dismissed EB-3 Case: Furniture Retail

idlentifli#ng data deleted ta 
prevent clearly unwmted 
invasion of pemnal privacy 
U.S. Department of Ilorneland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
FILE: EAC-04-04 1-5 10 17 Office: VERMONT SERVICE CENTER Date: HAY 0 9 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. $j 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, Chief 
Administrative Appeals Office 
EAC-04-04 1-5 10 17 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center. The subsequent appeal was rejected as untimely filed and the director declined to treat the late 
appeal as a motion. The matter is now before the AAO on an appeal. The appeal will be dismissed. 
The petitioner is a furniture retail store. It seeks to employ the beneficiary permanently in the United States 
as a warehouse supervisor. 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. 
Counsel filed an appeal, however, the director determined the appeal was filed untimely and also declined to 
treat the late appeal as a motion because it did not meet the requirements for a motion to reopen or reconsider. 
Counsel filed another appeal from the rejection of the motion asserting that if the 33rd day falls on a weekend 
or holiday the deadline should be postponed automatically. A review shows that the 33rd day from the denial 
fell on Sunday followed by a holiday. The AAO concurs with counsel's assertion and accepts the appeal as 
timely filed. 
On the instant appeal counsel submits a brief statement and additional evidence that the previous appeal was 
not filed untimely.' 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153@)(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. fj 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 
5 204.5(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 
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. $ 103.2(a)(l). The record in the instant case 
indicates that counsel does not submit additional evidence pertinent to the petitioner's ability to pay the 
proffered wage. The AAO will evaluate the decision of the director, based on the evidence submitted prior to the 
director's decision. 
EAC-04-04 1 -5 10 17 
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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 30, 2001. The proffered wage as stated on the Form ETA 
750 is $15.50 per hour ($32,240 per year). The Form ETA 750 states that the position requires 2 years 
experience either in the job offered or in furniture retail and maintenance. 
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 1997, to have a gross annual income of $421,838, 
and to currently employ 5 workers. According to the tax returns in the record, the petitioner's fiscal year lasts 
from May 1 to April 30. On the Form ETA 750B, signed by the beneficiary on April 28, 2001, the 
beneficiary claimed to have worked for the petitioner since October 2000. 
With the petition, the petitioner submitted the following documents pertinent the petitioner's ability to pay the 
proffered wage: financial statements for the year ended April 30, 2001, and Form 1120 US Corporation 
Income Tax Return for the fiscal year May 1,2001 to April 30,2002. 
The director denied the petition on August 4, 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 has the ability to pay the salary. 
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. However, in the instant case, the petitioner did not submit any 
evidence showing that the petitioner paid the beneficiary any compensation from the priority date to the 
present. Therefore, the petitioner has not established that it employed and paid the beneficiary the full 
proffered wage during the period from the priority date. 
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, 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); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
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 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 
EAC-04-04 1-5 10 17 
Page 4 
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 figures 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 return demonstrates the following financial information concerning the petitioner's ability to pay the 
proffered wage of $32,240 per year from the priority date. 
In 2001, the Form 1120 stated net income2 of $(109,469). 
Therefore, for the fiscal year 2001 (May 1, 2001 to April 30, 2002), the petitioner did not have sufficient net 
income to pay the proffered wage paid and 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. 
Net current assets are the difference between the petitioner's current assets and current liabilities3 
 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 net current 
assets during the fiscal year 2001, were $(187,205). 
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. 
2 
 Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
3 
 According to Barron 's Dictionary of Accounting Terms 11 7 (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. 
EAC-04-04 1 -5 10 1 7 
Page 5 
Counsel submitted the petitioner's financial statements for the year ended April 30, 2001. The regulation at 8 
C.F.R. 9 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its 
ability to pay the proffered wage, those financial statements must be audited. An audit is conducted in 
accordance with generally accepted auditing standards to obtain a reasonable assurance whether the financial 
statements of the business are free of material misstatements. The unaudited financial statements that counsel 
submitted with the petition are not persuasive evidence. The accountant's report that accompanied those 
financial statements makes clear that they were produced pursuant to a compilation rather than an audit. A 
compilation is the management's representation of its financial position and is the lowest level of financial 
statements relative to other forms of financial statements. As the accountant's report also makes clear, 
financial statements produced pursuant to a compilation are the representations of management compiled into 
standard form. The unsupported representations of management are not reliable evidence and are insufficient 
to demonstrate the ability to pay the proffered wage. Therefore, the petitioner's financial statements for that 
fiscal year are not dispositive. 
The record of proceeding does not contain any regulatory-prescribed evidence pertaining to the petitioner's 
ability to pay the proffered wage for its fiscal year running from May 1, 2000 through April 3 1, 2001, which 
would cover its priority date of April 30, 2001. The petitioner must demonstrate its ability to pay from the 
priority date. 
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. 
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. 
9 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.