dismissed EB-3 Case: Furniture Restoration

iden- date deleted to 
prevent dearly unwammW 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
 BL 
FILE: Date: MY 2 3 2006 
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. 8 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. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a furniture restoration company. It seeks to employ the beneficiary permanently in the 
United States as a furniture finisher. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the 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. 
On appeal, counsel submits a brief and additional evidence.' 
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 nature, for which qualified workers are not available in the United 
States. 
The regulation 8 C.F.R. $ 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 
6 204.5(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. 
Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $19.45 per hour ($40,456 per year2). The Form ETA 750 states that the position requires four (4) years 
experience in the job offered. 
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. 4 103.2(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). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
Page 3 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the 
petition, the petitioner claimed to have been established in 1994, to have a gross annual income of $430,000, 
to have a net annual income of $60,000, and to currently employ 6 workers. According to the tax returns in 
the record, the petitioner's fiscal year is based calendar year. On the Form ETA 7508, signed by the 
beneficiary on April 7,2001, the beneficiary did not claim to have worked for the petitioner. 
The petition was filed on March 19, 2004 without any supporting documents concerning the petitioner's 
ability to pay the proffered wage. Therefore, on April 27, 2004, the director issued a request for additional 
evidence (WE) pertinent to that ability. The director specifically requested the petitioner submit its 2001 
United States federal income tax return, with all schedules and attachments and submit accredited profit/loss 
statements, bank account records, or personnel records for 2001. 
In response, the petitioner submitted its Form 1120 U.S. Corporation Income Tax Return for 2001 with all 
schedules and attachments. 
The director denied the petition on November 19, 2004, finding that the evidence submitted with the petition 
and in response to the RFE 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 denied the petition based on an incorrect calculation and 
interpretation of the petitioner's income and net current assets, and that the beneficiary works for the 
petitioner which proves its ability to pay the proffered wage. 
In determining the petitioner's ability to pay the proffered wage during a given period, 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. In the instant case, the petitioner did not claim that it employed 
and paid the beneficiary in 2001, the year of the priority date, and thereafter except for submitting copies of 
two paychecks issued by the petitioner on December 17 and 22, 2004 paying the beneficiary $602.59 weekly. 
Therefore, the petitioner did not establish that it employed and paid the beneficiary the full proffered wage 
during the period from the priority date through 2003. 
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, 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, 71 9 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). 
On appeal counsel claims that the petitioner's payroll in the year 2001 amounted to $132,138 instead of 
$61,538 adding the compensation of officers and salaries and wages paid on Line 12 and Line 13 together. 
2 
 Based on working 40 hours per week and 52 weeks per year. The petitioner incorrectly calculated the 
annual proffered salary as $38,900. 
The submitted letter from a CPA also states that compensation paid for the year ended 2001 amounted to 
$1 32,138 as listed on lines 12 and 13 Form 1 120. Reliance on the petitioner's gross receipts and wage 
expense is misplaced. Showing that the petitioner's gross receipts exceeded the proffered wage is 
insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient. 
In general, wages already paid to others are not available to prove the ability to pay the wage proffered to the 
beneficiary at the priority date of the petition and continuing to the present. 
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 that the Service should have considered income before expenses were paid rather than net income. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the 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 
income Jigures 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 record of proceeding contains the petitioner's tax return for 2001. The tax return demonstrates the 
following financial information concerning the petitioner's ability to pay the proffered wage of $40,456 per 
year from the priority date. 
In 2001, the Form 1120 stated net income3 of $8,791. 
While the director erred in taking the figure from Line 31 and counsel referenced the net income correctly 
from line 28 of Form 1120, for the year 2001, the petitioner did not have sufficient net income (with $8,791) 
to pay the proffered wage. 
If the net income the petitioner 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 amount of the proffered wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, 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. Rather, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. 
3 
 Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
Page 5 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net current assets and 
the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. The petitioner's current assets 
during the year 2001 were $70,082, and the current liabilities were $70,758, therefore, the net current assets 
were $(676). The petitioner had insufficient net current assets to pay the beneficiary the proffered wage in 
2001. 
On appeal counsel and the CPA claims that the petitioner's current liabilities of $70,758 includes $35,417 for 
credit card debts, which are typically payable over a three-five year period. Therefore, the petitioner's net 
current assets should be $22,936 or $27,658 for 2001. The CPA's letter did not submit any documents to 
support his assertion. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, even if the CPA's assertion were supported with objective evidence, the petitioner's net current 
assets of $22,936 or $27,658 in 2001 still would not be sufficient to pay the proffered wage of $40,456 per 
year. 
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 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. 
On appeal, counsel asserts that since the beneficiary works for the petitioner and the petitioner pays the 
beneficiary at the proffered wage rate presently, it has established its continuing ability to pay the proffered 
wage beginning on the priority date. Counsel's assertion does not comport with the plain language of the 
regulation at 8 C.F.R. $ 204.5(g)(2). The regulation requires that a petitioning entity demonstrate its 
continuing ability to pay the proffered wage beginning on the priority date. The petitioner must 
demonstrate its continuing ability to pay the proffered wage beginning on the priority date, which in this case 
is April 30, 2001. Thus, the petitioner must show its ability to pay the proffered wage not only in 2004, when 
counsel claims the petitioner actually began paying the proffered wage rate, but it must also show its 
continuing ability to pay the proffered wage in 2001 through 2003. Demonstrating that the petitioner is 
paying the proffered wage in a specific year may suffice to show the petitioner's ability to pay for that year, 
but the petitioner must still demonstrate its ability to pay for the rest of the pertinent period of time. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not 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. 
4 
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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
Page 6 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.