dismissed EB-3 Case: Landscape Construction

identifying data deleted to 
prevent clearly unw- 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
9 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 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. 
kobert 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 on appeal. The appeal will be dismissed. 
The petitioner is a landscape construction corporation. It seeks to employ the beneficiary permanently in the 
United States as a landscape designer and constructor. 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. 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. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The regulation at 8 C.F.R. 4 204.5(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 regulation at 8 CFR 5 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
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. The petitioner must 
also demonstrate that, on the priority 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. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $17.25 per hour ($35,880.00 per year). The Form ETA 750 states that the position requires one-year 
experience. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal 
Revenue Service Form tax returns for 2001 and 2002; and, copies of documentation concerning the 
beneficiary's qualifications as well as other documentation. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. fj 204.5(g)(2), the director requested on June 9, 2004, pertinent evidence of the petitioner's ability to pay 
the proffered wage begnning on the priority date. The director requested the beneficiary's W-2 Wage and Tax 
Statements for 2001,2002 and 2003 as well as all issued W-2 and Form 1099-MISC for all employees. Also, the 
director requested additional evidence of the petitioner's ability to pay the proffered wage begnning on the 
priority date. 
In response to the request for evidence, counsel submitted the petitioner's U.S. Internal Revenue Service (IRS) 
Form 1120 tax return for year 2003; approximately 35 pages of bank statements; a W-2 Wage and Tax Statement 
and personal tax returns for the beneficiary for 2001,2002 and 2003; and, W-2 statements for its employees. 
The director denied the petition on November 5, 2004, finding that the evidence submitted did not establish 
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts that the petitioner's assets and tax returns evidence the ability to pay the proffered 
wage. Counsel contends that in 2001, 2002, and 2003, the petitioner's net current assets were "equal to or 
greater than the proffered wage." Counsel further states that Matter of Sonegawa, 12 I&N Dec. 612 (BIA 
1967), supports his contention that " . . . the Petitioner showed increasing profits and ample available cash." 
Counsel has submitted no documents to accompany the appeal statement. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. 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. Counsel states in his brief submitted on appeal that the 
petitioner employed the beneficiary since April 1997. A letter by the petitioner dated June 9, 2003, was 
submitted to show that the petitioner employed the beneficiary at an hourly rate of $14.50 per hour. 
According to the W-2 Wage and Tax Statements submitted the petitioner paid the beneficiary $20,558.49 in 
2001; in 2002, $16,994.19; and, in 2003, $28,805.16. By the evidence submitted, the petitioner did not pay 
the beneficiary the proffered wage nor the proffered wage rate. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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. Ill. 1982), affd, 703 
F.2d 57 1 (7th Cir. 1983). In K. C. P. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered income before expenses were paid rather than net income. Finally, no precedent exists that would 
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang 
v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054. 
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $35,880.00 per year from the priority date of April 30,2001: 
In 2001, the Form 1120 stated taxable income loss' of <$5,320.00>.' 
In 2002, the Form 1 120 stated taxable income loss of <$7,092.00>. 
In 2003, the Form 1120 stated taxable income of $54,333.00. 
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. 
In 2001, the Form 1120 stated taxable income loss of <$5,320.00>. The petitioner paid the 
beneficiary $20,55 8.49 in 200 1. The proffered wage is $35,880.00 per year. The sum of the 
taxable income loss and the wages paid is less than the proffered wage. 
In 2002, the Form 1120 stated taxable income loss of <$7,092.00>. The petitioner paid the 
beneficiary $16,994.19 in 2002. The proffered wage is $35,880.00 per year. The sum of the 
taxable income loss and the wages paid is less than the proffered wage. 
In 2003, the Form 1120 stated taxable income $54,333.00. The petitioner paid the 
beneficiary $28,805.16 in 2003. The proffered wage is $35,880.00 per year. The sum of the 
taxable income and the wages paid is more than the proffered wage. 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage at any time between the years 2001 through 2002 for which the petitioner's tax returns 
are offered for evidence. Also, in the subject case the petitioner has not paid the beneficiary the proffered 
wage in tax years 200 1,2002 and 2003. 
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. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120 federal tax return. The petitioner's year-end 
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage. 
