dismissed EB-3 Case: Janitorial Services

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
DL 
FILE: Office: VERMONT SERVICE CENTER Date: OCT 0 6 I@% 
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. 8 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. 
i 
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' Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center. Upon completion of reviewing the record of proceeding after granting a motion to reconsider, 
the director affirmed the previous decision. Now the matter is before the ~dministrative' Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner is a commercial cleaner. It seeks to employ the beneficiary permanently in the United States as 
a janitorial service supervisor. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification (labor certification or Form ETA 750), approved by the 
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. 
On appeal, counsel submits a brief and additional evidence.' 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. ij 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 8 C.F.R. 3 204.5(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 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 C.F.R. 3 
204.5(d). The petitioner must also demonstrate that, on the priolty 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. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 26, 2001. The proffered wage as stated on the Form ETA 
 . 
750 is $24.09 per hour ($50,107.20 per year2). The Form ETA 750 states that the position requires two (2) 
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). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
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years experience in the job offered. The evidence in the record of proceeding shows that the petitioner is 
structured as an S corporation. According to the tax returns in the record, the petitioner's fiscal year is based 
on a calendar year. On the Form ETA 75OB, signed by the beneficiary on March 7,2001, the beneficiary d~d 
not claim to have worked for the petitioner. On the petition, the petitioner claimed to have been established in 
1995, but did not provide information on its gross annual income, net annual income and number of current 
employees. 
With the petition, the petitioner submitted its Form 1120s U.S. Income Tax Return for an S Corporation for 
2001 and 2002 pertinent to its ability to pay the proffered wage. 
The director denied the petition on September 27,2004, finding that the petitioner had insufficient net income 
or net current assets to pay the proffered wage in 2001 and 2002, and thus failed to establish that it had the 
continuing ability to pay the proffered wage beginning on the priority date. On March 18, 2005, the director 
affirmed the denial upon granting a motion to reconsider. 
On appeal, counsel asserts that the director erred in only evaluating the petitioner's net income, and that the 
petitioner's ability to pay the proffered wage can be determined through other factors determining financial 
viability such as volume of business. 
In determining the petitioner's ability to pay the proffered wage during a given period, 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. In the instant case, the petitioner did not claim to employ the 
beneficiary and thus did not submit any documentary evidence of the beneficiary's compensation from the 
petitioner for the relevant time peri'od. Therefore, the petitioner has not established that it employed and paid 
the beneficiary the proffered wage during the period from the priority date through the present. 
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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. Counsel asserts on appeal 
that the petitioner's gross receipts and total income should be considered in determining its ability to pay. 
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 Chatzg v. Thornburgh, 719 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), afd, 703 F.2d 571 
(7th Cir. 1983). Counsel's reliance on the petitioner's gross receipts and total income 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: 
2 
 The director miscalculated the annual proffered wage as $50,0 17 
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 Jigures 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 record contains copies of the petitioner's tax returns for 2001 through 2003. The tax returns demonstrate 
the following financial information concerning the petitioner's ability to pay the difference between wage 
actually paid and the proffered wage from the priority date. 
In 2001, the Form 1 120s stated net income3 of $15,076. 
In 2002, the Form 1120s stated net income of $21,330. 
In 2003, the Form 1120s stated net income of $55,252. 
Therefore, for the years 2001 and 2002, the petitioner did not have sufficient net income to pay the proffered 
wage of $50,107.20, while its net income for 2003 was sufficient to pay the beneficiary the proffered wage in 
2003. 
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 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. Rather, 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 liabilitie~.~ A 
corporation's year-end current assets are shown on Schedule L, lines 1 tGough 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 the years 2001 and 2002 were $(4,006) and $(12,728) respectively. The petitioner had 
insufficient net current assets to pay the proffered wage in 2001 or 2002. 
Therefore, 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 continuing abillty to pay the beneficiary the proffered wage as 
3 
 Ord~nary lncome (loss) from trade or business activities as reported on Line 21. 
