dismissed EB-3 Case: Construction

ide@fj,ing data deleted to 
prevent clearly unwarranted 
invasion of pemonai privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC-03-209-5 1206 Office: VERMONT SERVICE CENTER Date: R(Y 2 6 
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 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. 
Administrative Appeals Office 
EAC-03-209-5 1206 
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 firm. 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. 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, 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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's September 9, 2004 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. The denial was affirmed in the director's November 24, 2004 response to 
the petitioner's Motion to Reconsider. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 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. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 3 204.5(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 lawful 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 profitfloss 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. 9 204.5(d). The priority date in the instant 
petition is April 27, 2001. The proffered wage as stated on the Form ETA 750 is $24.40 per hour for 35 hours 
per week, which amounts to $44,408.00 annually. 
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 pertinent 
EAC-03-209-5 1206 
Page 3 
evidence in the record, including new evidence properly submitted upon appeal1. 
 No new evidence was 
submitted on appeal. Other relevant evidence in the record includes copies of the petitioner's Form 1120 U.S. 
Corporation Income Tax Returns for 2000, 2001, and 2002, copies of the petitioner's bank statements from 
January 2001 through May 2004, a letter from counsel dated July 30,2004, and a document submitted along with 
the 1-140 petition. The record does not contain any other evidence relevant to the petitioner's ability to pay the 
wage. 
Counsel states on appeal that it wants a definitive ruling and CIS'S rationale on whether bank statements and 
depreciation can be considered in determining the petitioner's ability to pay the proffered 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 lawful 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. 3 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial resources sufficient 
to pay the beneficiary's proffered 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. 
6 12 (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, on the Form ETA 750B, signed by the beneficiary on April 26,2001, the beneficiary claimed to have 
worked for the petitioner beginning in August 1999 and continuing through the date of the ETA 750B. However, 
the record does not contain any Form W-2's, Form 1099's, or other evidence to show that the beneficiary 
received compensation from the petitioner. 
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. Elatos 
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), af'd., 703 F.2d 571 (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. 
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). 
EAC-03-209-5 1206 
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The evidence indicates that the petitioner is a corporation. The record contains copies of the petitioner's Form 
1120 U.S. Corporation Income Tax Returns for 2000, 2001, and 2002. The record before the director closed on 
August 2,2004 with the receipt by the director of the petitioner's submissions in response to the RFE. As of that 
date the petitioner's federal tax return for 2004 was not yet due. Therefore the petitioner's tax return for 2003 is 
the most recent return available. A close look of the petitioner's tax returns reveals that they are based on fiscal 
years lasting from July 1 to June 30. Thus, the petitioner's Form 1120 U.S. Corporation Income Tax Return for 
2000 is for fiscal year 2001, the petitioner's Form 1120 U.S. Corporation Income Tax Return for 2001 is for fiscal 
year 2002, and the petitioner's Form 1120 U.S. Corporation Income Tax Return for 2002 is for fiscal year 2003. 
The record, therefore, does contain the petitioner's tax return for fiscal year 2003. 
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 1120-A U.S. Corporation Short Form Tax Return. The petitioner's tax 
returns show the amounts for taxable income on line 28 as shown in the table below. 
Fiscal Wage increase needed Surplus or 
year Net income 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 2001,2002, and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
As an alternative 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 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 net 
current assets as shown in the following table. 
Fiscal Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
EAC-03-209-5 1206 
Page 5 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001, 2002, and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
Counsel states on appeal that CIS erred in rejecting evidence of the balances available in the petitioner's bank 
accounts from January 2001 through May 2004 because those balances show that the petitioner's monthly 
balances were more than the monthly proffered wage, the petitioner's weekly balances were more than the 
weekly proffered wage, and the petitioner's daily balances were more than the weekly proffered wage. Counsel 
"request[s] [from the AAO] a definitive ruling on this issue and the rationale therefore." Evidence in support of 
this assertion includes copies of the petitioner's bank statements from January 2001 through May 2004 and a 
letter from counsel dated July 30,2004. 
