dismissed EB-3 Case: Garment Manufacturing

Identifyingdatadeletedto
preventclearlyunwarranted
invasionofpersonalprivacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
INRE:
WAC 03 131 54459
Petitioner:
Beneficia
Office: CALIFORNIA SERVICE CENTER Date: OCT 2 4 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. § ll53(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
www.uscis.gov
WAC 03 131 54459
Page 2
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a garment manufacturer. It seeks to employ the beneficiary permanently in the United States
as a branch manager. As required by statute, the petition is accompanied by a Form ETA 750, Application for
Alien Employment Certification, approved by the United States Department of Labor (DOL). The director
determined that the petitioner had not established that it is a United States employer, 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 that the petitioner had not established that the beneficiary is qualified to
perform the duties of the proffered position with three years of qualifying employment experience. The
director denied the petition accordingly.'
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.
As set forth in the director's January 13, 2005 denial, the three issues in this case are whether or not the
petitioner is a United States employer, whether or not the petitioner has the ability to pay the proffered wage
as of the priority date and continuing until the beneficiary obtains lawful permanent residence, and whether or
not the beneficiary is qualified to perform the duties of the proffered position.
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 director first determined that the petitioner had not established that it is a United States employer. The
regulation 8 C.F.R. § 204.5(c) states that "[a]ny United States employer desiring and intending to employ an
alien may file a petition for classification of the alien under section ... 203(b)(3) of the Act." In employment­
based preference visa petition proceedings, a petitioner with no location in the United States is not an
employer and, therefore, cannot offer permanent employment in the United States to an alien. Only a U.S.­
based branch office, affiliate, or subsidiary of a foreign organization may file such a petition. Matter Of A.
Dow Steam Specialities, Ltd., 19 I&N Dec. 389 (Comm. 1986).
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? On appeal,
counsel submits a letter dated February 9, 2005 from the petitioner, a letter dated February 4, 2005 from
Henry Chi, CPA, the petitioner's previously submitted Certificate of Qualification issued by the State of
California on August 19, 1996, and the petitioner's Statement and Designation by Foreign Corporation filed
I This office notes that the petitioner previously filed another 1-140 petition on behalf ofthe beneficiary. The
California Service Center denied the petition and this office dismissed a subsequent appeal.
2 The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, which
are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(l). The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988).
WAC 03 131 54459
Page 3
with the Secretary of State of the State of callM' 19, 1996. Relevant evidence in the record
includes a letter dated December 9, 2004 from the petitioner 's IRS Forms W-2, Wage and
Tax Statements, for 1998 , 1999,2000 ,2001 ,20 an 003 , t e petitioner's IRS Forms 1120-F, U.S. Income
Tax Returns for a Foreign Corporation, for 1998, 1999,2000,2001,2002 and 2003, the petitioner's IRS Form
SS-4, Application for Employer Identification Number, and the petitioner's State of California Forms DE-6,
Quarterly Wage and Withholding Reports, for 2001 and 2002 . The record does not contain any other
evidence relevant to the petitioner 's status as a United States employer.
On appeal , the petitioner asserts that the petitioner is a United States employer because it is subject to the tax
laws of the United States and it has paid taxes to the United States government. The petitioner's accountant
states that the petitioner has employed workers in the United States since 1996 , that it has paid all relevant
taxes and that it is qualified to do business in California .
The petitioner appears to be a branch office of a foreign corporation. The branch office is located in
California . The petitioner has submitted probative evidence that it operates as a branch office , including
evidence that the foreign corporation is authorized to engage in business activities in the State of California;
copies of IRS Forms l120-F, U.S. Income Tax Returns of a Foreign Corporation; copies IRS Forms W-2,
Wage and Tax Statements, listing the branch office as the employer; and copies of State of California Forms
DE-6, Quarterly Wage and Withholding Reports, listing the branch office as the employer. A U .S.-based
branch office of a foreign corporation may file a petition and, therefore, the petitioner has overcome the
portion of the director's determination that the petitioner is not a United States employer.
Next, 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 regulation 8 C.F.R.
