dismissed EB-3 Case: Granite And Marble Fabrication

identifying data deleted to 
prevent clearly unwarranted 
invasion of pasod privacy 
ptJE3LIC cop* 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: -~ Office: VERMONT SERVICE CENTER 
EAC-03- 176-52608 
 Date: MAY 2 6 2006 
IN RE: 
PETITION: 
 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 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. 
~o6ert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a custom granite and marble fabrication firm. 
 It seeks to employ the beneficiary 
permanently in the United States as a machine operator. 
 As required by statute, a Form ETA 750, 
Application for Alien Employment Certification approved by the Department of Labor, accompanied the 
petition. 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 and 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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's November 23, 2004 denial, the single issue in this case is 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. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 thls paragraph, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
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 either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. 5 204.5(d). The priority date in the instant 
petition is February 23, 2001. The proffered wage as stated on the Form ETA 750 is $13.36 per hour, which 
amounts to $27,788.80 annually. 
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 
Page 3 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
appeal includes a letter from the petitioner's certified public accountant dated December 6, 2004. Other relevant 
evidence in the record includes a copy of the petitioner's Form 1065 U.S. Return of Partnership Income for 2001 
and a letter from the petitioner dated December 2,2002. The record does not contain any other evidence relevant 
to the petitioner's ability to pay the wage. 
Counsel states on appeal that the petitioner should have been issued a request for evidence and the petitioner's 
depreciation can be considered in determining the petitioner's ability to pay 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 establish 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 realistic. 
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Cornrn. 1977). See also 8 C.F.R. 3 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial resources sufficient 
to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning 
business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 
6 12 (Reg. Cornrn. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this 
evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the instant 
case, on the Form ETA 750B, signed by the beneficiary on April 26, 2001, the beneficiary claimed to have 
worked for the petitioner beginning in August 1999 and continuing through the date of the ETA 750B. However, 
the record does not contain any Form W-2's, Form 1099's, or other evidence to show that the beneficiary 
received compensation from the petitioner. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 COT. 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, 719 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., fnc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), affd., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. 
' 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 provides no 
reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988). 
Page 4 
The evidence indicates that the petitioner is a domestic limited liability company. The record contains a copy of 
the petitioner's Form 1065 U.S. Return of Partnership Income for 2001. The record before the director closed on 
May 14, 2003 with the receipt by the director of the petitioner's 1-140 petition and supporting documents. As of 
that date the petitioner's federal tax return for 2003 was not yet due. Therefore the petitioner's tax return for 2002 
is the most recent return available. The record does not contain a copy of the petitioner's Form 1065 U.S. Return 
of Partnership Income for 2002. 
Where a partnership's income is exclusively from a trade or business, CIS considers net income to be the figure 
for ordinary income, shown on line 22 of page one of the petitioner's Form 1065. In the instant petition, the 
petitioner's 2001 tax return shows the amount for income on line 22 of page one, as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
200 1 $14,448.00 $27,788.80* -$13,340.80 
2002 No Information $27,788.80" No Information 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001 and 2002. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001 and 
2002. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a partnership taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A partnership's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 15 through 17. If a partnership's net current assets are equal to or greater than 
the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L attached to the petitioner's 2001 tax return yield the amount for net 
current assets as shown in the following table. 
Tax Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
2001 -$42,211.00 $27,788.80" 
2002 No Information $27,788.80* 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001 and 2002. 
Page 5 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001 and 
2002. 
Counsel states on appeal that "[nlo Notices of Actions were ever received regarding the merits of the case," and 
"a Notice . . . should have been issued, affording the [pletitioner the opportunity to show that [its depreciation 
should be considered]." The regulation at 8 C.F.R. $ 204.5(g)(2) states that the director may request additional 
evidence in appropriate cases. Hence, the director may, but is not required to, request additional evidence. In 
any event, the notice of appeal issued to the petitioner sufficiently overcomes any harm that resulted from the 
director not requesting additional evidence because the petitioner can file an appeal and submit additional 
evidence on appeal, and the petitioner did submit additional evidence on appeal. 
Counsel also states that "$60,806.00 shown in depreciation was not an expense to the business and should have 
been added back into [olrdinary [ilncome." The letter from the petitioner's certified public accountant dated 
December 6, 2004 likewise states that "[dlepreciation is a noncash deduction and can be added back to [nlet 
[plrofits." There is no precedent that would allow the petitioner to "add back to net cash the depreciation expense 
charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. The court in Chi-Feng Chang further 
noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are noncash 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.) 719 F. Supp. at 537. 
After a review of the evidence, it is concluded that the petitioner has not established its ability to pay the 
salary offered as of the priority date of the petition and continuing until the beneficiary obtains lawful 
permanent residence. The decision of the director to deny the petition was correct, based on the evidence in 
the record before the director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.