dismissed EB-3 Case: Construction

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
@ U.S. Citizenship 
PUBLIC COPY and Immigration Services 
i-tifying data dew to 
prevent dearly unwarranted 
invasion of personal privacy 
Office: VERMONT SERVICE CENTER 
 Date: APR 2 4 2007 
- 
EAC 05 081 52462 
. . 
PETITION: 
 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. 5 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 
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 business. It seeks to employ the beneficiary permanently in the United States 
as a carpenter. As required by statute, a Form ETA 750, Application for Alien Employment Certification 
approved by the Department of Labor, accompanied the petition. As set forth in the director's July 27, 2005 
decision denying the petition, 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 
and denied the petition accordingly. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history of this case is documented in the record and is incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 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 or seasonal nature, for which qualified workers are not available in 
the United States. 
The regulation at 8 C.F.R. fj 204.5(g)(2) states: 
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 lawfbl permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. 5 204.5(d). The priority date in the instant 
petition is April 30, 2001. The proffered wage as stated on the Form ETA 750 is $24.60 per hour, based on a 
35-hour workweek, which amounts to $44,772.00 annually. 
The AAO reviews appeals on a de novo basis. See Dor v. I.N.S. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). The 
AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
In the instant appeal, the petitioner submits a brief, an addendum to the brief, and additional evidence. 
Relevant evidence submitted on appeal includes: copies of earning statements issued to the beneficiary from 
the petitioner for 2005 and 2006, reflecting $38,007.00 paid from the pay period beginning 12/28/05 through 
the pay period ending 10124/06, and $26,396.45 paid "year to date" in 2005; previously submitted copies of 
Page 3 
the beneficiary's IRS Form W-2 Wage and Tax Statement issued by the petitioner for 2002, 2003, and 2004; 
previously submitted copies of the petitioner's federal income tax returns for 2002 and 2003; and a previously 
submitted copy of the petitioner's request for an extension of time to file its tax return for 2004. Other 
relevant evidence in the record includes a copy of the petitioner's federal tax return for 2001. 
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 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). 
On appeal, counsel cites to Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967) and states, in part: "The gross 
annual income generated by the Petitioner in conjunction with the actual wages paid to the Beneficiary by the 
Petitioner prove the Petitioner's ability to pay the prevailing wage offered to the ~etitioner'." In his 
addendum, counsel states, in part, that from 0 1 /0 1/06 through 10/27/06, the petitioner paid the beneficiary 
$38,007.00, thereby demonstrating its ability to pay the prevailing wage. 
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 lawhl 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. 5 204.5(g)(2). For each year at issue, the petitioner's financial resources generally must be sufficient 
to pay the annual amount of the beneficiary's 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. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, the petitioner has not established that it employed and paid the beneficiary the full proffered 
wage from the priority date onwards. Copies of earning statements issued to the beneficiary from the 
petitioner for 2005 and 2006 reflect $38,007.00 paid from the pay period beginning 12/28/05 through the pay 
period ending 10124106, and $26,396.45 paid "year to date" in 2005. These amounts, however, do not 
demonstrate a continuing ability to pay the proffered wage or the ability at the priority date. The petitioner is 
obligated to demonstrate that it could pay the full proffered wage from its April 30,2001 priority date. 
The record contains copies of Form W-2 Wage and Tax Statements of the beneficiary. The beneficiary's W-2 
forms for 2002,2003, and 2004 show compensation received from the petitioner, as shown in the table below. 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage. 
I 
 Presumably counsel means "Beneficiary." 
EAC 05 081 52462 
Page 4 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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. EZatos 
Restaurant COT. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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)' affd., 703 F.2d 57 1 (7" Cir. 1983). In K. C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Chi-Feng CJza~zg V. 77zor1zburgh, 719 F. Supp. 532 (N.D. Tex. 
1 989); see also Elatos Restaurant Corp., 632 F. Supp. at 1 054. 
The evidence indicates that the petitioner is a corporation. The record contains copies of the petitioner's Form 
1 120 U.S. Corporation Income Tax Returns for 200 1, 2002, and 2003. The record before the director closed on 
May 6, 2005 with the receipt by the director of the petitioner's submissions in response to the notice of intent to 
deny. The petitioner's tax return for 2003 is the most recent return provided by the petitioner. In the instant case, 
on the Form ETA 750B, signed by the beneficiary on August 23, 2004, the beneficiary did not claim to have 
worked for the petitioner. 
For a corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of the Form 1120 U.S. Corporation Income Tax Return, or the 
equivalent figure on line 24 of the Form 1 120-A U.S. Corporation Short Form Tax Return. 
The petitioner's tax returns state amounts for taxable income on line 28 as shown in the table below. 
Tax 
year 
Net income Wage increase needed Surplus or 
or (loss) to pay the proffered wage (deficit) 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 200 1. 
** Crediting the petitioner with the compensation actually paid to the 
beneficiary in those years. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
kAL U3 UZSI 3L46L 
Page 5 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a corporate taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. If a corporation's net current assets are equal to or greater than 
the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield the amounts for year-end 
net current assets as shown in the following table. 
Tax 
year 
Net 
current Wage increase needed Surplus or 
assets to pay the proffered wage (deficit) 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 200 1. 