§ 204.5(g)(2) states in pertinent part :
Ability 0/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 DOL. See 8 C.F.R. § 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 DOL and submitted with the instant
petition. Matter a/Wing' s Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
Here, the Form ETA 750 was accepted on January 9 , 1998. The proffered wage as stated on the Form ETA
750 is $5,208.12 per month ($62,497.44 per year). The Form ETA 750 states that the position requires three
years of experience in the job offered.
The AAO takes a de novo look at issues raised in the denial of this petition. See Dar 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
WAC 03 131 54459
Page 4
pertinent evidence in the record, including new evidence properly submitted upon appeal.' On appeal,
counsel submits a letter dated February 9, 2005 from the petitioner . Relevant evidence in the record includes a
the petitioner 's IRS Forms W-2 , Wage and Tax Statements, for 1998 , 1999,2000 ,2001,2002 and 2003 , the
petitioner's IRS Forms 1120-F , U.S. Income Tax Return s for a Foreign Corporation , for 1998 , 1999,2000 ,
2001,2002 and 2003, the petitioner 's bank statement s for March 2002 through February 2003 , the petitioner 's
State of California Forms DE-6, Quarterly Wage and Withholding Reports , for 2001 and 2002 , financial
statements for the foreign corporation for 2000 and 2001 and a letter dated August 14 , 2002 from Patrick
Dunn, CPA.4 The record does not contain any other evidence relevant to the petit ioner's ability to pay the
proffered wage.
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 August 1996 , to have a gros s annual income of
$198,448.00, and to currently employ two worker s. According to the tax returns in the record , the petitioner 's
fiscal year is based on a calendar year. On the Form ETA 750B , signed by the beneficiary on December 30,
1997, the benefic iary claimed to have worked for the petitioner as a branch manager from April 1997 to the
date he signed the Form ETA 750B.
On appeal, the petitioner asserts that the beneficiary has been pa id the proffered wage .
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 establ ish 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 realist ic.
See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977) . See also 8 C.F.R. § 204.5(g)(2).
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 beneficiary's IRS Forms W-2 for 1998 ,
1999, 2000, 2001, 2002 and 2003 show compensation received from the petitioner, as shown in the table
below.
• In 1998, the Form W-2 stated compensation of $44,356.65.
• In 1999 , the Form W-2 stated compensation of $45,000.00.
• In 2000 , the Form W-2 stated compensation of$45 ,000.00.5
3 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)(1). The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
ofSoriano , 19 I&N Dec. 764 (BIA 1988).
4 The record contains copies of the petitioner 's IRS Forms 1120 -F, U.S. Income Tax Returns for a Foreign
Corporation, for 1996 and 1997. Evidence preceding the priority date in 1998 is not necessarily dispositive of
the petitioner' s continuing ability to pay the proffered wage beginning on the prior~
5 This office notes that the employee name listed on the 2000 IRS Form W-2 is _ However,
the beneficiary 's social security number is listed on the Form W-2 , and the beneficiary 's 2000 indi vidual
WAC 03 131 54459
Page 5
• In 2001, the Form W-2 stated compensation of $45,000.00.
• In 2002, the Form W-2 stated compensation of $45,000.00.
• In 2003, the Form W-2 stated compensation of $45,000.00.
Therefore, contrary to the petitioner's assertion, for the years 1998, 1999, 2000, 2001, 2002 and 2003, the
petitioner has not established that it employed and paid the beneficiary the full proffered wage, but it did
establish that it paid partial wages each year. Since the proffered wage is $62,497.44 per year, the petitioner
must establish that it can pay the difference between the wages actually paid to the beneficiary and the
proffered wage, which is $18,140.79, $17,497.44, $17,497.44, $17,497.44, $17,497.44 and $17,497.44 in
1998, 1999,2000,2001,2002 and 2003, respectively.
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.CP. Food Co., Inc. v. Sava, 623 F. Supp. 1080
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. m. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983).
