dismissed EB-3 Case: General Contractor

1J.S. Department of tIomclmd Security 
20 Mass, Rm. A3042,425 I Street, N.W. 
Washington, DC 20536 
tdentIfying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Citizenship 
and Immigration 
Services 
q6 
PUBLIC COPY 
Office: CALIFORNIA SERVICE CENTER Date: 3 0 2006 
WAC 03 016 54146 
PETITION: 
 Immigrant Petition for Alien Worker a Unskilled Worker Pursuant to Section 203(b)(3) of the 
Immigration and Nationality Act, 8 U.S.C. !j 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. 
~ogert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment based immigrant visa petition was denied by the Director, California Service 
Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the 
AAO on a motion to reconsider. The motion will be granted, the previous decisions of the director and the AAO 
will be affirmed, and the petition will be denied. 
The petitioner is a general contractor. The petitioner sought to employ the beneficiary permanently in the United 
States as a records clerk. As required by statute, the petition was accompanied by an individual labor 
certification approved by the Department of Labor. 
On March 19, 2004, the director determined that the petitioner had not established that it had the continuing 
financial ability to pay the beneficiary the proffered wage as of the priority date of the visa petition and denied the 
petition. 
The AAO dismissed the petitioner's appeal on July 12, 2004. 
 The AAO reviewed the financial information 
contained in the petitioner's corporate federal tax returns for 2001 through 2003, as well as other evidence 
submitted to the record includmg state quarterly wage reports, the beneficiary's 2003 W-2, and two accountants' 
letters. The AAO noted found that for the three years under consideration, the petitioner's evidence hiled to 
demonstrate that it had the ability to pay the proffered wage of $24,897.60 in 2001 or 2002. For 2003, the AAO 
noted that the petitioner's reported net taxable income as shown on its 2003 corporate tax return could cover the 
difference between the proffered wage and the actual wages paid. 
The regulation at 8 C.F.R. $ 103.5(a)(3) provides that a motion to reconsider must offer the reasons for 
reconsideration and be supported by pertinent legal authority showing that the decision was based on an incorrect 
application of law or CIS policy. It must also demonstrate that the decision was incorrect based on the evidence 
contained in the record at the time of the initial decision. 
In this case, counsel argues that because the petitioner has demonstrated its ability to pay the proffered wage 
through its actual payment of wages to the beneficiary in 2003, the petition should be approved based on a totality 
of the physical circumstances. Counsel cites two Board of Alien Labor Certification Appeals (BALCA) cases for 
this proposition, as well as Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967) and Matter of Great 
Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). It is noted that while BALCA cases may be considered 
as guidance is some cases, they are not considered binding pursuant to 8 C.F.R. $ 103.3(c) and 8 C.F.R. 8 
103.9(a), which describes precedent decisions as those published in bound volumes or as interim decisions. 
As noted in the AAO's previous decision, the regulation at 8 C.F.R. $ 204.5(g)(2), as finalized in 1991, requires 
that a petitioner's evidence demonstrating its continuing ability to pay the proffered wage as of the priority date 
must include either annual reports, federal tax returns, or audited financial statements. As stated in the regulation, 
'the petitioner must demonstrate this ability at the time the priority date is established and continuing until the 
beneficiary obtains lahl permanent residence." Id. The priority date is established as the date that the ETA 750 
was accepted for processing by any office within the employment system of the Department of Labor. See 8 
C.F.R. $ 204.5(d). In this case, the priority date is February 28,2001. If the petition is approved, the priority date 
is also used in conjunction with the Visa Bulletin issued by the Department of State to determine when a 
beneficiary can apply for adjustment of status or for an immigrant visa abroad. Thus, the importance of 
reviewing the born Jides of a job opportunity as of the priority date, including a prospective U.S. employer's 
ability to pay the proffered wage is clear. 
In this case, counsel asserts that CIS erred in not regarhng the petitioner's ability to pay the proffered wage in 
2003 as measured by its payment of wages to the beneficiary beginning in that year, as the determinative 
evidence in demonstrating its ability to pay the certified wage. 
We do not agree. As noted in Matter of Great Wall, 16 I&N Dec. at 144-145 : 
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could 
not pay the offered wage at the time the petition was filed, should subsequently become eligible 
to have the petition approved under a new set of facts hinged upon probability and projections, 
even beyond the information presented on appeal. 
As noted above, federal tax returns are one of the three required forms of evidence that CIS reviews in making the 
determination of a petitioner's ability to pay a given wage. In this case, the petitioner elected to submit its federal 
tax returns rather than one of the other forms of documentation. As noted in the previous AAO decision, CIS will 
review the net income figure reflected on the petitioner's federal income tax return, without consideration of 
depreciation or other expenses. See K.C.P. Food Co. v. Sava, 623 F. Supp. 1080, 1084 (S.D.N.Y. 1985). 
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 (9' Cir. 1984)); see 
also Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Tex. 1989); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), affd, 703 F.2d 571 (7~ Cir. 1983). 
It is noted that we do not believe that the Acting Regional Commissioner's dismissal of the appeal in Matter 
of Great Wall, supra, or the Regional Commissioner's sustaining the appeal in Matter of Sonegawa, supra, 
necessarily mandates the approval in this case. The Acting Regional Commissioner in Matter of Great Wall 
found that the burden of proof remains with the petitioner and that the evidence in that case reflected that the 
petitioner did not and could not pay the offered wage at the time the petition was filed despite consideration 
that the petitioner might sometime in the future be able to pay the certified wage. 
Matter of Sonegawa, may be applicable where the expectations of increasing business and profits support a 
petitioner's ability to pay the proffered wage. The Sonegawa case, however, relates to petitions filed during 
uncharacteristically unprofitable or difficult years within a framework of profitable or successful years. 
During the year in which the petition was filed, the Sonegawa petitioner changed business locations, and paid 
rent on both the old and new locations for five months. There were large moving costs and a period of time 
when business could not be conducted. The Regional Commissioner determined that the prospects for a 
resumption of successful operations were well established. He noted that the petitioner was a well-known 
fashion designer who had been featured in Time and Look. Her clients included movie actresses, society 
matrons and Miss Universe. The Regional Commissioner's determination in Sonegawa was based in part on 
the petitioner's sound business reputation and outstanding reputation as a couturiere. In this case, with the 
exception of the 2003 corporate tax return, the petitioner's other returns reflected fairly modest net income 
(all less than the proffered wage) and do not indicate the kind of framework of profitability, which parallel the 
circumstances prevailing in Sonegawa, or that these years were uncharacteristic in the petitioner's business 
operation. 
Accordingly, based on the evidence contained in the record and the foregoing discussion, we cannot conclude 
that the petitioner has demonstrated that its continuing ability to pay the proffered wage as of the priority date 
Page 4 
of the petition. As such, the petitioner's motion does not overcome the grounds of dismissal as set forth in the 
AAO decision of July 12, 2004. 
The burden of proof in these proceedings rests solely with the petitioner. Section 29 1 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not met that burden. 
ORDER: 
 The motion to reopen is granted, and the previous decisions of the director and the AAO 
are affirmed. The petition remains denied.