dismissed EB-3 Case: Fashion Manufacturing

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. 3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
86 
File: EAC-03-205-50223 Office: VERMONT SERVICE CENTER Date: SEP 0 7 2006 
In re: Petitioner: 
Beneficiary: 
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. 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 
EAC-03-205-50223 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a manufacturer of ladies sportswear and seeks to employ the beneficiary permanently in the 
United States as a sample stitcher ("samplemaker"). As required by statute, the petition filed was submitted 
with Form ETA 750, Application for Alien Employment Certification, approved by the Department of Labor 
(DOL). As set forth in the director's February 16, 2005, denial of the petitioner's motion to reopen, the case 
was denied based on the petitioner's failure to demonstrate its ability to pay the proffered labor certification 
wage from the priority date until the beneficiary obtained permanent residence. 
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 evidence in the record, including new evidence properly submitted upon appeal.' 
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. 
The petitioner has filed to obtain permanent residence and classify the beneficiary as a skilled worker. 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 nature, for which qualified workers are not available in the United States. 
The petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 CFR fj 204.5(d). Therefore, 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. fj 204.5(g)(2). 
The regulation 8 C.F.R. 5 204.5(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. 
I 
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. tj 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-03-205-50223 
Page 3 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 27, 
2001. The proffered wage as stated on Form ETA 750 for the position of a sample stitcher is $13.66 per hour, 
35 hours per week, which is equivalent to $24,861.20 per year. The labor certification was approved on 
December 30, 2002, and the petitioner filed the 1-140 on the beneficiary's behalf on July 2, 2003. On the I- 
140, counsel listed the following information related the petitioning entity: established: September 18, 1997; 
gross annual income: $629,944; net annual income: $7,712; and current number of employees: 5; wages per 
week: $460.60.~ 
The case was initially denied on August 3 1, 2004, based on the petitioner's inability to demonstrate that it 
could pay the proffered wage from the priority date until the beneficiary obtains lawful permanent residence. 
The petitioner filed a motion to reopen, which was then denied on February 16, 2005, for failing to overcome 
the reason for denial. The petitioner then appealed to the AAO. We will examine the petitioner's ability to 
pay based on standards enumerated and then consider the petitioner's additional arguments. 
First, in determining the petitioner's ability to pay the proffered wage during a given period, Citizenship & 
Immigration Services (CIS) will 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 case at hand, on Form ETA 750B, signed by the beneficiary, the beneficiary has listed that she has been 
employed with the petitioner since November 1998 as a samplemaker. The record, however, contains no 
evidence of wage payment. In a Request for Additional Evidence ("RFE"), the service center had requested 
that the petitioner supply the beneficiary's W-2 statements, or forms 1099 for the years 2001 through 2003. 
In the petitioner's response to the RFE, counsel contends, "we submit the real issue is not how much 
petitioner actually paid her, but whether petitioner can and is able to pay the proffered wage." While 
counsel's statement regarding the beneficiary's pay is true, prior wage payments exhibited by W-2 statements 
would demonstrate the petitioner's ability to pay the proffered wage. However, since the petitioner has 
submitted no evidence of prior wage payment to the beneficiary, we cannot consider prior wages paid. 
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. 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 (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. Suva, 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. 
We note that the wage listed on the 1-140 Petition is incorrect. Based on the wage rate on the certified labor 
certification, the weekly wage for 35 hours per week at $1 3.66 per hour, would be $478.10. The petitioner 
would need to pay this amount to the beneficiary on a weekly basis. 
EAC-03-205-50223 
Page 4 
The petitioner's business was formed as a limited liability company (LLC). As an LLC, the petitioner would file, 
and has submitted, Forms 1065, U.S. Return of Partnership Information for the years 2002, and 2003.~ Where a 
partnership's income is exclusively from a trade or business, the net income figure equates to ordinary income, on 
page one, line 22 of the petitioner's Form 1065. The tax returns demonstrate the following financial 
information concerning the petitioner's ability to pay the proffered wage of $24,861 per year from the priority 
date. 
Tax Year 
2003 
Net income or (loss) 
-$31,182 
-$12,674 
not submitted 
The petitioner's net income would not allow for payment of the beneficiary's proffered wage in either of the 
years above. 
As an alternate 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 current assets less current liabilities. Current assets 
include cash on hand, inventories, and receivables expected to be converted to cash within one year. A 
partnership's year-end current assets are shown on Schedule L, lines l(d) through 6(d). Its year-end current 
liabilities are shown on lines 15(d) through 17(d). If a partnership'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 would be converted to cash as the proffered wage becomes due. The 
petitioner's federal tax returns demonstrate the following in net current assets: 
Tax Year Net current assets 
2003 $9,389 
2002 $86,660 
Following this second analysis, the petitioner's federal tax returns show that the petitioner could pay the 
beneficiary the proffered wage in the year 2002, but not 2003. However, the petitioner has not established 
consistently in any of the three foregoing methods, the ability to pay the beneficiary the proffered wage from 
the time of the priority date until the beneficiary obtains permanent residence. 