For corporations reporting income in IRS Form 1120-F, U.S. Income Tax Return of a Foreign Corporation,
CIS considers net income to be the figure shown on page 3, Line 29 of the Form 1120-F. The record before
the director closed on December 15, 2004 with the receipt by the director of the petitioner's submissions in
response to the director's notice of intent to deny. As of that date, the petitioner's 2003 federal income tax
return is the most recent return available. The petitioner's tax returns demonstrate its net income for 1998,
1999,2000,2001,2002 and 2003, as shown in the table below.
• In 1998, the Form 1120-F stated net income of -$83,676.00.
• In 1999, the Form l120-F stated net income of -$240,530.00.
• In 2000, the Form 1120-F stated net income of -$177,644.00.
• In 2001, the Form 1120-F stated net income of -$196,548.00.
• In 2002, the Form 1120-F stated net income of -$156,629.00.
• In 2003, the Form 1120-F stated net income of -$140,592.00.
Therefore, for the years 1998, 1999, 2000, 2001, 2002 and 2003, the petitioner did not have sufficient net
income to pay the difference between the wages actually paid to the beneficiary 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. Net current assets are the difference between the petitioner's current assets
and current liabilities." A foreign corporation's year-end current assets are shown on Schedule L, lines 1
income tax return indicates that he received $45,000.00 in income that year, which matches the income
detailed on the Form W-2. Therefore, this office will credit the beneficiary with $45,000.00 in wages from
the petitioner in 2000.
6 According to Barron's Dictionary ofAccounting 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
WAC 03 131 54459
Page 6
through 6 and include cash-on-hand. 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 tax returns demonstrate its end-of-year net current assets for 1998,
1999,2000,2001,2002 and 2003, as shown in the table below.
• In 1998, the Form 1120-F stated net current assets of$10,100.00.
• In 1999, the Form 1120-F stated net current assets of$9,147.00.
• In 2000, the Form 1120-F stated net current assets of$3,169.00.
• In 2001, the Form 1120-F stated net current assets of$943.00.
• In 2002, the Form 1120-F stated net current assets of$2,800.00.
• In 2003, the Form 1120-F stated net current assets of$16,792.00.
Therefore, for the years 1998, 1999, 2000, 2001, 2002 and 2003, the petitioner did not have sufficient net
current assets to pay the difference between the wages actually paid to the beneficiary and the proffered wage.
Thus, from the date the Form ETA 750 was accepted for processing by the DOL, 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.
The record of proceeding contains the petitioner's bank statements. Bank statements are not among the three
types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a
proffered wage. While this 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. In addition, bank statements show the amount in an
account on a given date, and cannot show the sustainable ability to pay a proffered wage. Further, no evidence
was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow reflect
additional available funds that were not reflected on its tax return, such as thepetitioner's taxable income (income
minus deductions) or the cash specified on Schedule L that was considered in determining the petitioner's net
current assets.
The record of proceeding also contains a letter of credit issued to the foreign corporation by Wachovia Bank,
National Association. In calculating the ability to pay the proffered salary, CIS will not augment the
petitioner's net income or net current assets by adding in the corporation's credit limits, bank lines, or lines of
credit. A "bank line" or "line of credit" is a bank's unenforceable commitment to make loans to a particular
borrower up to a specified maximum during a specified time period. A line of credit is not a contractual or
legal obligation on the part of the bank. See Barron's Dictionary of Finance and investment Tenns, 45
(1998).
Since a line of credit is a "commitment to loan" and not an existent loan, the petitioner has not established
that the unused funds from the line of credit are available at the time of filing the petition. As noted above, a
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the
petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm.
1971). Moreover, the petitioner's existent loans will be reflected in the balance sheet provided in the tax
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). !d. at 118.
WAC 03 131 54459
Page 7
returns or audited financial statement and will be fully considered in the evaluation of the corporation's net
current assets. Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a
cash asset. However, if the petitioner wishes to rely on a line of credit as evidence of ability to pay, the
petitioner must submit documentary evidence, such as a detailed business plan and audited cash flow
statements, to demonstrate that the line of credit will augment and not weaken its overall financial position.
Finally, CIS will give less weight to loans and debt as a means of paying salary since the debts will increase
the firm's liabilities and will not improve its overall financial position. Although lines of credit and debt are
an integral part of any business operation, CIS must evaluate the overall financial position of a petitioner to
determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy
the proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977).
