dismissed EB-3 Case: Construction

invasion of pemnal @'LW 
U.S. Departnlent of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decisioil of the Administrative Appeals Office in your case. All documents ha$e 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 
- Page 2 
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 stone mason supervisor. 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). 
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. 
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 28, 2005 denial, the single issue in this case is whether or not 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. 5 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 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, Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the DOL. See 8 C.F.R. 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, Application for Alien Employment Certification, as certified by the DOL and submitted with the instant 
petition. Mutter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $35.43 per hour ($73,694.40 per year based on a 40 hour work week). The Form ETA 750 states that 
the position requires two years of experience in the job offered or four years of experience in a related field 
including stone mason, concrete mason or other masonry trade positions. 
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 
Page 3 
pertinent evidence in the record, including new evidence properly submitted upon appeal.' 
 On appeal, 
counsel submits a brief, a letter dated March 11, 2005 from the petitioner's CPA, the petitioner's amended 
IRS Form 1120S, U.S. Income Tax Return for an S Corporation, for 2002, the beneficiary's previously 
submitted IRS Form W-2, Wage and Tax Statement, issued by the petitioner for 2002, the beneficiary's IRS 
Form W-2, Wage and Tax Statement, issued by the petitioner for 2003, and the first page of the petitioner's 
previously submitted IRS Form 1120S, U.S. Income Tax Return for an S Corporation, for 2003. Other 
relevant evidence in the record includes the petitioner's IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation, for 2001, a letter dated November 23, 2004 from the petitioner's CPA, the petitioner's IRS 
Forms W-3, Transmittal of Wage and Tax Statements, for 2001, 2002 and 2003, and the beneficiary's IRS 
Form W-2, Wage and Tax Statement, issued by the petitioner for 200 1. 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 1992 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 the 
Form ETA 750B, signed by the beneficiary on April 27, 2001, the beneficiary claimed to have started work 
for the petitioner as a stone mason in September 1999. The beneficiary does not state a date on which he left 
his job with the petitioner on Form ETA 750B. 
On appeal, counsel asserts that the petitioner had adequate revenue to pay the proffered wage since it charged 
off payroll under its "costs of goods sold." Citing the March 11, 2005 letter from the petitioner's CPA, 
counsel states that the petitioner amended its 2002 federal income tax return and that the amended return 
demonstrates the petitioner's ability to pay the proffered wage in 2002. Counsel further states that the 
petitioner's net income and the wages paid by the petitioner to the beneficiary in 2003 establish the 
petitioner's ability to pay the proffered wage. In his March 11, 2005 letter, the petitioner's CPA asserts that 
the petitioner's depreciation expense and interest income should be added back to the petitioner's income in 
2002. He further states that he incorrectly identified certain loans due to a related entity as short-term 
liabilities rather than long-term liabilities on the petitioner's 2002 federal income tax return and, therefore, the 
petitioner amended its 2002 tax return. In a letter dated November 23, 2004, the petitioner's CPA states that 
the petitioner's wage expense illustrates that the petitioner has the ability to pay the proffered wage. He 
asserts that the petitioner's profit projections for 2004 and 2005 show profits of $125,000.00 and 
$500,000.00, respectively. He states that the petitioner has bookings for future work into 2007 and that the 
petitioner's shareholder has access to a $1,000,000.00 line of credit that the shareholder could use to infuse 
cash into the petitioner's business. Finally, the petitioner's CPA states that due to the nature of the 
petitioner's construction business, it often does not recognize income until later years when projects are 
completed. He states that the petitioner receives construction advances that equalize cash flow and enable the 
petitioner to pay its expenses. 
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 lawfbl permanent residence. The 
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. 5 103.2(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). 
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. 5 204.5(g)(2). 
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 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 $32,859.75. 
In 2002, the Form W-2 stated compensation of $33,217.50. 
In 2003, the Fom W-2 stated compensation of $16,207.50. 
Therefore, for the years 2001, 2002 and 2003, 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 each year. Since the 
proffered wage is $73,694.40 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 $40,834.65, $40,476.90 and 
$57,486.90 in 2001,2002 and 2003, respectively. 
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 PYoodcraft 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. 111. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The record contains the petitioner's IRS Forms W-3, Transmittal of Wage and Tax Statements, for 2001, 
2002 and 2003. The petitioner's CPA states that the petitioner's wage expense illustrates that the petitioner 
has the ability to pay the proffered wage. However, reliance on the petitioner's wage expense is misplaced. 
Showing that the petitioner paid wages in excess of the proffered wage is insufficient. 
The cowt 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 record before the director closed on November 26,2004 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 2003 federal 
Page 5 
income tax return is the most recent return available. The petitioner's tax returns demonstrate its net income 
for 2001 and 2002, as shown in the table belowa2 
In 2001, the Form 1 120s stated net income3 of $7,256.00.~ 
In 2002, the Form 1120s stated net income of -$188,883.00.~ 
Therefore, for the years 2001 and 2002, the petitioner did not have sufficient net income to pay the difference 
between the wages actually paid to the beneficiary and the proffered wage. 
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 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 I 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's 
tax returns demonstrate its end-of-year net current assets for 2001 and 2002, as shown in the table below. 
In 2001, the Form 1 120s stated net current assets of $93,301.00. 