On appeal, counsel has submitted information related to the petitioning owner's assets, including an affidavit 
stating that the owner holds property worth $782,680 in New Jersey and a second home in Florida, which is 
valued at $223,132. Counsel asserts that these assets should be considered in determining the petitioner's 
ability to pay the proffered wage. The petitioner is an LLC. Although structured and taxed as a partnership, 
the owners in an LLC enjoy limited liability similar to owners of a corporation. An LLC, like a corporation is 
a legal entity separate and distinct from its owners. The owners are generally not liable for the company debts 
and ~bli~ations.~ An investor's liability is limited to his or her initial investment. As the owners and others 
are only liable to his or her initial investment, the owner's total income and assets cannot be utilized to 
demonstrate the petitioner's ability to pay the proffered wage. The petitioner must show the ability to pay the 
proffered wage from the funds of the LLC. 
3 
 The record also contains the 2001 Schedule K-1, Partner's Share of Income, Credits, Deductions, but not the 
full 2001 U.S. Return of Partnership Income for the petitioner. 
Although this general rule might be amenable to alteration pursuant to contract or otherwise, no evidence 
appears in the record to indicate that the general rule is inapplicable in the instant case. 
EAC-03-205-50223 
Page 5 
Counsel cites to the case of Matter of Ranchito Coletero, 2002-INA-105 (BALCA Jan. 8, 2004), and asserts that 
Matter of Ranchito Coletero case should be applicable in the case at hand. First, we note that while 8 C.F.R. $ 
103.3(c) provides that precedent decisions of CIS are binding on all its employees in the administration of the 
Act, BALCA decisions are not similarly binding. Second, the Matter of Rachito Coletero, is not applicable to the 
current case. In Matter of Ranchito Coletero, BALCA considered whether the "individual assets of the principals 
may be considered when the employer is a sole proprietorship." (Emphasis added). BALCA found that 
consideration of individual assets would be appropriate in the case of a sole proprietorship. Similarly, we note 
that CIS would consider these assets, if the petitioner were structured as a sole proprietorship.5 However, in the 
case of an LLC, or corporation, CIS may not "pierce the corporate veil" and look to the assets of the owner to 
satisfy the petitioner's ability to pay the proffered wage. Therefore, while the petitioner's owner may have 
substantial individual assets, those assets are not relevant in the case at hand. Assets of the LLC's 
shareholders (or of other enterprises or corporations) cannot be considered in determining the petitioner's 
ability to pay the proffered wage. 
Additionally, counsel contends that "CIS has erred in failing to address the issue of whether ongoing bank 
balances substantially in excess of the proffered wage is proof of ability to pay the proffered wage." Further, 
counsel submits that the "AAO should make a definitive ruling on said issue with an explanation of the 
rationale therefore." In support, counsel has submitted the petitioner's bank statements for each month for the 
calendar years 2001,2002,2003, and for the months January 2004 through May 2004. Counsel contends that 
the statements demonstrate that the petitioner had enough money in the bank to pay the beneficiary's 
proffered wage on a monthly basis. 
To address the issue of bank statements definitively, bank statements are not among the three types of evidence 
listed in 8 C.F.R. $ 204.5(g)(2) as acceptable to establish a petitioner's ability to pay a proffered wage. This 
regulation allows for consideration of additional material "in appropriate cases." Counsel has asserted that "C.I.S. 
has sidestepped addressing the issued [sic] posited therein: Does an employer have the ability to pay a gven wage 
when its funds in the bank, even after deducting said wage, are on the plus side?" 
We caution that a petitioner must demonstrate why the documentation specified at 8 C.F.R. $ 204..5(g)(2) is 
inapplicable or otherwise does not provide an accurate financial picture of the petitioner. Further, no evidence 
was submitted to demonstrate that the funds reported on the petitioner's bank statements reflect additional 
available funds to the amounts listed on the petitioner's tax return, such as the cash specified on Schedule L, 
which would already be considered in determining the petitioner's net current assets. As a fundamental point, the 
petitioner's tax returns are a better reflection of the company's financial picture, since tax returns address the 
question of liabilities. Bank statements do not reflect whether the petitioner has any outstanding liabilities. 
5 
 A sole proprietorship, unlike a corporation, does not exist as an entity apart from the individual owner. See 
Matter of United Investment Group, 19 I&N Dec. 248, 250 (Comm. 1984). Accordingly, a sole proprietor's 
adjusted gross income, assets and personal liabilities are also considered as part of the petitioner's ability to 
pay. Sole proprietors report income and expenses from their businesses on their individual (Form 1040) 
federal tax return each year. The business-related income and expenses are reported on Schedule C and are 
carried forward to the first page of the tax return. Sole proprietors must show that they can cover their 
existing business expenses as well as pay the proffered wage out of their adjusted gross income or other 
available funds. In addition, sole proprietors must show that they can sustain themselves and their 
dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7'h Cir. 1983). 
EAC-03-205-50223 
Page 6 
Based on the foregoing, we find that the petitioner has failed to document that it can pay the beneficiary the 
proffered wage from the priority date until the beneficiary obtains permanent residence. The petition cannot 
demonstrate this ability through: (1) prior wage payment; (2) positive net income; or (3) sufficient net current 
assets in the amount of the proffered wage. Accordingly, the petition was properly denied. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.