** Crediting the petitioner with the compensation actually paid to the 
beneficiary in those years. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
Counsel's reliance on Matter of Sonegawa, 12 I&N Dec. 6 12 (Reg. Comm. 1967), is misplaced. That case relates 
to a petition filed during uncharacteristically unprofitable or difficult years, but only within a framework of 
profitable or successful years. The petitioning entity in Sonegawa had been in business for over 11 years and 
routinely earned a gross annual income of about $100,000.00. During the year in which the petition was filed in 
that case, the petitioner changed business locations and paid rent on both the old and new locations for five 
months. There were large moving costs and, also, a period of time when the petitioner was unable to do regular 
business. The Regional Commissioner determined the petitioner's prospects for a resumption of successfU1 
business operations were well established. The petitioner was a fashion designer whose work had been featured in 
Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The 
petitioner's clients had been included in the lists of the best-dressed California women. The petitioner lectured on 
fashion design at design and fashion shows throughout the United States and at colleges and universities in 
California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound 
business reputation and outstanding reputation as a couhulere. 
No unusual circumstances, parallel to those in Sonegawa, have been shown to exist in this case, nor has it been 
established that 2001, 2002, and 2003 were uncharacteristically unprofitable years for the petitioner. It is also 
noted that information on the petition reflects that the petitioner has only 10 employees. The petitioner's income 
tax returns reflect only $5,750.00, $25,225.00, and $1 1,750.00 paid in salaries and wages, and $150,503.00, 
$1 13,678.00, and $203,766.00 as cost of labor for 2001,2002 and 2003, respectively. 
EAC 05 081 52462 
Page 6 
Forms 1 120 of the petitioning business 
Gross receipts 
Year or sales Gross Income Net Profit 
Counsel argues that the petitioner's gross annual income in conjunction with the actual wages paid to the 
beneficiary prove the petitioner's ability to pay the prevailing wage offered to the beneficiary. 
In K. C.P. 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-Felzg 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 incomefigures 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. 
In his May 5, 2005 letter, counsel also argued that the petitioner had the option to use compensation to 
officers as a form of payment in its 2001, 2002, 2003, and 2004 tax returns. It is noted that the record as it is 
presently constituted does not contain a copy of the petitioner's 2004 income tax return. The sole shareholder of a 
corporation has the authority to allocate expenses of the corporation for various legitimate business purposes, 
including for the purpose of reducing the corporation's taxable income. Compensation of officers is an expense 
category explicitly stated on the Form 1 120 U.S. Corporation Income Tax Return. For thrs reason, the petitioner's 
figwes for compensation of officers may be considered as additional financial resources of the petitioner, in 
addition to its figures for ordinary income. 
The documentation presented here indicates that 
 held 33.40 percent of the petitioner's stock in 
2001,2002, and 2003, and that 
 and I each held 33.30 percent of the petitioner's stock in 
2001. 2002. and 2003. According to the ~etitioner's IRS Form 1120. U.S. Corporation Income Tax Return. 
compensation of Officers, reported on ~ciedule E of page 2, 
 himself $2,475.00 in 
2001, $18,150.00 in 2002, and $19,275.00 in 2003. 
 and both elected to pay 
themselves $19,800 in 2001, $36,300.00 in 2002, and $28,450.00 in 2003. 
 are not supported by 
W-2 forms. 
CIS (legacy INS) has long held that it may not "pierce the corporate veil" and look to the assets of the 
corporation's owner to satisfy the corporation's ability to pay the proffered wage. It is an elementary rule that a 
corporation is a separate and distinct legal entity fkom its owners and shareholders. See Matter of M, 8 I&N Dec. 
Page 7 
24 (BIA 1958), Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 
I&N Dec. 631 (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. 
In the present case, however, CIS would not be examining the personal assets of the petitioner's owners, but, 
rather, the financial flexibility that the employee-owners have in setting their salaries based on the 
profitability of their corporation. It is noted that the officer compensation for each of the three officers is less 
than the proffered wage in all of the pertinent years. Further, the petitioner suffered a taxable income loss in 
2002. Moreover, the record of proceeding does not contain evidence that would demonstrate that the officers 
could or would forego all andlor a portion of their officer's compensation in 2001, 2002, and 2003 that could 
be redistributed towards having sufficient funds to pay the proffered wage in those years. 
The record contains no other evidence relevant to the petitioner's financial situation. 
Based on the foregoing analysis, the evidence in the record fails to establish the petitioner's ability to pay the 
proffered wage as of the priority date and continuing until the beneficiary obtains lawful perrnanent residence. 
The decision of the director to deny the petition was correct, based on the evidence in the record before the 
director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
Beyond the decision of the director, the evidence fails to establish that the beneficiary has met the petitioner's 
qualifications for the position as stated in the Form ETA 750 as of the petition's priority date.2 On the ETA 750A 
submitted with the instant petifion, blocks 14 and 15 describe the requirements of the offered position as two 
years of experience as a carpenter. The letter submitted by the petitioner with the petition, dated July 16, 2004, 
ffom the assistant manager of financing at Engineering Architecture and Construction S.A. indicates that the 
beneficiary worked as a carpenter for two years, but does not provide a description of duties for the beneficiary, 
as required by 8 C.F.R. $ 204.5(1)(3)(ii)(A). To determine whether a beneficiary is eligible for an employment- 
based immigrant visa as set forth above, CIS must examine whether the alien's credentials meet the requirements 
set forth in the labor certification. CIS may not ignore a terrn of the labor certification, nor may it impose 
additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 
1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 
1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 
198 1). Therefore, the petitioner has not demonstrated that the beneficiary is qualified to perform the duties of 
the proffered position. For this additional reason, the petition may not be approved. 
2 
 An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
Page 8 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.