dismissed EB-3 Case: Locksmith

US. Department of IIomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
LIC COPY 
U.S. Citizenship 
and Immigration 
In re: 
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 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 
DISCUSSION: The Director, Vermont Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner operates a business related to glass and lock repair and replacement. It seeks to employ the 
beneficiary permanently in the United States as a locksmith. As required by statute, the petition filed was 
submitted with Form ETA 750, Application for Alien Employment Certification, approved by the Department 
of Labor (DOL). As set forth in the director's July 18, 2005 denial, the case was denied based on the 
petitioner's failure to demonstrate its ability to pay the proffered labor certification wage from the priority 
date until the beneficiary obtains permanent residence. 
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 evidence in the record, including new evidence properly submitted upon appeal.' 
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 the decision. 
Further elaboration of the procedural history will be made only as necessary. 
The petitioner has filed to obtain permanent residence and classifi the beneficiary as a skilled worker. Section 
203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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 petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 CFR 5 204.5(d). Therefore, 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. 5 204.5(g)(2). 
The regulation 8 C.F.R. fj 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. 
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. tj 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). 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 25, 
2001. The proffered wage as stated on Form ETA 750 for the position of a locksmith is $19.62 per hour, 40 
hours per week, with allowed overtime as needed at a rate of $29.43 per hour. The basic rate would be 
equivalent to $40,809.60 per year. The labor certification was approved on July 21, 2003, and the petitioner 
filed the 1-140 on the beneficiary's behalf on October 10, 2003. On the 1-140, counsel listed the following 
information related to the petitioning entity: date established: October 14, 1980; gross annual income: 
$955,808; net annual income: $26,06 1; and current number of employees: not listed. 
On January 7, 2003, the director issued a Request for Additional Evidence ("RFE") to submit additional 
evidence related to the petitioner's ability to pay, including W-2 Forms if the petitioner employed the 
beneficiary; and for the petitioner to indicate whether the position the beneficiary would fill was a new 
position. The RFE also requested that the petitioner identify the person that the beneficiary would replace, 
and when that individual ceased employment, and to submit Forms 941 for the time period in question. The 
petitioner responded. Following consideration of the petitioner's response, on July 18, 2005, the director 
denied the case as the petitioner failed to demonstrate that it could pay the proffered wage from the priority 
date until the beneficiary obtains lawful permanent residence. The petitioner appealed to the AAO. 
We will examine the petitioner's ability to pay based on information in the record and then consider the 
petitioner's additional arguments on appeal. First, in determining the petitioner's ability to pay the proffered 
wage during a given period, Citizenship & Immigration Services (CIS) will 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 case at hand, on Form ETA 750B, signed by the beneficiary on January 20, 2001, the beneficiary did 
not list that he has been employed with the petitioner. On appeal, the petitioner submitted the beneficiary's 
W-2 Form for 2004 exhibiting the petitioner's payment to the beneficiary of $26,000. The petitioner did not 
submit W-2 statements for any other year, and indicated that it began to employ the beneficiary in 2004. The 
amount paid to the beneficiary will be considered as partial payment of the proffered wage for the year 2004, 
but alone would be insufficient to document the petitioner's ability to pay the proffered wage. The petitioner 
would need to demonstrate its ability to pay the full proffered wage for the years 2001, 2002, and 2003, and 
demonstrate that it could pay the difference between the proffered wage and the wages that the petitioner 
already paid for 2004. 
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. 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), afl'd, 703 F.2d 57 1 (7th Cir. 1983). 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. 
Page 4 
The record demonstrates that the petitioner is an S corporation. Where an S corporation's income is exclusively 
from a trade or business, CIS considers net income to be the figure for ordinary income, shown on line 21 of 
page one of the petitioner's Form 1120s. The instructions on the Form 1 120S, U.S. Income Tax Return for an 
S Corporation, state on page one, "Caution, Include only trade or business income and expenses on lines la 
through 21." Where an S corporation has income from sources other than from a trade or business, net 
income is found on Schedule K. The Schedule K form related to the Form 1120 states that an S corporation's 
total income from its various sources are to be shown not on page one of the Form 1120S, but on lines 1 
through 6 of the Schedule K, Shareholders' Shares of Income, Credits, Deductions, etc. See Internal Revenue 
Service, Instructions for Form 1120S, 2003, at http://www.irsgov/pub/irs-03lil 120s.pdf7 Instructions for Form 
1 1 20S, 2002, at http://www.irs.gov/pub/irs-02/i 1 1 20s.pdf7 (accessed February 1 5, 2005). The petitioner lists 
only income from its business so that we will take the income from line 21: 
Tax year 
 Net income or (loss) 
2003 not submitted2 
2002 $26,06 1 
200 1 $21,821 
The petitioner's net income would not allow for payment of the beneficiary's proffered wage in any of the 
above years. 
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 the difference between the petitioner's current assets 
and 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 on the Forms 1 120s. 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, and evidences the petitioner's ability to pay. The net current assets would 
be converted to cash as the proffered wage becomes due. 
Tax year Net current assets 
2002 -$71,186 
200 1 -$70,625 
Following this analysis, the petitioner's federal tax returns shows that the petitioner similarly lacks the ability 
to pay the proffered wage in either year based on net current assets as well. 
On appeal, the petitioner offers a letter stating that the beneficiary will replace terminated workers and, 
therefore, the petitioner has the ability to pay the proffered wage. If the petitioner can establish that the 
beneficiary will be replace another worker performing the duties of the proffered position, the wages paid that 
employee may be used to demonstrate the petitioner's ability to pay the wage proffered. The petitioner must 
The petitioner did not submit its 2003 federal tax return, which would not have been available at the time 
of filing the 1-140 Petition, but should have been available at the time of the petitioner's response to the RFE, 
and would have been available at the time that the petitioner filed the appeal. 