Counsel's reliance on the balances 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 this case has not demonstrated why the documentation specified at 8 C.F.R. $ 204.5(g)(2) is 
inapplicable or otherwise paints an inaccurate financial picture of the petitioner. 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 were not reflected on its tax return, such as the petitioner's taxable income 
(income minus deductions) or the cash specified on Schedule L that the AAO considered in determining the 
petitioner's net current assets. Thus, the AAO will not look at the petitioner's bank balances in this case. 
Counsel also states on appeal that "depreciation figure should not be deducted from gross income, and should be 
added to the net income figure." Again, counsel requests a definitive ruling on this issue and the AAO's 
rationale. A document submitted along with the 1-140 petition likewise mentions depreciation. 
There is no precedent that would allow the petitioner to "add back to net cash the depreciation expense charged 
for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are noncash 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.) 719 F. Supp. at 537. Thus, the AAO does not consider depreciation in determining a 
petitioner's ability to pay the proffered wage. 
EAC-03-209-5 1206 
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Counsel further asserts that "[iln our experience of over 50 years, INS and CIS have never in any of our cases, 
until now, rejected our argument that the amount of depreciation is not an actual expense; is a return of part of 
previous expenditures; should not, for visa petitioner purposes, be deducted from gross income, but should be 
added to net income shown on the tax return." 
The record does not contain any documentary evidence showing that the AAO has, in the past, accepted counsel's 
argument on depreciation. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). 
Moreover, even if counsel did provide the citations of previous AAO decisions that support his assertion, 
counsel must show that those decisions are binding. While 8 C.F.R. 5 103.3(c) provides that precedent 
decisions of CIS are binding on all its employees in the administration of the Act, unpublished decisions are not 
similarly binding. Precedent decisions must be designated and published in bound volumes or as interim 
decisions. 8 C.F.R. 5 103.9(a). 
In the Motion to Reconsider dated September 23, 2004, counsel states that officer compensation paid to the 
corporation's sole owner in the amount of $75,900.00 for fiscal year 2003 can be considered in determining the 
petitioner's ability to pay the proffered wage because "[tlhe issue is not whether the [proffered wage] was actually 
paid; the issue is whether the petitioner had the ability to pay." 
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. However, CIS, in looking at 
the totality of the circumstances, may examine the financial flexibility that the owners have in setting their 
salaries based on the profitability of their corporation. In this case, the petitioner is owned by one officer. 
According to the record, no evidence indicates that the beneficiary was paid in 2001, and the petitioner had a net 
income of $6,069.00 in fiscal year 2001. Thus, the petitioner still needed $38,339.00 to meet the proffered wage 
in fiscal year 2001. The officer was compensated $62,400.00 in fiscal year 2001. $38,339.00 is 61.4% of the total 
compensation, and the AAO finds that it is unlikely that an officer would forego over one-half of his 
compensation in order to pay the salary of an employee. No evidence indicates that the beneficiary was paid in 
2003, and the petitioner needed $44,408.00 to meet the proffered wage because the petitioner had a negative net 
income and negative net current assets in fiscal year 2003. The officer was compensated $75,900.00 in fiscal 
year 2003. $44,408.00 is 58.5% of the total compensation, and the AAO again finds that it is unlikely that an 
officer would forego over one-half of his compensation in order to pay the salary of an employee. In addition, 
there is no evidence in the record besides counsel's statement that the officer could have or would have given up 
such significant percentages of his compensation. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). 
Thus, the AAO will not look at the amounts for officer compensation in this case. Moreover, even if the AAO 
does take the petitioner's officer compensation for fiscal year 2001 and 2003 into consideration, the petitioner still 
cannot show that it has the ability to pay the proffered wage in fiscal year 2002 because the officer was not 
compensated in fiscal year 2002. 
After a review of the evidence, it is concluded that the petitioner has not established its ability to pay the 
salary offered as of the priority date of the petition and continuing until the beneficiary obtains lawful 
permanent residence. The decisions of the director to deny the petition and to affirm the denial were correct, 
based on the evidence in the record before the director. 
EAC-03-209-5 1206 
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For the reasons discussed above, the assertions of counsel on appeal fail to overcome the decision of the 
director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.