dismissed EB-3 Case: Jewelry

identifying data deleted to 
prevent clearly unwarranted 
invasion of -ai privacy 
P*UC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. 
Administrative Appeals Office 
EAC-04-256-5 1935 
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 jewelry store. It seeks to employ the beneficiary permanently in the United States as a 
jeweler. 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 October 6, 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 this 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. 3 204.5(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 profitJloss 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 November 4,2002. The proffered wage as stated on the Form ETA 750 is $38,195.70 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 
I 
 According to the Form ETA 750, the proffered wage is $38,195.70. Thus, counsel erred in stating that the proffered 
wage is $38,795.70. 
EAC-04-256-5 1935 
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evidence in the record, including new evidence properly submitted upon appeal2. 
 No new evidence was 
submitted on appeal. Other relevant evidence in the record includes copies of the petitioner's Form 1120 U.S. 
Corporation Income Tax Returns for 2002 and 2003, the petitioner's bank statements for 2003, and a letter from 
counsel dated September 9, 2004. The record does not contain any other evidence relevant to the petitioner's 
ability to pay the wage. 
Counsel states on appeal that CIS erred in not considering the amount listed as inventory on the petitioner's tax 
returns, and one unprofitable year will not cause the petition to fail if the petitioner can show that it was profitable 
in the years before and after the unprofitable year. 
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. 5 204.5(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. 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 October 20,2002, the beneficiary did not claim 
to have worked for 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 Cop. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldrnan, 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., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), afd., 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 Cop., 632 F. Supp. at 1054. 
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. 5 103.2(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). 
EAC-04-256-5 1935 
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The evidence indicates that the petitioner is a corporation. The record contains copies of the petitioner's Form 
1120 U.S. Corporation Income Tax Returns for 2002 and 2003. The record before the director closed on 
September 13, 2004 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 2004 was not yet due. Therefore the petitioner's tax return 
for 2003 is the most recent return available. 
For a corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of the Form 1120 U.S. Corporation Income Tax Return, or the 
equivalent figure on line 24 of the Form 1120-A U.S. Corporation Short Form Tax Return. The petitioner's tax 
returns show the amounts for taxable income on line 28 as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2002 and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2002 and 
2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, 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, 
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's attached to the petitioner's tax returns yield the amounts 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 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2002 and 2003. 
EAC-04-256-5 1935 
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The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2002 and 
2003. 
Counsel states on appeal that "CIS erroneously did not consider the [pletitioner's inventory." As stated 
above, Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. Thus, CIS, in calculating net current assets, does consider the petitioner's inventory. 
However, CIS will not consider the petitioner's inventory, listed as one of the petitioner's current assets, 
without also looking at the petitioner's current liabilities. 
Counsel also states on appeal that "an unprofitable year will not cause the petition to fail if the petitioner can 
show that it was profitable before andtor after the year in which the labor certification case was filed" and 
cites to Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comrn. 1967). The petitioning entity in Sonegawa had 
been in business for over 11 years and routinely earned a gross annual income of about $100,000.00. During the 
year in which the petition 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 bestdressed 
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 both 2002 and 2003 were uncharacteristically unprofitable years for the petitioner. In addition, 
the record is silent on the petitioner's profitability before 2002 and after 2003. Thus, the AAO cannot determine 
whether or not the petitioner was profitable before 2002 andlor after 2003. 
The record contains a letter from counsel dated September 9, 2004 stating that the petitioner's gross income, 
gross receipts, total assets, and bank statements indicate funds available to pay the proffered wage. The letter also 
states that the beneficiary's proffered wage from November 4, 2002 to December 31, 2002 is $5,876.24. The 
record likewise contains the petitioner's bank statements for 2003. 
Counsel's reliance on the petitioner's gross income and gross receipts is misplaced because gross receipts do 
not take into account cost of goods sold, and both gross income and gross receipts do not take into 
consideration deductions. Thus, CIS will not look at the petitioner's gross income and gross receipts in 
determining the petitioner's ability to pay the proffered wage. 
CIS likewise does not consider total assets because 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, as demonstrated above, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. 
The petitioner's bank statements will also not be considered because 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 this regulation allows additional material "in appropriate cases," the petitioner in this case 
EAC-04-256-5 1935 
Page 6 
has not demonstrated why the documentation specified at 8 C.F.R. 3 204.5(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 given 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 will be considered below in determining the petitioner's net 
current assets. Moreover, according to the petitioner's bank statements, the petitioner had a negative ending 
balance, -$2,420.08, in July 2003. 
In addition, the letter from counsel requests that CIS prorate the proffered wage for the portion of the year that 
occurred after the priority date, and CIS will not consider 12 months of income towards an ability to pay a lesser 
period of the proffered wage any more than we would consider 24 months of income towards paying the annual 
proffered wage. While CIS will prorate the proffered wage if the record contains evidence of net income or 
payment of the beneficiary's wages specifically covering the portion of the year that occurred after the priority 
date (and only that period), such as monthly income statements or pay stubs, the petitioner has not submitted such 
evidence. 
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 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. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.