dismissed EB-3 Case: Luggage Repair And Shipping

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC-04-036-5 1 172 Office: VERMONT SERVICE CENTER Date: UT 2 4 2006 
IN RE: Petitioner: 
Beneficiary: 
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. $ 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-04-036-5 1 172 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a luggage repair and shipping company. It seeks to employ the beneficiary permanently in 
the United States as a manager. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification (labor certification application 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. 
Counsel filed a timely appeal with 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. 9 204.5(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 
3 204.5(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 27, 2001. The proffered wage as stated on the Form ETA 
750 is $16.00 per hour ($33,280 per year). The Form ETA 750 states that the position requires two (2) years 
experience in the job offered or two (2) years of experience in the related occupation of shipping and 
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. 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). 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. 
EAC-04-036-5 1 172 
Page 3 
receiving clerk. On the Form ETA 750B, the beneficiary claimed to have worked for the petitioner since 
January 1997. On the petition, the petitioner claimed to have been established in 1970, to have a gross annual 
income of $3 1 1 ,I 83.70, and to have a net annual income of $15 1,263.34. The petitioner did not provide 
information on the current number of its employees. 
With the petition, the petitioner submitted the first page of its Form 1120, U.S. Corporation Income Tax 
Return for 2000 pertinent to its ability to pay the proffered wage. 
The director denied the petition on October 1, 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 asserts that with evidence submitted previously and on appeal the petitioner did show the 
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 record of proceeding contains copies of 
the beneficiary's W-2 forms for 1999 through 2003. However, since the priority date in the instant case is 
April 27, 2001, the AAO will consider the beneficiary's W-2 forms for 2001 through 2003 only. The W-2 
forms show that the petitioner paid the beneficiary $24,132.00 in 200 1, $23,953.28 in 2002 and $24,35 1.92 in 
2003, which are $9,148.00 in 2001, $9,326.72 in 2002 and $8,928.08 in 2003 less than the proffered wage 
respectively. Therefore, the petitioner has not established that it paid the beneficiary the full proffered wage 
during these years. Instead the petitioner is still obligated to demonstrate that it could pay the difference of 
$9,148.00 in 2001, $9,326.72 in 2002 and $8,928.08 in 2003 between wages actually paid to the beneficiary 
and the proffered wage. 
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. 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. I080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
On appeal counsel asserts that depreciation should be added back to the net income as part of available funds 
to pay the proffered wage. Counsel's reliance on the petitioner's depreciation expense is misplaced. 
Similarly, showing that the petitioner paid wages in excess of the proffered wage or its gross receipts 
exceeded 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: 
EAC-04-036-5 1 172 
Page 4 
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 record of proceeding contains copies of the petitioner's Form 1120, U.S. Corporation Income Tax 
Return, for its fiscal years 2000 through 2003. The tax returns show that the petitioner is structured as a C 
corporation and the petitioner's fiscal year lasts from June 1 to May 31. The tax returns demonstrate the 
following financial information pertinent to the petitioner's ability to pay the proffered wage from the priority 
date: 
In the fiscal year 2000 (6/1/2000-5/31/2001), the Form 1120 stated net income' of $(30,275.54). 
In the fiscal year 2001 (6/1/2001-513 1/2002), the Form 1 120 stated net income of $25,308.47. 
In the fiscal year 2002 (61112002-513 1/2003), the Form 1120 stated net income of $(1,524.31). 
In the fiscal year 2003 (61112003-513 1/2004), the Form 1120 stated net income of $(26,186.94). 
Therefore, for the fiscal years 2000, 2002 and 2003, the petitioner did not have sufficient net income to pay 
the proffered wage of $33,280 or the difference between wages actually paid to the beneficiary and the 
proffered wage while the petitioner's net income was sufficient to cover the difference of $9,148.00 in the 
calendar year 2001 between wages actually paid to the beneficiary and the proffered wage. 
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 liabi~ities.~ 
 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. 
2 
Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
3 
 According to Barron's Dictionary of Accounting Terms 117 (3'd 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. 
EAC-04-036-5 1 172 
Page 5 
However, counsel submitted only the first page of the petitioner's tax returns for 2000 through 2003 without 
all schedules and attachments. Without the schedule L of the Form 1120, the AAO cannot assess its net 
current assets to see whether the petitioner had sufficient net current assets to pay the proffered wage or the 
difference between wages actually paid to the beneficiary and the proffered wage and further to establish its 
ability to pay in 2000, 2002 and 2003. The burden of proof in these proceedings rests solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Therefore, the petitioner failed to establish that it had 
sufficient net current assets to pay the difference between wages actually paid to the beneficiary and the proffered 
wage in its fiscal years 2000,2002 and 2003. 
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 ability to pay the beneficiary the difference 
between the wage paid and the proffered wage as of the priority date through an examination of wages paid to 
the beneficiary, or its net income or net current assets. 
On appeal, counsel asserts that the petitioner may rely on both income and assets to help demonstrate its 
ability to pay according to the language in Mr. Yates' memorandum. The AAO consistently adjudicates 
appeals in accordance with the Yates memorandum. However, counsel's understanding of the language in 
that memorandum is misplaced. The memorandum clearly uses "Net Current Assets" instead of "assets" and 
also uses "or" meaning the petitioner may rely on either its net income or net current assets, but not a 
combination of net income and net current assets. Combining the petitioner's net income with its net current 
assets to demonstrate the petitioner's ability to pay the proffered wage is also unacceptable because net 
income and net current assets are not, in the view of the AAO, cumulative. The AAO views net income and 
net current assets as two different ways of methods of demonstrating the petitioner's ability to pay the wage-- 
one retrospective and one prospective. Net income is retrospective in nature because it represents the sum of 
income remaining after all expenses were paid over the course of the previous tax year. Conversely, the net 
current assets figure is a prospective "snapshot" of the net total of petitioner's assets that will become cash 
within a relatively short period of time minus those expenses that will come due within that same period of 
time. Thus, the petitioner is expected to receive roughly one-twelfth ofits net current assets during each 
month of the coming year. Given that net income is retrospective and net current assets are prospective in 
nature, the AAO does not agree with counsel that the two figures can be combined in a meaningful way to 
illustrate the petitioner's ability to pay the proffered wage during a single tax year. Moreover, combining the 
net income and net current assets could double-count certain figures, such as cash on hand and, in the case of 
a taxpayer who reports taxes pursuant to accrual convention, accounts receivable. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax return 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. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.