dismissed EB-3 Case: International Trade

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prevent dearly unwarranted 
inraba dpclsosnl privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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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 international trading company. It seeks to employ the beneficiary permanently in the 
United States as a shippinglreceiving supervisor. 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 of this case is documented in 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 September 20, 2004 denial, the single issue in this case is whether the evidence 
establishes the petitioner's 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 slulled 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. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
Ability ofprospective employer to pay wage. Any petition filed by or for an employment-based 
immigrant whlch 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 profitlloss 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. $ 204.5(d). The priority date in the instant 
petition is Apll 27, 2001. The proffered wage as stated on the Form ETA 750 is $12.25 per hour, which 
amounts to $25,480.00 annually. 
The AAO reviews appeals on a de novo basis. See Dorr v. I.N.S. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). 
The AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
Page 3 
In the instant appeal, counsel submits a brief and no additional evidence. Counsel states on appeal that bank 
statements of the petitioner in the record show an average monthly balance sufficient to pay the proffered wage, 
while still leaving sufficient capital available to the petitioner. 
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. Comm. 1977). See also 8 C.F.R. 
€j 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. 612 (Reg. Comm. 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 14,2001, the beneficiary claimed to 
have worked for the petitioner beginning in September 2000 and continuing through the date of the ETA 
750B. However the record contains no other evidence corroborating the beneficiary's claim to have worked 
for the petitioner and no evidence indicating the amount of any compensation paid by the petitioner to the 
beneficiary. 
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 Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9h Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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 (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. Finally, 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. 
In the instant case, the record contains no federal income tax returns for the petitioner. Therefore, the record 
provides no basis on which to evaluate the petitioner's net income as shown on its tax returns. 
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 corporate 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 corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. If a corporation'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, 
Page 4 
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. 
As noted above, the record in the instant case contains no federal income tax returns for the petitioner. 
Therefore the record provides no basis on which to calculate the petitioner's net current assets as shown on its 
tax returns. Nor has the petitioner submitted evidence in one of the other alternative forms of evidence required 
by the regulation at 8 C.F.R. 8 204.5(g)(2), namely copies of annual reports or audited financial statements. 
The record contains a copy of a letter dated April 8, 2004 from the petitioner's president and chief financial 
officer. The letter states as follows: 
This is to certify that [the petitioner] is an international tradinglmoney remittance company 
that has financial capacity to pay the wages of its employees. 
In 2001, the company has had a gross income of $266,201, while for 2002 its gross profit was 
$267,177. During the said two-year period, the company had maintained an average monthly 
balance of $15,000 in its business account, with occasional balance of as high as $30,000. 
As proofs of the company's sound financial condition, we are attaching copies of the 
company's bank statements covering the period from 2001 through 2002. 
This certification is being submitted to established [sic] [the petitioner's] capacity to pay the 
wages of its employees. 
(Letter from petitioner's President/C.F.R., April 8,2004). 
The 1-140 petition states in Part 5 that the petitioner and employs three employees. The regulation at 8 C.F.R. 
5 204.5(g)(2) states that where a petitioner 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. Since the petitioner claims to employ only three employees, a statement from a financial 
officer is not an acceptable form of required evidence, beyond the three alternative forms of evidence required 
by the regulation at 8 C.F.R. 5 204.5(g)(2), namely copies of annual reports, federal tax returns, or audited 
financial statements. Therefore the April 8, 2004 letter fails to establish the petitioner's ability to pay the 
proffered wage during the relevant period. 
The record also contains copies of bank statements for an account of the petitioner. However, bank statements 
are not among the three types of evidence listed in 8 C.F.R. $204.5(g)(2) as acceptable evidence to establish a 
petitioner's ability to pay a proffered wage. While that regulation allows additional material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. 9 204.5(g)(2) 
is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. 
Counsel states on appeal that bank statements of the petitioner in the record show an average monthly balance of 
approximately $15,000.00 in the year 2001. Counsel states that the balances represent earnings or surplus, and 
that they could have been applied to an additional monthly salary of $2,000.00 per month. Counsel states that 
disbursing a salary of $2,000.00 every month would have reduced the average monthly balance to $13,000.00, 
which was still a sufficient amount for the petitioner's monthly capitalization. 
Notwithstanding counsel's assertions, bank statements show the amount in an account on a given date, and do not 
show the sustainable ability to pay a proffered wage. Funds used to pay the proffered wage in one month would 
reduce the monthly ending balance in each succeeding month. 
Page 5 
On the petitioner's bank statements the ending balances are as follows: 
January 
February 
March 
April 
May 
June 
July 
August 
September 
October 
November 
December 
* No statement for August 2001 was submitted, but the August ending balance is 
shown as the initial balance on the September statement. 
The above ending balances do not show monthly increases by amounts whlch would be sufficient to pay the 
proffered wage. Finally, no evidence was submitted to demonstrate that the funds reported on the petitioner's 
bank statements show additional available funds that are not reflected on its tax returns, such as the cash specified 
on Schedule L that is considered in determining a corporate petitioner's net current assets. Moreover, no copies 
of bank statements were submitted for April 2001, which is the month of the priority date, nor for May 2001. 
The record contains no other evidence relevant to the petitioner's financial situation. 
In a letter dated October 8, 2004 counsel states that CIS has disregarded "administrative precedents" in denying 
the instant petition. (Letter from counsel, October 8,2004). However, counsel cites no precedent which CIS has 
allegedly disregarded, nor does counsel point to any part of the director's decision which counsel alleges is 
specifically in error. 
Based on the foregoing analysis, the evidence in the record fails to establish the petitioner's ability to pay the 
proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. 
In her decision, the director noted the absence of federal tax returns for the year 200 1,2002 and 2003, and the 
absence of any Form W-2 Wage and Tax Statement of the beneficiary. The director correctly found that the 
letter dated April 8, 2004 from the petitioner's president and chief financial officer was not an acceptable 
form of evidence because the petitioner claimed to employ only three persons. The director noted that the 
April 8, 2004 letter was not audited or reviewed. The director's statement on that point appears to suggest 
that a reviewed financial statement would an acceptable form of evidence. However, the regulation makes no 
reference to reviewed financial statements, and refers only to audited financial statements as one of the three 
alternative forms of required evidence. See 8 C.F.R. 
 204.5(g)(2). 
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 fail to overcome the decision of 
the director. 
Page 6 
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.