addit~onal evidence on appeal is allowed by the instructions to the Form 1-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 8 103.2(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 AAO will first evaluate the decision of the 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. 
have a gross annual income of $1,100,000, to have a net annual income of $60,000, and to currently employ 
45 workers. 
With the instant petition filed on April 28, 2004, the petitioner submitted monthly bank statements for its 
business checking account from January 2001 to February 2004, and the beneficiary's W-2 form for 2000 and 
paystubs for 2000 through 2003 to establish the petitioner's ability to pay the proffered wage. 
On August 23, 2004, because the director deemed the evidence submitted insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, the director requested 
additional evidence (RFE) pertinent to that ability. In accordance with 8 C.F.R. 5 204.5(g)(2), the director 
specifically requested that the petitioner: 
Submit additional evidence to establish that [the petitioner] had the ability to pay the 
proffered wage or salary of $15.93 per hour as of April 20, 2001, the date of filing, and 
continuing to the present. 
Submit the 2001 United States federal income tax retum(s), which all schedules and 
attachments, for your business. If your business is organized as a corporation, submit the 
corporate tax return. If the business is organized as a sole proprietorship, submit the owner's 
individual tax return (Form 1040) as well as Schedule C relating to the business. 
As an alternative you may submit annual reports for 2001 which are accompanied by audited 
or reviewed financial statements. 
If the beneficiary was employed by you in 2001, submit copies of the beneficiary's Form W- 
2 Wage and Tax Statement(s) showing how much the beneficiary was paid by your business. 
In response to the WE received by the director on November 18, 2004, the petitioner submitted bank 
statements for 2001 through 2004, and the beneficiary's pay stubs and W-2 forms for 2000,2001 and 2002. 
The director denied the pktition on April 4, 2005, finding that the record did not establish that the petitioner 
had the ability to pay the offered wage at the time of filing. 
On appeal, counsel submits the beneficiary's W-2 forms for 2001 through 2004 and asserts that the 
petitioner's bank statements demonstrate that the petitioner had sufficient bank account balances to pay the 
difference between wages actually paid to the beneficiary and the proffered wage for those years. 
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 record contains copies of the 
beneficiary's W-2 forms for 2000 through 2004. Since the priority date is April 20, 2001, the wage paid to 
the beneficiary in 2000 is not relevant. The beneficiary's W-2 forms for 2001 through 2004 show that the 
petitioner paid the beneficiary $29,697.57 in 2001, which is $3,436.43 less than the proffered wage; the 
petitioner paid $30,471.25 in 2002, which is $2,663.15 less than the proffered wage; the petitioner paid 
$33,711.35 in 2003 and $34,146.50 in 2004. Therefore, the petitioner did establish that it paid the beneficiary 
the full proffered wage in 2003 and 2004, however, the petitioner is still obligated to demonstrate that it could 
Page 4 
pay the beneficiary the difference of $3,436.43 in 2001 and $2,663.15 in 2002 between wages actually paid to 
the beneficiary and the proffered wage with its net income or net current assets. 
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 or net current assets figure reflected 
on the petitioner's federal income tax return, without considergon 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. Feldmarz, 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). 
The petitioner's federal tax return is not the only evidence to establish the petitioner's ability to pay the 
proffered wage or the difference between wages actually paid to the beneficiary and the proffered wage. The 
regulation 8 C.F.R. 8 204.5(g)(2) also provides two other alternatives: annual reports or audited financial 
statements. In his RFE dated August 23, 2004, the director requested the petitioner to submit its tax returns as 
well as annual reports with audited or reviewed financial statements pursuant to the regulation. However, the 
petitioner did not submit any one of the three regulatory-prescribed forms of evidence to establish its ability 
to pay the proffered wage in the instant case. Therefore, the AAO cannot determine whether the petitioner 
had sufficient net income or net current assets to pay the difference between wages actually paid to the 
beneficiary and the proffered wage in 200 1 and 2002. 
The regulation at 8 C.F.R. 8 204.5(g)(2) states that the director may request additional evidence in appropriate 
cases. Although specifically and clearly requested by the director, the petitioner declined to provide copies of 
its tax returns for 2001 and 2002. The tax returns would have demonstrated the amount of taxable income the 
petitioner reported to the IRS and further reveal its ability to pay the proffered wage. The petitioner's failure 
to submit these documents cannot be excused. The failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. tj 103.2(b)(14). 
Counsel's reliance on the balance in the petitioner's bank account is misplaced. First, bank statements are not 
among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's 
ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases," the 
petitioner in ths case has not demonstrated why the documentation specified at 8 C.F.R. tj 204.5(g)(2) is 
inapplicable or otherwise paints an inaccurate financial picture of the pehtioner. Second, bank statements show 
the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third, 
no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow 
reflect additional available funds that are not reflected on its tax return, such as the petitioner's taxable income 
(income minus deductions) or the cash specified on Schedule L that would have been considered in determining 
the petitioner's net current assets if provided. 
Therefore, 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 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. 
Counsel's assertions on appeal cannot overcome the decision of the director that the evidence submitted by 
the petitioner did not demonstrate that the petitioner could pay the proffered wage from the day the Form 
Page 5 
ETA 750 was accepted for processing by any office within the employment system of the Department of 
Labor. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.