dismissed EB-3 Case: Interior Design

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pUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. $ 1 153(b)(3). 
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 
EAC 04 063 53517 
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 an Interior Design business. It seeks to employ the beneficiary permanently in the United 
States as an Architectural Drafter. 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 (DOL). 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. 
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 21,2005 denial, the single issue in this case is whether 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. $ 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 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 is accepted for processing by any office within the employment 
system of the DOL. See 8 CFR $ 204.5(d). The petitioner must also demonstrate that, on the priority date, the 
beneficiary had the qualifications stated on its Form ETA 750 as certified by the DOL and submitted with the 
petition. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. I 977). 
Here, the Form ETA 750 was accepted on March 2, 2001. The proffered wage as stated on the Form ETA 
750 is $19.98 per hour, 40 hours per week or $41,558.40 annually. The Form ETA 750 states that the 
position requires six years of grade school education, four years of high school education and two years of 
experience as an Architectural Drafter. 
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 
EAC 04 063 53517 
Page 3 
1 
pertinent evidence in the record, including new evidence properly submitted on appeal. Relevant evidence in 
the record includes: the beneficiary's Form W-2, Wage and Tax Statement, issued by the petitioner, for the 
years 2001, 2002 and 2003; the petitioner's Form 1120S, U.S. Income Tax Return for an S Corporation, for 
the years 2001, 2002 and 2003; and a statement from the petitioner's president. The record does not contain 
any other evidence relevant to the petitioner's ability to pay the wage.* 
The record shows that the petitioner is structured as an S corporation. On the petition, the petitioner claimed 
to currently employ three workers, and failed to state when it was established. According to the tax returns in 
the record, the petitioner's fiscal year coincides with the calendar year. On the Form ETA 750B, which was 
signed by the beneficiary but not dated, the beneficiary did not claim to have worked for the petitioner 
On a peal, the petitioner's president, , asserts that the director erred in denying the petition. 
d suggests that the terrorist attacks of September 11, 2001 caused her New York City business to suffer, 
but that by expanding into the Internet market and by upgrading its merchandise, the petitioner's business 
would improve. ~urther,su~~ests that even if the petitioner is unable to demonstrate the ability to 
pay the proffered wage, the petition should be approved because the beneficiary has shown that he is able to 
live on less than the proffered wage and because the beneficiary is a fine person who would be an asset to the 
United States. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of the Form 
ETA 750 establishes a priority date for any immigrant petition later based on that Form 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. Comm. 1977). See also 8 C.F.R. 8 204.5(g)(2). In evaluating whether a job offer is 
realistic, Citizenship and Immigration Services (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. 612 (Reg. Comrn. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, 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 this 
case, the petitioner has not established that it employed and paid the beneficiary the full proffered wage 
during any relevant timeframe from the priority date through the present. However, the petitioner has 
demonstrated that it employed and paid the beneficiary $18,900 in 2001; $23,000 in 2002; and $21,500 in 
1 
 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). 
On the Form I-290B, Notice of Appeal to the Administrative Appeals Unit, counsel indicated that he would 
be sending a brief or other evidence in support of the appeal within 30 days. Subsequent to this, counsel 
submitted a statement from Susan Weiss, the petitioner's president, in support of the appeal. In this statement, 
indicated that her accountants would also be forwarding a statement in support of the appeal. 
However, nothing more has been received into the record to date. 
EAC 04 063 535 17 
Page 4 
2003. Thus, the difference between the wages it actually paid the beneficiary and the proffered wage of 
$41,558.40 is $22,658.40 in 2001; $1 8,558.40 in 2002; and $20,058.40 in 2003. 
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. 111. 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 
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 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.) Chi-Feng at 537 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $41,558.40 per year from the priority date: 
In 2001, the Form 1 120s stated a net income(10ss)~ of -$20,583. 
In 2002, the Form 1120s stated a net income (loss) of -$94,273. 
In 2003, the Form 1 120s stated a net income (loss) of -$75,063. 
Therefore, for the years 2001, 2002 and 2003, 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 may not, therefore, be considered funds available to pay the proffered wage. Also the 
petitioner's liabilities must be subtracted from the petitioner's total assets, when analyzing the petitioner's 
3 
 Ordinary income (loss) from trade or business activities as reported on Line 21 of the Form 1 120s. 
EAC 04 063 53517 
Page 5 
ability to pay the proffered wage. Thus, 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 ~iabilities.~ 
 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 during 2001 were -$177,365.' 
The petitioner's net current assets during 2002 were -$278,001. 
The petitioner's net current assets during 2003 were -$349,808. 
Therefore, for the years 2001, 2002 and 2003, the petitioner did not have sufficient net current assets to pay 
the proffered wage. 
Thus, the petitioner has not established through wages paid to the beneficiary, net income, or net current 
assets that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date and 
through subsequent years. 
On appeal, the petitioner's president suggests that the terrorist attacks of September 11, 2001 
caused her New York City business to suffer. However, the record contains no evidence that specifically 
connects a decline in the 
 business to the events of September 11, 2001. A mere assertibn that the 
petitioner's business was adversely affected by the September 11, 2001 attacks cannot by itself demonstrate 
the petitioner's continuing ability to pay the proffered wage beginning on the priority date. Unsupported 
assertions are not evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
also suggests that by expanding into the Internet market and by upgrading merchandise, the 
petitioner's business would improve in the future such that the petitioner might be able to pay the beneficiary 
the proffered wage. However, arguments regarding a possible increase in future earnings are 
misplaced. CIS shall only approve the instant petition if the petitioner demonstrates the ability to pay the 
proffered wage from the priority date onwards. See 8 C.F.R. tj 204.5(g)(2). 
Finally, suggests that even if the petitioner is not able to demonstrate the ability to pay the 
proffered wage, the petition should be approved because the beneficiary has shown that he is able to live on 
less than the-proffered wage and because the beneficiary is a fine pkrson who would be an asset to this 
country. Whether the beneficiary is able to live on less than the proffered wage and whether the beneficiary 
would be an asset to the United States are not relevant to the adjudication of the petition. CIS shall only 
4 
 According to Barron 's Dictionary of Accounting Terms 1 17 (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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 11 8. 
The director erred when he stated in the January 21, 2005 denial that the 2001 net current assets (liabilities) 
were -$178, 071; that the 2002 net current assets (liabilities) were -$278,229; and that the 2003 net current 
assets (liabilities) were -$350,036. 
EAC 04 063 535 17 
Page 6 
approve the petition if the petitioner demonstrates the ability to pay the proffered wage during the relevant 
period. See 8 C.F.R. 5 204.5(g)(2). 
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. 
8 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.