dismissed EB-3 Case: Garment Manufacturing

identifying data deleted to 
prevent clearly unwarranted 
:n y7+2 c; nr3 nf mrsmal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
'3 0 
FILE: Office: VERMONT SERVICE CENTER Date: MY 2 3 "' 
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. 
L 
n, Chief 
Administrative Appeals Office 
Page 2 
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 garment contractor. It seeks to employ the beneficiary permanently in the United States as 
a sample stitcher. 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 letter from the petitioner claiming it would replace employees with the 
beneficiary and resubmits documents submitted previously.' 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 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. tj 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 
tj 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 24, 2001. The proffered wage as stated on the Form ETA 
750 is $17.29 per hour ($35,963.20 per year). The Form ETA 750 states that the position requires two (2) 
years experience in the job offered. 
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 1999, to have a gross annual income of $126,598, 
1 
Counsel does not submit any additional evidence except submitting copies of the documents submitted 
previously although 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 
AAO will evaluate the decision of the director, based on the evidence submitted prior to the director's decision. 
Page 3 
to have a net annual income of $1,5 18, and to currently employ 5 workers. According to the tax returns in the 
record, the petitioner's fiscal years lasts from May 1 to April 30. On the Form ETA 750B, signed by the 
beneficiary on October 29,2001, the beneficiary did not claim to have worked for the petitioner. 
The petitioner did not submit any supporting documents with the initial filing pertinent to its continuing 
ability to pay the proffered wage from the priority date to the present. On November 13, 2003, because the 
director deemed the evidence submitted insufficient to demonstrate the petitioner's continuing ability to pay 
the proffered wage beginning on the priority date, the director requested additional evidence (WE) pertinent 
to that ability. The director specifically requested the petitioner provide its 2001 federal tax returns or annual 
reports or audited financial statements for 2001, Form W-3, Transmittal of Wage and Tax Statement for 2001, 
Form 941, Employer's Quarterly Federal Tax Return for all quarters of 2001 and the first quarter of 2002, and 
Form 1096, if applicable. 
In response, the petitioner submitted a letter from its president listing six employees, stating that their salaries 
would be transferred to the beneficiary, and provided their W-2 forms for 2000. 
The director denied the petition on October 4,2004, 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 advises that the beneficiary will replace employees who were no longer employed and 
submits another letter from the petitioner with W-2 forms for those employees who would be replaced. 
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 submit any evidence of 
the beneficiary's compensation from the petitioner. Therefore, the petitioner has not established that it 
employed and paid the beneficiary the full proffered wage during the period from the priority date through 
present. 
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, 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). 
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 
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 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 Form 1120 U.S. Corporation Income Tax Return for 2000 
covering the petitioner's fiscal year from May 1, 2000 to April 30, 2001. The priority date in the instant case 
is April 24, 2001. Therefore, the petitioner's 2000 tax return is the tax return for the year of the priority date. 
The petitioner's 2000 tax return demonstrates the following financial information concerning the petitioner's 
ability to pay the proffered wage of $35,963.20 per year from the priority date. 
In the fiscal year 2000, the Form 1120 stated net income2 of $912. 
Therefore, for the fiscal year 2000 (from May 1,2000 to April 30,2001), the petitioner did not have sufficient 
net income 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. 
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 net current 
assets in the fiscal year 2000, were $15,714, which were insufficient to pay the proffered wage. 
The petitioner did not submit its tax returns for 2001 through the present. 
 It is solely the petitioner's 
responsibility to meet the burden of proof in these proceedings. Section 291 of the Act, 8 U.S.C. 9 1361. 
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 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 1 18. 
Page 5 
Thus, the petitioner failed to establish its continuing ability to pay the proffered wage for 2001 through the 
present by virtue that the petitioner did not submit its tax returns for these years. 
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. 
Counsel asserts on appeal that there is another way to determine the petitioner's ability to pay the proffered 
wage from the priority date. Counsel advised that the beneficiary would replace six workers. Counsel submits 
the six employees' W-2 forms for 2000, however, 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. Moreover, salaries paid to others in 2000 are not available to prove the ability to pay the proffered wage 
to the beneficiary in 2001, the year of the priority date, and continuing to the present. In addition, there is no 
evidence that the positions of the six workers involve the same duties as those set forth in the Form ETA 750. 
The petitioner has not documented the position, duty, and termination of the worker who performed the duties of 
the proffered position. If those employees performed other kinds of work, then the beneficiary could not have 
replaced them. 
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.