Page 5 
document the other worker's position, duty, and termination. If that employee performed other kinds of work, 
then the beneficiary could not have replaced him or her.3 
The petitioner provides that the following individuals were employed as locksmiths, are no longer employed, 
and therefore, the wages paid would be available to pay the beneficiary the proffered wage based on the 
following W-2 Forms: 
Year 
- 
200 1 
2002 
2003 
2004 
Counsel provides that the beneficiary will specifically replace 
 who left the petitioner's 
employment in December 2004. First, we note that the assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). Further, we note that the petitioner provided a letter dated June 11, 2004, in response to the RFE 
request in which the petitioner indicated that 
 "was no longer employed." The information 
provided on appeal that 
 employment in December 2004, therefore 
conflicts and raises an issue of credibility regarding whether the petitioner's June 1 1, 2004 letter was accurate 
regarding employment status, and the availability of those wages to be used to pay the 
proffered wage. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
 It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591 -592 (BIA 1988). 
Similarly, this inconsistency raises issues whether the other indicated employees are still employed, or when 
the employees left the petitioner's employment. The petitioner did not indicate whether the above employees 
were employed on a full-time or a part-time basis, or when their employment ceased. If the employees were 
all full-time employees, it would not be credible that the petitioner has lost three full-time employees and has 
not replaced them, or that one worker, the beneficiary would perform the work of all three. Additionally, the 
director requested that the petitioner provide Forms 941 Quarterly wages, which would indicate quarterly 
wages paid, and the petitioner's number of employees. State quarterly tax filings may have provided the 
names of employees paid. Such evidence may have allowed us to conclude whether the above indicated 
employees truly had ceased employment with the petitioner. The petitioner did not provide any payroll 
records, or evidence of termination. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
Further, the purpose of the instant visa category is to allow petitioners to hire foreign workers for which 
U.S. workers are unavailable. If the petitioner, as a matter of choice, replaced, or will replace U.S workers 
with foreign workers, such an action would be contrary to the purpose of the visa category. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Similarly, the petitioner contends that it has the ability to pay based on combining wages paid to others, and 
the petitioner's net income. For 2001, the petitioner adds the wages paid to a former employee, $12,480, to 
the petitioner's net income, $2 1,82 1, to the petitioner's cash assets, $26,203, to reach a total of $60,504; for 
2002 the petitioner adds prior wages of $12,480, to net income, $26,061, to cash assets $33,107 for a total of 
$71,558.~ Based on above, the petitioner has not sufficiently documented that the beneficiary will serve as a 
replacement for an employee or employees that left. Further, we have considered the petitioner's net income 
above, as well as the petitioner's cash assets in the net current assets calculation. For 2003, the petitioner did 
not submit its tax return and adds only wages paid to others together, $12,480 and $1 1,700 to reach $24,180, 
which is less than the proffered wage. For 2004, the petitioner did not submit its tax return, and the petitioner 
adds wages paid to other employees, $1 1,280, $1 5,600, $10,400, and wages paid to the beneficiary of $26,000 
to reach $63,280. As the petitioner has not adequately documented the replacement of workers, only the 
wages paid to the beneficiary will be considered, which is less than the proffered wage, and was considered 
above. 
The petitioner's president additionally indicated that his salary was $1 1,700 in 2003 and $15,500 in 2004. 
The relevance of this information is not clear. Past wages cannot be used to demonstrate the ability to pay the 
proffered wage, unless the petitioner is able to clearly demonstrate that the employee will serve to replace 
another. The beneficiary would be employed as a locksmith, not as the company president. The record does 
not contain any information that the president is the company's sole shareholder and that he may allocate 
company funds as needed. The record does not indicate that the president is willing or able to waive all or 
part of his future salary to pay the beneficiary the proffered wage. 
Further, we note that CIS records show that the petitioner has filed an 1-140 for a second beneficiary. The 
petitioner would need to be able to demonstrate that it can pay the proffered wage to all petitioned for 
employees. Based on the foregoing, we would not conclude that the petitioner can pay for one employee, and 
would not be able to demonstrate the ability to pay for both sponsored beneficiaries. 
Further, the petitioner's formula of adding wages paid, net income, and cash assets mixes concepts of 
accrual and cash basis accounting by seeking to combine net income and net current assets. Net current assets 
are the difference between a corporation's current assets and current liabilities. Net current assets may 
properly be considered in determining a petitioner's ability to pay the proffered wage. Because of the nature 
of net current assets, however, demonstrating the ability to pay the proffered wage with net current assets is 
truly an alternative to demonstrating the ability to pay the proffered wage with income and wages actually 
paid to the beneficiary. Net current assets are not cumulative with income, but must be considered 
separately. Income is viewed retrospectively, and net current assets are viewed prospectively. For example, 
2001 income which was greater than the proffered wage would indicate that a petitioner could have paid the 
wages in 2001 out of its income. Net current assets at the end of 2001 which are greater than the proffered 
wage indicate that the petitioner anticipates receiving roughly one-twelfth of that amount each month, and 
that it anticipates being able to pay the proffered wage out of those receipts. Therefore, the amount of the 
petitioner's net income is not added to the amount of the petitioner's net current assets in the determination of 
the petitioner's ability to pay the proffered wage. 
Counsel provided no further documentation or additional federal tax returns to demonstrate the petitioner's ability 
to pay the proffered wage, and did not raise any additional arguments on appeal. 
Based on the foregoing, we find that the petitioner has failed to document that it can pay the beneficiary the 
proffered wage from the priority date until the beneficiary obtains permanent residence. Accordingly, the 
petition was properly denied. 
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.