dismissed EB-3 Case: Landscaping

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
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. 3 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. 
Robert P. Wiemann, Director 
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 (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a landscaping business. It seeks to employ the beneficiary permanently in the United States 
as a supervisory landscape gardener. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, 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 statement and additional evidence. 
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 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 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 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 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 23, 2001. The proffered wage as stated on the Form ETA 
750 is $17.97 per hour ($32,705.40 per year based on a 35-hour work week). The Form ETA 750 states that 
the position requires two years of experience in the proffered position or related landscaping occupations. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the 
petition, the petitioner claimed to have been established in 1991, to have a gross annual income of $361,991, 
and to currently employ twelve workers. According to the tax returns in the record, the petitioner's fiscal year 
is based on a calendar year. On the Form ETA 750B, signed by the beneficiary on April 16, 2001, the 
beneficiary claimed to have worked for the petitioner since March 1999. 
With the petition, the petitioner submitted its Form 1120S, U.S. Income Tax Return for an S Corporation for 
2001 and a W-3 form reflecting total wages to its employees. 
Without issuing a request for evidence or notice of intent to deny, the director denied the petition on July 20, 
2004, finding that the evidence submitted with the petition did not establish that the petitioner had the 
continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel objects to the director not seeking additional evidence prior to denying the petition and 
submits a letter from the petitioner's certified public accountant, additional tax returns and W-3 forms, and 
copies of the beneficiary's W-2 forms issued by the petitioner for 2001,2002, and 2003 reflecting wages paid 
in the amount of $23,909.50, $28,305, and $32,780.43 in those years, respectively. The petitioner's 
accountant states in his letter accompanying the appeal that total wages paid, depreciation, and the seasonal 
nature of the petitioner's business should be considered when determining its continuing ability to pay the 
proffered wage. 
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 established that it employed 
and paid the beneficiary $23,909.50 in 2001, $28,305 in 2002, and $32,780.43 in 2003. Therefore, the 
petitioner has not established that it employed and paid the beneficiary the full proffered wage in 2001 and 
2002. Instead, the petitioner paid partial wages that were $8,795.90 less than the proffered wage in 2001 and 
$4,400.40 less than the proffered wage in 2002. The petitioner is obligated to demonstrate that it could pay 
the difference between the wages actually paid to the beneficiary and the proffered wage in 2001 and 2002. 
The petitioner demonstrated its ability to pay the proffered wage in 2003 since it actually paid a greater 
amount in wages to the beneficiary than the proffered wage in that year. 
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 contrary to the petitioner's 
accountant's appellate assertions. 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, 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. Ill. 1982), afd, 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 
contrary to the petitioner's accountant's appellate assertions. 
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 
difference between the proffered wage and wages already paid to the beneficiary of $8,795.90 in 2001 and 
$4,400.40 in 2002. 
In 2001 the Form 1120s stated net income' of -18,154 
In 2002 the Form 1120s stated net income of $22,339 
Therefore, in 2001, the petitioner did not have sufficient net income to pay the difference between the wages 
actually paid to the beneficiary and the proffered wage. However, the petitioner demonstrated its ability to 
pay the proffered wage in 2002 since its net income is greater than the difference between the wages actually 
paid to the beneficiary and the proffered wage in that year. 
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 ~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 the year in question, 2001, were -$55,833. The AAO notes that the accountant assertions 
pertaining to deductions set forth in a letter submitted on appeal refer to 2002 and 2003. 
Therefore, on 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 difference between wages 
actually paid to the beneficiary and the proffered wage through an examination of wages paid to the 
beneficiary, or its net income or net current assets. 
1 
 Ordinary income (loss) from trade or business activities as reported on Line 21. 
2 
According to Barron's Dictionary of Accounting Terms 117 (3'* 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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
Page 5 
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 during its 
priority date year, 2001, the day the Form ETA 750 was accepted for processing by the Department of Labor. 
The evidence submitted does not establish that the petitioner had the 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. 
3 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.