dismissed EB-3 Case: Dry Cleaning

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
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FILE: EAC 04 061 50972 Office: VERMONT SERVICE CENTER 
 Date: NAR 2 1 ZoOh 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 04 061 50972 
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 dry cleaners. It seeks to employ the beneficiary permanently in the 
United States 
 r. 
 As required by statute, a Form ETA 750, Application for Alien 
Employment Certification, approved by the Department of Labor, accompanies 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. The director denied the petition 
accordingly. 
On appeal, counsel submits: 
A brief; 
pages for various months in 2001 in the name o 
fiscal year beginning October 1,2001. 
The regulation 8 C.F.R. 9 204.5(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 U.S. Department of Labor. See 8 CFR 
§ 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. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 23,2001. The proffered wage as stated on the Form ETA 750 
is $12.50 per hour ($26,000 per year). 
The evidence in the record of proceeding shows that s structured as an S corporation. On the petition, 
the petitioner claimed to have been established in April 15, 1997,~ to have a gross annual income of $150,000, 
and to currently employ two workers. According to the tax returns in the record, the petitioner's fiscal year 
lasts from October 1 to September 30. On the Form ETA 750B, signed by the beneficiary on April 17,2001, 
the beneficiary claimed to have worked for the petitioner since January 1998. 
With the petition, the petitioner submitted the following documents: 
- 
proceedings contains no explanation of the relationship between the petitioner and However, 
signed both the ETA 750 and the etition. 
Apd IS, 1997, as the date o-establishment. The submitted Form 1120s each lists 
April 22, 1997 as the date of Valet's incorporation. 
EAC 04 061 50972 
Page 3 
Co ies of the beneficiary's W-2 Wage and Tax Statement for 2001 issued by 
Copies o Form 1120s for its fiscal years commencing in 2000 and 2001; and, 
Counsel's G-28. 
The director denied the petition on July 23, 2004, finding that the evidence submitted with the petition did not 
establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority 
date. 
On appeal, counsel asserts that the petitioner deducted $5,883 for depreciation from net income but should be 
added back to the income that is available to pay the proffered wage. Moreover, because the petitioner has 
already employed and paid the beneficiary $19,125.03 in wages in 200 1, the petitioner need only demonstrate 
its ability to pay the $6,874.97 difference between the wages paid in 2001 and the proffered wage. Further, 
the director, rather than relying only upon the negative $23,598 net income reported on the Form 1120 for 
2001, should also have looked to the $55,363 consisting of capital stock, paid-in capital and added-back 
depreciation. Further, counsel asserts that additionally, the petitioner had other cash assets to pay the 
proffered wage, including the ending balance of $4,350.60 listed on the bank statement for October 2001, 
bringing the total available for paying the proffered wage to $59,713.60. 
At the outset, we note that counsel has not explained why the petitioner and the employer in the approved 
ETA 750 
 the same. The record contains no evidence that the petitioner qualifies as a successor-in- 
interest to 
m 
his status requires documentary evidence that the petitioner has assumed all of the rights, 
duties, an o  gati ions of the predecessor company. The fact that the petitioner is doing business at the same 
location as the predecessor does not establish that the petitioner is a successor-in-interest. In addition, in order 
to maintain the original priority date, a successor-in-interest must demonstrate that the predecessor had the 
ability to pay the proffered wage. 
Moreover, the petitioner must establish the financial ability of the predecessor enterprise to have paid the 
certified wage at the priority date. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 
etition, the record of proceedings contains the federal income returns of 
 and the 
W-2s issued 
 but no financial information concernin Even though the record of 
proceedings does not establish th 
 ccessorship in interest of the petitioner, we will review the evidence 
before us to see if it demonstrates 
 ability to pay the proffered wage. 
In determininl ability to pay the proffered wage during a given period, Citizenship and Immigration 
Services (CIS) will first examine whether 
 employed and paid the beneficiary during that period. If 
establishes by documentary evidence that it employed the beneficia 
 at a salary equal to or greater than 
the proffered wage, the evidence will be considered prima facie proof of 
 ability to pay the proffered 
wage. In t ant case, 
 established that it employed and paid the beneficiary $19,125.03 in 2001. 
Therefore, 
 has not established that it employed and paid the beneficia 
 the full proffered wage of 
$26,000 during the period from the priority date to the present. Instead, aid partial wages in 2001, 
which is $6,874.97 less than the proffered wage in 2001.i~ obligated to demonstrate that it cdhld pay 
the difference between the wages actually paid to the beneficiary and the proffered wage. 
I does not establish that it employed and paid the beneficiary an amount at 1 
m 
ual to the proffered 
wage during that period, CIS will next examine the net income figure reflected on 
 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. 
EAC 04 061 50972 
Page 4 
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, 7 19 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, 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, which counsel now makes, that the Service should have considered income before expenses were 
paid rather than net income. 
 reject counsel's assertion, that depreciation should be added 
back to net income in determining 
 ability to pay the proffered wage. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend 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 incomeJigures 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 tax returns demonstrate the following financial information concerning 
 ability to pay the 
proffered wage of $26,000 per year from the priority date. 
In its fiscal year beginning in the year 2000, the Form 1120s stated net income3 of -$18,337. 
In its fiscal year beginning in the year 2001, the Form 1120s stated net income of -$23,598. 
Therefore, for the petitioner's fiscal years beginning in 2000 and 2001,did not have sufficient net 
income to pay the $6,874.97 difference between the wages actually paid to the beneficiary and the proffered 
wage. 
If the net income demonstrates it had available during that period, if any, added to the wages paid to the 
beneficiary during the period, if any, do not equal 
 the proffered wage or more, CIS will review 
assets. We reject, however, the idea that 
 assets should have been considered in the 
of the ability to pay the proffered wage. 
 total assets include depreciable assets that 
ses in its business. Those depreciable assets will not be converted to cash during the 
of business and will not, therefore, become funds available to pay the proffered wage. Further, 
 total 
assets, which counsel asserts includes paid-in additional capital and capital stock, must be balance 
liabilities. Otherwise, they cannot properly be considered in the determination of 
 ability to pay the 
proffered wage. Rather, 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 
 current assets and current liabilitie~.~ A corporation's 
year-end current assets are shown on Schedule 
 1 through 6. Its year-end current liabilities are shown 
3 
 Ordinary income (loss) from trade or business activities as reported on Line 2 1. 
4~ccording to Barron Is Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items having (in 
EAC 04 061 50972 
Page 5 
on lines 16 through 18. If the total of a corporation's end-of-year net 
 t assets and the wages paid to the 
beneficiary (if any) are equal to or greater than the proffered wage, Mi' is expected to be able to pay the 
proffered wage using those net current assets. s net current assets during its fiscal year beginning in the 
year 2000, was -$12,405, and during its fiscal year beginning in the year 200 1, -$11,049. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
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 asserts in his brief accompanying the appeal that there is another way to determine s ability to 
pay the proffered wage from the priority date. Counsel states that its bank statements show a closing balance 
bf $4,356.60 for the first month of it 
 year beginning in 200 1. 
Counsel's reliance on the balance in 
 s bank account is misplaced. First, bank statements are not among 
the three types of evidence, enumerated in 8 C.F.R. tj 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 will be considered below in 
determining the petitioner's net current assets. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner, which do not demonstrate that the petitioner or its predecessor could 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 evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. Nor does the record demonstrate that 
in-interest to the corporation that filed the ETA 750. 
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. 
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.