Further, the record of proceeding contains the foreign corporation's financial statements for 2000 and 2001.
The regulation at 8 C.F.R. § 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. As there is no
accountant's report accompanying these statements, the AAO cannot conclude that they are audited
statements. Unaudited financial statements are the representations of management. The unsupported
representations of management are not reliable evidence and are insufficient to demonstrate the ability to pay
the proffered wage.
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 the DOL.
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered
wage beginning on the priority date.
Finally, the director also determined that the petitioner had not established that the beneficiary is qualified to
perform the duties of the proffered position with three years of qualifying employment experience. To
determine whether a beneficiary is eligible for an employment based immigrant visa, CIS must examine whether
the alien's credentials meet the requirements set forth in the labor certification. In evaluating the beneficiary's
qualifications, CIS must look to the job offer portion of the labor certification to determine the required
qualifications for the position. CIS may not ignore a term of the labor certification, nor may it impose
additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm.
1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d
1006 (9th Cir. 1983); Stewart Infra-Red Commissary ofMassachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir.
1981).
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, set
forth the minimum education, training, and experience that an applicant must have for the position of branch
manager. In the instant case, item 14 describes the requirements of the proffered position as follows:
14. Education
Grade School
High School
College
College Degree Required
Major Field of Study
C
C
o
not required
not applicable
WAC 03 131 54459
Page 8
The applicant must also have three years of experience in the job offered, the duties of which are delineated at
Item 13 of the Form ETA 750A and since this is a public record, will not be recited in this decision. Item 15 of
Form ETA 750A does not reflect any special requirements.
The beneficiary set forth his credentials on Form ETA-750B and signed his name under a declaration that the
contents of the fonn are true and correct under the penalty of perjury. On Part 15, eliciting information of the
beneficiary's work experience, he represented that he worked for the petitioner as a branch manager from April
1997 to the 750B, that he was a student from July 1991 to April 1997 and that he
worked for as a trade manager from March 1984 to June 1991. He does not provide
any additional information concerning his employment background on that form,
With the petition, the petitioner submitted a certificate of experience dated July 26,2001 from YD. Corporation
indicating that from 1984 to 1986, the beneficiary worked in the export department, where his duties included
handling LlC documents, receiving approval from official agencies and bank related business. From 1987 to
1991, the certificate indicates that he performed business work at YD. Corporation, including consulting of
export orders and export-related general activities.
On appeal, the petitioner asserts that the beneficiary was employed as a trade manager by YD. Corporation in
Korea from March 1984 to June 1991.The petitioner states that the duties of trade manager were virtually
identical to those of a branch manager.
The regulation at 8 C.F.R. § 204.5(1)(3) provides:
(ii) Other documentation-
(A) General. Any requirements of trammg or experience for skilled workers,
professionals, or other workers must be supported by letters from trainers or employers
giving the name, address, and title of the trainer or employer, and a description of the
training received or the experience of the alien.
(B) Skilled workers. If the petition is for a skilled worker, the petition must be
accompanied by evidence that the alien meets the educational, training or experience,
and any other requirements of the individual labor certification, meets the requirements
for Schedule A designation, or meets the requirements for the Labor Market Information
Pilot Program occupation designation. The minimum requirements for this
classification are at least two years of training or experience.
As noted by the director in his decision, the duties listed in the experience letter submitted by YD.
Corporation are different from those of the proffered position. Further, as noted by the director in his notice
of intent to deny, the certificate does not indicate the beneficiary's job title(s), number of hours worked per
week or exact dates of employment. The petitioner has submitted no new evidence on appeal to document the
beneficiary's prior employment experience. The AAO thus affirms the director's decision that the
preponderance of the evidence does not demonstrate that the beneficiary acquired three years of experience as
a branch manager from the evidence submitted into this record of proceeding. Therefore, the petitioner has
not demonstrated that the beneficiary is qualified to perform the duties of the proffered position.
WAC 03 131 54459
Page 9
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. The burden of proof in these proceedings rests solely with the petitioner. Section
291 of the Act, 8 U.S.c. § 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.