Examining the Form 1 120 U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each of 
those returns indicates the following: 
IRS Form 1 120, Line 28. 
The symbols <a number> indicate a negative number, or in the context of a tax return or other 
financial statement, a loss, that is below zero. 
According to Barron's Dictionary of Accounting Terms 117 (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 118. 
In 2001, petitioner's Form 1120 return stated current assets of $0.00 and $32,685.00 in 
current liabilities. Therefore, the petitioner had <$32,685.00> in net current assets. Since the 
proffered wage is $35,880.00 per year, this sum is less than the proffered wage. 
In 2002, petitioner's Form 1120 return stated current assets of $43.00 and $16,754.00 in 
current liabilities. Therefore, the petitioner had <$16,711.00> in net current assets. Since the 
proffered wage is $35,880.00 per year, this sum is less than the proffered wage. 
In 2003, petitioner's Form 1 I20 return stated current assets of $7,091.00 and $14,715.00 in 
current liabilities. Therefore, the petitioner had <$7,624.00> in net current assets. Since the 
proffered wage is $35,880.00 per year, this sum is less than the proffered wage. 
Therefore, for the period 2001 through 2003 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 ability to pay the beneficiary 
the proffered wage at the time of filing through an examination of its net current assets. 
Counsel asserts in his brief accompanying the appeal that there are other ways to determine the petitioner's 
ability to pay the proffered wage from the priority date. According to reg~ulation,~ copies of annual reports, 
federal tax returns, or audited financial statements are the means by which petitioner's ability to pay is 
determined. 
Counsel asserts that the petitioner's assets evidence the ability to pay the proffered wage. Although counsel 
characterized them as net current assets, the amount she uses is the figure for the petitioner's total assets. We 
reject the petitioner's assertion that the petitioner's total assets should have been considered in the 
determination of the ability to pay the proffered wage. 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. 
Counsel advocates the use of the cash balance of the business accounts to show the ability to pay the proffered 
wage. Counsel's reliance on the balances in the petitioner's bank account is misplaced. First, bank statements 
are not among the three types of evidence, enumerated in 8 C.F.R. Q 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 has not demonstrated why the documentation specified at 8 C.F.R. Q 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 hnds reported on the petitioner's bank statements somehow 
reflect additional available hnds that were not reflected on its tax return, such as the cash specified on Schedule L 
that will be considered below in determining the petitioner's net current assets. 
In the totality of all the evidence submitted in this case, there is evidence to demonstrate that the petitioner's 
business was in an unprofitable period in 2001 and 2002. For the years 2001 through 2002, the taxable 
income loss stated by the petitioner was <$5,320.00>, and, in 2002, the Form 1120 stated taxable income loss 
of <$7,092.00>. The net current asset value for years 2001, 2002, and 2003 is negative, <$32,685.00>, 
<$16,7 1 1.00>, and, <$7,624.00> respectively. According to evidence submitted, the petitioner employed the 
beneficiary at an hourly rate of $14.50 per hour that is $2.75 under the proffered hourly wage rate. According 
8 C.F.R. Q 204.5(8)(2). 
to the W-2 Wage and Tax Statements submitted the petitioner paid the beneficiary $20,558.49 in 2001; in 
2002, $16,994.19; and, in 2003, $28,805.16. For the years examined, the petitioner has not paid the 
beneficiary the proffered wage. 
Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), 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 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 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. 
Counsel attempts to distinguish what she contends is the present financial circumstances of the petitioner 
from the case present Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Texas 1989), and, K. C.P. Food 
Co., Inc. v. Suva, 623 F.Supp. 1080 (S.D.N.Y. 1985). Contrary to counsel assertions, the courts both the court 
held that the Service 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. Here, counsel desires CIS to disregard 
the financial evidence submitted by the petitioner that it could not pay the proffered wage for years 2001 and 
2001 from taxable income, nor from its net current assets in years 2001,2002 and 2003. 
Unusual and unique circumstances have not been shown to exist in this case to parallel those in Sonegawa, to 
establish that the period examined was an uncharacteristically unprofitable period for the petitioner. By the 
evidence presented, the petitioner has not proven its ability to pay the proffered wage. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the 2001 and 2002 
corporate tax returns as submitted by petitioner that shows that the petitioner has not demonstrated its ability 
to 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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.