dismissed EB-3 Case: General Merchandise

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PUBLICCOl>Y
U.S. Department of Homeland Security
20 Mass, NW. Rm. A3042
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
SRC 04 036 50712
Office: -TEXAS SERVICE CENTER Date: I'fAY 102006
INRE: Petitioner:
Beneficiary:
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. § 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
www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now
before the Administrative Appeals Office on appeal. The appeal will be dismissed.
The petitioner is a wholesale distributor, general merchandise corporation. It seeks to employ the beneficiary
permanently in the United States as a buyer, general merchandise. As required by statute, the petition is
accompanied by a Form ETA 750, Application for Alien Employment Certification, approved by the U. S.
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.
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 at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability ofprospective 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 regulation at 8 CFR § 204.5(1)(3)(ii) states, in pertinent part:
(A) General. Any requirements of training 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.
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. 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. Comm. 1977).
Page 3
, Here, the Form ETA750 was accepted on April 30,2001. The proffered wage as stated on the Form ETA
750 is $48,600.00 per year. The Form ETA 750 states that the position requires two years experience.
On appeal, counsel submits a legal brief and additional evidence.
With the petition, counsel submitted copies of the following documents: the original Form ETA 750,
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal
Revenue Service Form tax returns for 2001 and 2002; a State of Georgia tax return; a compiled financial
statement; and, copies of documentation concerning the beneficiary's qualifications as well as other
documentation.
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8
C.F.R. § 204.5(g)(2), the director requested on September 20, 2004, pertinent evidence of the petitioner's ability
to pay the proffered wage beginning on the priority date. The director requested additional evidence for 2003.
In response to the request for evidence of the petitioner's ability to pay the proffered wage beginning on the
priority date, the petitioner submitted the petitioner's U.S. Internal Revenue Service (IRS) Form 1120S tax
return for year 2003.
The director denied the petition on November 30, 2004, finding that the evidence submitted 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 erred in the determination of the ability to pay the proffered wage
and in the determination of the net assets of petitioner. Counsel contends that taxable income and total assets,
as combined, evidence the ability to pay the proffered wage. Counsel asserts that the petitioner will "forgo
annual officer's compensation" to pay the wage.
Counsel has submitted to accompany the appeal statement a letter from the petitioner
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. 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. No evidence was submitted to show that the petitioner
employed the beneficiary.
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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 c«, 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). In K.CP. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have
considered income before expenses were paid rather than net income. Finally, no precedent exists that would
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang
v. Thornburgh, Supra at537. See a/soE/atos Restaurant Corp. v. Sava, Supra at 1054.
The tax returns! demonstrated the following financial information concerning the petitioner's ability to pay
the proffered wage of $48,600.00 per year from the priority date of April 30, 2001:
• In 2001, the Form 1120S stated taxable income of$31,465.00.
• In 2002, the Form 1120S stated taxable income of$10,571.00.
• In 2003, the Form 1120S stated taxable income of $28,046.00.
• In 2004, the Form 1120S stated taxable income of $13,904.00.
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to
pay the proffered wage at any time between the years 2001 through 2004 for which the petitioner's tax returns
are offered for evidence.
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 liabilities? A
corporation's year-end current assets are shown on Schedule L, lines 1 through 6; That schedule is included
with, as in this instance, the petitioner's filing of Form 1120S federal tax return. The petitioner's year-end
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage.
Counsel asserts that the director erred in the determination of the ability to pay the proffered wage and in the
determination of the net assets of petitioner. Examining the Form 1120S U.S. Income Tax Returns submitted
by the petitioner, Schedule L found in each of those returns indicates the following:
• In 2001, petitioner's Form 1120S return stated current assets of $13,394.00 and $833.00 in current
liabilities. Therefore, the petitioner had $12,561.00 in net current assets. Since the proffered wage is
$48,600.00 per year, this sum is less than the proffered wage.
• In 2002, petitioner's Form 1 i20S return stated current assets of $10,246.00 and $617.00 in current
liabilities. Therefore, the petitioner had $9,629.00 in net current assets. Since the proffered wage is
$48,600.00 per year, this sum is less than the proffered wage.
• In 2003, petitioner's Form 1120S return stated current assets of $33,134.00 and <$23.00> in current
liabilities. Therefore, the petitioner had $33,111.00 in net current assets. Since the proffered wage is
$48,600.00 per year, this sum is less than the proffered wage.
• In 2004, petitioner's Form 1120S return stated current assets of $35,396.00 and $112.00 in current
liabilities. Therefore, the petitioner had $35,284.00 in net current assets. Since the proffered wage is
$48,600.00 per year, this sum is less than the proffered wage.
1 Tax returns submitted for years prior to the priority date, have,little probative value to show the ability to
pay the proffered wage.
2 According to Barron's Dictionary ofAccounting Terms 117 (3T ded. 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 as accounts
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118.
Page 5
Therefore, for the period 2001, 2002, 2003 and 2004 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 ability to pay
the beneficiary the proffered wage at the time of filing through an examination of its net current assets.
Counsel asserts in his brief accompanying the appeal that there are other ways to determine the petitioner's
ability to pay the proffered wage from the priority date. According to regulation,' copies of annual reports,
federal tax returns, or audited financial statements are the means by which petitioner's ability to pay is
determined.
We reject the petitioner's assertion that the petitioner's total assets should have been considered in the
determination of the ability to pay the proffered wage. 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.
Counsel contends that taxable income and total assets or net assets, as combined, evidence the ability to pay
the proffered wage. Correlating the amounts stated i~ counsel's contention with the petitioner's tax return for
each year, it is clear that counsel is combining petitioner's taxable income each year with the total assets. CIS
will consider separately, the taxable income and the total assets of a business to determine the ability of a
petitioner to pay the proffered wage on the priority date. To combine the two would be duplicative of
petitioner's taxable income. Certain items represented on Schedule L, including cash, would normally
constitute part of the figure listed on page one of the tax return under total income. Counsel's method would
count those funds twice.
Counsel asserts that the petitioner will "forgo annual officer's compensation" to pay the proffered wage.
Counsel makes a contention that officer's salary/compensation could be used as an asset to pay the proffered
wage, but the compensation of officers represents monies already expended by the corporation, and, therefore,
not an asset. The officer's compensation is an expense. 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 contiriuing to the
present. The suggestion that expenses should be treated as assets available to pay the proffered wage is not
persuasive. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The record of proceeding does not show the officer's
ability to forego their compensation, and, also that in 2002 and 2004, net income and the officer's
compensation still did not equal the proffered wage of $48,600.00.
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered
wage beginning on the priority date.
Counsel's contentions cannot be concluded to outweigh the evidence presented in the 'corporate tax returns as
submitted by petitioner that shows that the petitioner has not demonstrated its ability to pay the proffered
wage from the day the Form ETA 750 was accepted for processing byany office within the employment
system of the Department of Labor.
3 8 C.F.R. § 204.5(g)(2).
Page 6
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 disrriissed.