dismissed EB-3 Case: Electrical Contracting

1den-g data deleted to 
prevent cleariy unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. 3 1 153(b)(3) 
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 
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 an electrical contractor. It seeks to employ the beneficiary permanently in the United States 
as an electrician. 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. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 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. $ 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 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. $ 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 $32.75 per hour, which 
amounts to $68,120.00 annually. On the Form ETA 750B, signed by the beneficiary on April 19, 2001, the 
beneficiary claimed to have worked for the petitioner beginning in November 1999 and continuing through 
the date of the ETA 750B. The ETA 750 was certified by the Department of Labor on December 22,2003. 
The 1-140 petition was submitted on April 21, 2004. On the petition, the petitioner claimed to have been 
established in February 1985, to have a gross annual income of $531,000.00, and to have a net annual income 
of $7,000.00. With the petition, the petitioner submitted supporting evidence. 
In a decision dated September 8, 2004, the director determined that the evidence did not establish that the 
petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence, and denied the petition. 
On appeal, counsel submits a brief. According to the Form I-290B, "[aldditional evidence is being submitted 
in the form of available credit throughout the relevant period." However, no additional evidence appear in the 
record. 
Counsel states on appeal that the examiner did not request additional evidence, the petitioner's bank statements 
establish its ability to pay the proffered wage in 2001 and 2002, and the period in question is April 2001 through 
December 2002. 
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. 5 204.5(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 19,2001, the beneficiary claimed to have 
worked for the petitioner beginning in November 1999 and continuing through the date of the ETA 750B. 
The record contains copies of Form W-2 Wage and Tax Statements of the beneficiary. The beneficiary's Form 
W-2's for 2001, 2002, and 2003 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 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002. and 2003. 
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 Corp. 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), afd., 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. Finally, 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 Colp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is an S corporation. The record contains copies of the petitioner's Form 
1120s U.S. Income Tax Return for an S Corporation for 2001 and 2002. The record before the director closed on 
April 21,2004 with the receipt by the director of the petitioner's submission of the 1-140 petition. As of that date 
the petitioner's federal tax return for 2004 was not yet due. However, the petitioner's federal tax return for 2003 
would have been due before April 21, 2004. Therefore the petitioner's tax return for 2003 is the most recent 
return available. The petitioner's 1120s U.S. Income Tax Return for an S Corporation for 2003 does not appear 
in the record. 
For an S corporation, CIS considers net income to be the figure shown on line 21, ordinary income, of the Form 
1120s U.S. Income Tax Return for an S Corporation. The petitioner's tax returns show the amounts for ordinary 
income on line 21 as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
200 1 $3,33 1 .OO $45,640.00" -$42,309.00 
2002 -$14,454.00 $4 1,076.00" -$55,530.00 
2003 No Information $36,849.00" No Information 
* 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 2001, 
2002, and 2003. 
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 net 
current assets as shown in the following table. 
Page 5 
Tax Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
200 1 $4,047.00 $45,640.00" 
2002 $2,262.00 $41,076.00" 
2003 No Information $36,849.00* 
* 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 2001, 
2002. and 2003. 
Counsel states that "the examiner did not find it appropriate to request additional evidence, as permitted by 8 
C.F.R. §204.5(g)(2). Rather, the examiner relied on the information provided with the original filing of the I- 
140 petition." The regulation at 8 C.F.R. $ 204.5(g)(2) states that the director may request additional evidence in 
appropriate cases. Hence, the director may, but is not required to, request additional evidence. In any event, the 
notice of appeal issued to the petitioner sufficiently overcomes any harm that resulted from the director not 
requesting additional evidence because the petitioner can file an appeal and submit additional evidence on appeal. 
The petitioner had the opportunity to submit additional evidence on appeal, and the record indicates that no 
evidence was submitted on appeal. 
Counsel also states that based on the petitioner's monthly bank statements from 2001 to 2002, "[tlhe month-end 
balances for petitioner exceeded the monthly [wage] shortfall in each and every month." The record contains 
copies of the petitioner's bank statements. However, bank statements are not among the three types of evidence 
listed in 8 C.F.R. $ 204.5(g)(2) as acceptable evidence to establish a petitioner's ability to pay a proffered wage. 
While that 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. Moreover, bank statements show the amount in an account on a 
given date, and cannot show the sustainable ability to pay a proffered wage. Funds used to pay the proffered 
wage in one month would reduce the monthly ending balance in each succeeding month. In the instant case, the 
ending balances do not show monthly increases by amounts which would be sufficient to pay the proffered wage. 
Finally, no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements 
show additional available funds that are not reflected on its tax returns, such as the cash specified on Schedule L 
that is considered in determining a corporate petitioner's net current assets. 
In addition, counsel asserts that according to a memo by William R. Yates dated May 4,2004, "the evidence must 
clearly establish the petitioner's financial ability . . . [and] each piece of evidence must conclusively show 
financial ability." He states that in this case, "[elach piece of evidence (in the form of each month-end balance in 
petitioner's bank account for the entire period in question, namely April of 2001 through December of 2002) 
conclusively shows the petitioner's financial ability to pay the [proffered] wage." As mentioned above, bank 
statements cannot show the petitioner's financial ability to pay the proffered wage. Moreover, counsel incorrectly 
states that the period in question is from April 2001 through December 2002.' According to 8 C.F.R. 
5 204.5(g)(2), the period in question begins with the priority date, which is April 7, 2001, and continues until the 
I 
 Counsel states that the period in question begins with April 2001, "which is the date of filing of the Application for 
Alien Labor Certification." Counsel, however, does not explain why the period in question ends at the end of December 
2002. 
Page 6 
beneficiary obtains lawful permanent residence. 
 Therefore, the date the record before the director closed, 
September 8, 2004, is the end date for the period in question, and the petitioner has to establish its ability to pay 
the proffered wage in 2003. Aside from the beneficiary's Form W-2 Wage and Tax Statement for 2003, which 
shows that the petitioner was paid less than the proffered wage, no other evidence was submitted to show the 
petitioner's ability to pay the proffered wage in 2003. 
After a review of the record, 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. 
In her decision, the director correctly stated the petitioner's net income in 2001 and 2002, correctly calculated 
the petitioner's year-end net current assets for each of those years, and correctly noted that the petitioner's 
income tax return for 2003 was not submitted. The director found that the available information failed to 
establish the petitioner's ability to pay the proffered wage in those years. 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 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.