 I 
4 
According to Barron 's Dictionaty 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 prepald 
expenses. "Current liabilities" are obligations payable (m most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
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of the priority date through an examination of wages paid to the beneficiary, or its net income or net current 
assets. 
On appeal, counsel submits the petitioner's bank statements from January 1, 2001 through July 31, 2004 to 
demonstrate the petitioner's ability to pay the proffered wage from the priority date. Counsel's reliance on 
the balances in the petitioner's bank accounts is misplaced. First, bank statements are not among the three 
types of evidence, enumerated in 8 C.F.R. 5 204.5(g)(2), required to illustrate a, petitioner's ability to pay a 
proffered wage. While ths regulation allows additional material "in appropriate cases," the petitioner in this case 
has not demonstrated why the documentation specified at 8 C.F.R. 8 204.5(g)(2) is inapplicable or otherwise 
paints an inaccurate financial picture of the petitioner. Second, bank statements show the amount in an account 
on a gven date, and cannot show the sustainable ability to pay a proffered wage. Third, no evidence was 
submitted to demonstrate that the funds reported on the petitioner's bank statements somehow reflect additional 
available funds that were not reflected on its tax return, such as the petitioner's taxable income (income minus 
deductions) or the cash specified on Schedule L that was considered in determining the petitioner's net current 
assets. 
Counsel asserts on appeal that the petitioner's total income grew nearly 40% in the years 2001 through 2003 
and demonstrates the petitioner's strong financial viability and potential. However, the regulation requires 
that a petitioning entity demonstrate its continuing ability to pay the proffered wage beginning on the priority 
date. The petitioner must demonstrate its continuing ability to pay the proffered wage beginning on the 
priority date, which in this case is April 26, 2001. Thus, the petitioner must show its ability to pay the 
proffered wage not only in 2003, but it must also show its ability to pay the proffered wage in 2001 and 2002. 
Demonstrating that the petitioner had the ability to pay the proffered wage in 2003 with 40% growth in total 
income may suffice to show the petitioner's ability to pay for that year, but the petitioner must still 
demonstrate its ability to pay for the previous pertinent period of time. 
Furthermore, against the projection of future earnings, Matter of Great Wall, 16 I&N Dec. 142, 144-145 
(Acting Reg. Comrn. 1977) states: 
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 eligble 
to have the petition approved under a new set of facts hinged upon probability and projections, 
even beyond the information presented on appeal. 
Counsel states that a Department of Labor's (DOL) Bureau of Alien Labor Certification Appeals (BALCA) case 
is applicable to the instant petition. Citing to Matter of Oriental Pearl Restaurant, 92 INA 59 (BALCA 1993)' 
counsel states that the court found that even though the petitioner did not turn a profit, the large volume of 
business showed financial viability and ability to pay the beneficiary the proffered wage. However, counsel does 
not state how BALCA case law is applicable to the instant petition before the Department of Homeland Security's 
CIS' MO. While 8 C.F.R. $ 103.3(c) provides that precedent decisions of CIS are binding on all its empIoyees 
in the administration of the Act, BALCA decisions are not similarly binding. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. 8 103.9(a). While ths regulation 
allows additional material "in appropriate cases," the petitioner in this case has not demonstrated why the 
documentation specified at 8 C.F.R. 8 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial 
picture of the petitioner. 
Counsel also cites to Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967) which relates to petitions filed during 
uncharacteristically unprofitable or difficult years but only in a framework of profitable or successful years. 
The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual 
income of about $100,000. During the year in which the was filed in that case, the petitioner changed 
business locations and paid rent on both the old and new locations for five months. There were large moving 
costs and also a period of time when the petitioner was unable to do regular business. The Regional 
Commissioner determined that the petitioner's prospects for a resumption of successful business operations 
were well established. The petitioner was a fashion designer whose work had been featured in Time and Look 
magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's 
clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in California. 
The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound 
business reputation and outstanding reputation as a couturiere. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that the years 2001 and 2002 were uncharacteristically unprofitable years in a framework of 
profitable or successful years for the petitioner. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. 
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. 
9 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.