dismissed EB-3 Case: Fine Art Framing

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3000 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
66 
FILE: 
 EAC 04 162 5 1 190 
 Office: VERMONT SERVICE CENTER 
 Date: SEP 2 5 2w 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
9 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(3) 
ON BEHALF OF PETITIONER: 
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 04 162 51 190 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a gallery. It seeks to employ the beneficiary permanently in the United States as a custom 
fine art framer. As required by statute, the petition is accompanied by a Form ETA 750, Application for 
Alien Employment Certification, approved by the U. S. Department of Labor. 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. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The regulation at 8 C.F.R. 3 204.5(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 regulation at 8 CFR 4 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled workers, professionals, or 
other workers must be supported by letters from trainers or employers gving the name, address, 
and title of the trainer or employer, and a description of the training received or the experience of 
the alien. 
The petitioner must demonstrate the continuing ability to pay the proffered wage begnning 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. 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. Comm. 1977). 
Here, the Form ETA 750 was accepted on April 25, 2001. The proffered wage as stated on the Form ETA 
750 is $25,000.00 per year. The Form ETA 750 states that the position requires three months of training. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; and, copies of 
documentation concerning the beneficiary's qualifications as well as other documentation. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
EAC 04 162 51190 
Page 3 
C.F.R. $ 204.5(g)(2), the director requested on August 27, 2004, pertinent evidence of the petitioner's ability to 
pay the proffered wage beginning on the priority date. 
The director requested evidence in the form of copies of annual reports, U.S. federal tax returns with signatures 
and dates, and audited financial statements for 2001 and 2003. The director requested that the petitioner provide 
copies of the beneficiary's W-2 Wage and Tax Statements. 
In response to the request for evidence, counsel submitted copies of the following documents: the beneficiary's 
the petitioner's U.S. Internal Revenue Service (IRS) Form 1120s tax returns for the year 2001. 
The director denied the petition on December 6, 2004, finding that the evidence submitted 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 director failed to "look at the employer's business by the whole picture." 
Counsel then calculates the petitioner's ability to pay as more fully set forth below. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and 
Immigration Services (CIS) will first 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. No evidence was submitted to show that the petitioner 
employed the beneficiary. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will examine the net 
income figure reflected on the petitioner's 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. 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, 719 F.Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. 
v. Sava, 623 F.Supp. 1080 (S.D.N.Y. 1985); Ubedu v. Palmer, 539 F.Supp. 647 (N.D. Ill. 1982), affd, 703 
F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered income before expenses were paid rather than net income. Finally, no precedent exists that would 
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang 
v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054. 
The tax return demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $25,000.00 per year fi-om the priority date of April 25, 2001: 
In 2001, the Form 1120s stated taxable income of $2,756.00. ' 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage in year 2001 for which the petitioner's tax return is offered for evidence. 
' IRS Form 1 120S, Line 2 1. 
EAC 04 162 51190 
Page 4 
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 the petitioner's current assets and current liabilities.' A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120s federal tax return. The petitioner's year-end 
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage. 
Examining the Form 1120s U.S. Income Tax Return submitted by the petitioner, Schedule L found in that 
return indicates the following: 
In 2001, petitioner's Form 1120s return stated current assets of $46,230.00 and 
$95,254.00 in current liabilities. Therefore, the petitioner had <$49,024.00>~ in 
net current assets. Since the proffered wage is, this sum is less than the proffered 
wage. 
Counsel contends that in 2001 the petitioner had current assets of $68,230.00. Counsel derived this figure by 
adding inventories stated to be $46,230.00 and a deposit of $22,000~ (tax return line items 3 and 14 on 
Schedule L of the tax return). Neither of these items is a current assets. 
The value of inventories owned by the petitioner and their ability to produce future income cannot be 
evidence of the ability to pay. Insofar as the revenue generated by the sale or use of the inventories is 
expressed ultimately on the tax returns as taxable income, counsel is attempting to duplicate the petitioner's 
income producing potential without considering the offsetting cost of operations. The petitioner's total assets 
must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in the 
determination of the petitioner's ability to pay the proffered wage. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner had not established that it had the ability to pay the beneficiary the proffered wage at the time of 
filing through an examination of its net current assets. Counsel asserts that security deposits included on the 
return are current assets but as noted above they are not current assets. 
Counsel asserts in his statement accompanying the appeal that there are other ways to determine the 
petitioner's ability to pay the proffered wage from the priority date. According to regulatioq5 copies of 
annual reports, federal tax returns, or audited financial statements are the means by which petitioner's ability 
to pay is determined. 
2 
 According to Barron 's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items 
having (in 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 11 8. 
The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
4 
 This is a security deposit, and as such, cannot be accessed while current assets generally can be readily 
accessed to provide funds to the petitioner. 
8 C.F.R. 5 204.5(8)(2). 
EAC 04 162 51190 
Page 5 
Counsel asserts that the director failed to "look at the employer's business by the whole picture." There is 
insufficient income and financial data to determine in the totality of all the evidence submitted in this case, 
that the petitioner has the ability at least according to one case precedent. Matter of Sonegawa, 12 I&N Dec. 
612 (BIA 1967), relates to petitions filed during uncharacteristically unprofitable or difficult years but only in 
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. 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 that the petitioner's prospects for a 
resumption of successful 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 
couturiere. 
Unusual and unique circumstances have not been shown to exist in this case to parallel those in Sonegawa, to 
establish that the period examined was an uncharacteristically unprofitable period for the petitioner. 
Petitioner's counsel advocates the addition of deductions taken in the year 2001 tax return to increase the 
taxable income. This method would eliminate deductions as a factor in the calculation of taxable income. 
Counsel states that most of the deductions such as compensation to officers, salaries and wages, repairs and 
maintenance, and the like are discretionary expenses that may be considered as assets. We disagree. Counsel 
offers no support in case precedent or regulation for such a contention. The unsupported statements of 
counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS 
v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the corporate tax return as 
submitted by petitioner that shows that the petitioner has not demonstrated its ability to 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 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.