2 
 Despite the petitioner's CPA's explanation of the rationale for amending the petitioner's 2002 corporate tax 
return, because the petitioner amended its return in the middle of the proceedings, CIS would require an IRS- 
certified copy to corroborate the assertion that the amended return was actually processed by the IRS. The 
amended return submitted by the petitioner is not a certified copy. A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to CIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Thus, CIS will only examine the version of the petitioner's 2002 tax return that was initially 
submitted and not the amended version as submitted on appeal. Further, this office notes that the record does 
not contain Schedule K of the petitioner's 2003 federal income tax return. Therefore, the petitioner's net 
income may not be analyzed against the difference between the wages actually paid to the beneficiary and the 
proffered wage in 2003. 
3 
 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 1120s. However, where an S 
corporation has income, credits, deductions or other adjustments from 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, 
deductions or other adjustments, net income is found on line 23 of Schedule K. Because the petitioner had 
additional income and deductions shown on its Schedule K for 2001 and additional income shown on its 
Schedule K for 2002, the petitioner's net income is found on line 23 of Schedule K of its tax return. 
4 
 The director erroneously stated that the petitioner's 2001 net income was $22,127.00. However, this error 
does not alter the ultimate outcome of the appeal. 
5 
 The petitioner's CPA is correct that the petitioner's interest income listed on line 4a of Schedule K of its 
2002 IRS Form 1120s should be considered in the calculation of the petitioner's net income. 
6 
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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
Page 6 
In 2002, the Form 1120s stated net current assets of $19,668.00. 
Therefore, for the year 2001, the petitioner had sufficient net current assets to pay the difference between the 
wages actually paid to the beneficiary and the proffered wage. For the year 2002, the petitioner did not have 
sufficient net current assets to pay the difference between the wages actually paid to the beneficiary and the 
proffered wage.7 
Thus, from the date the Form ETA 750 was accepted for processing by the DOL, 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 except for 
2001. 
On appeal, the petitioner's CPA asserts that the petitioner's profit projections for 2004 and 2005 show profits 
of $125,000.00 and $500,000.00, respectively. He also states that the petitioner has bookings for future work 
into 2007. A petitioner must establish eligibility at the time of filing. A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 
45, 49 (Comm. 1971). In addition, the petitioner has provided no evidence of its profit projections or future 
bookings. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffi, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craaft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
On appeal, the petitioner's CPA asserts that the petitioner's shareholder has access to a $1,000,000.00 line of 
credit that the shareholder could use to infuse cash into the petitioner's busine~s.~ Contrary to counsel's 
7 
 This oflice notes that the record does not contain Schedule L of the petitioner's 2003 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 2003. 
8 
 This office notes that the petitioner has provided no evidence of a line of credit for either the petitioner or 
its shareholders. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In calculating the 
ability to pay the proffered salary, CIS will not augment the petitioner's net income or net current assets by 
adding in the corporation's credit limits, bank lines, or lines of credit. A "bank line" or "line of credit" is a 
bank's unenforceable commitment to make loans to a particular borrower up to a specified maximum during a 
specified time period. A line of credit is not a contractual or legal obligation on the part of the bank. See 
Barron's Dictionary ofFinance and investment Terms, 45 (1998). Since a line of credit is a "commitment to 
loan" and not an existent loan, the petitioner has not established that any unused funds from a Iine of credit 
are available at the time of filing the petition. As noted above, a petitioner must establish eligibility at the 
time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new 
set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Moreover, the petitioner's existent 
loans will be reflected in the balance sheet provided in the tax return or audited financial statement and will be 
fully considered in the evaluation of the corporation's net current assets. Comparable to the limit on a credit 
card, the line of credit cannot be treated as cash or as a cash asset. However, if the petitioner wishes to reIy 
on a line of credit as evidence of ability to pay, the petitioner must submit documentary evidence, such as a 
detailed business plan and audited cash flow statements, to demonstrate that the line of credit will augment 
and not weaken its overall financial position. Finally, CIS will give less weight to loans and debt as a means 
of paying salary since the debts will increase the firm's liabilities and will not improve its overall financial 
assertion, CIS may not ('pierce the corporate veil" and look to the assets of the corporation's shareholder to 
satisfy the corporation'$ ability to pay the proffered wage. It is an elementary rule that a corporation is a 
separate and distinct legal entity from its shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter 
ofAphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 I&N Dec. 63 1 (Act. 
Assoc. Comm. 1980). Consequently, assets of its shareholders or of other enterprises or corporations cannot 
be considered in determining the petitioning corporation's ability to pay the proffered wage. 
Finally, the petitioner's CPA states that due to the nature of the petitioner's construction business, it often 
does not recognize income until later years when projects are completed. He states that the petitioner receives 
construction advances that equalize cash flow and enable the petitioner to pay its expenses. The petitioner's 
tax returns were prepared pursuant to the accrual method, in which revenue is recognized when it is earned, 
and expenses are recognized when they are incurred. If revenues are not recognized in a given year pursuant 
to the accrual method then the petitioner, whose taxes are prepared pursuant to accrual, may not use those 
revenues as evidence of its ability to pay the proffered wage during that year. Thus, the amounts shown on 
the petitioner's tax returns shall be considered as they were submitted to IRS. 
The assertions of the petitioner's counsel and the petitioner's CPA cannot be concluded to outweigh the 
evidence presented in the tax returns as submitted by the petitioner that demonstrates that the petitioner could 
not pay the proffered wage from the day the Form ETA 750 was accepted for processing by the DOL. 
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. 
5 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
position. Although lines of credit and debt are an integral part of any business operation, CIS must evaluate 
the overall financial position of a petitioner to determine whether the employer is making a realistic job offer 
and has the overall financial ability to satisfy the proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 
(Acting Reg. Comm. 1977).