dismissed EB-3 Case: Machine Shop

U.S. Department of HomeJand Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICcopy
!
FILE: WAC-03-2l7-53393 Office: CALIFORNIA SERVICE CENTER Date: SEP 2 9 2006
INRE: Petitioner:
Beneficiary:
PETITION: Petition for Alien Worker as a Skilled Worker or Professional Pursuant to § 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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC-03-217-53393
Page 2
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition
will remain denied.
The petitioner is a machine shop. It seeks to employ the beneficiary permanently in the United States as a
polisher. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien
Employment Certification, approved by the Department- of Labor (DOL). The director determined that the
petitioner had not established that it had the ability to pay the beneficiary the proffered wage as indicated on
the Form ETA 750 and that the petitioner failed to provide evidence to prove the beneficiary's two years of
qualifying experience. The director denied the petition accordingly.
On' appeal, counsel submits a brief statement and resubmits evidence in the record.
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 ofprospective 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.
Thepetitioner 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 C.F.R. §
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.
Comm, 1977).
Here, the Form ETA 750 was accepted on March 28, 2000. The proffered wage as stated on the Form ETA
750 is $10.97 per hour ($22,817.60 per year). The Form ETA 750 states that the position requires 2 years of
experience in the job offered.
On the petition, the petitioner claimed to have been established in 1967, and to currently employ 18 workers.
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. According
to the tax returns in the record, the petitioner's fiscal years last from March 1 to February 28. On the Form
. ETA 750B signed by the beneficiary on May 11,2000, he did not claim to have worked for the petitioner.
The petitioner submitted the following documents as supporting documentation regarding its ability to pay
with the initial filing: Form 1120 U.S. Corporation Income Tax Returns for 1999 through 2002.
WAC-03~217 -53393
Page 3
On May 3, 2004 , because the director deemed the ' evidence submitted insufficient to demonstrate the
petitioner's continuing ability to pay the proffered wage beginning on the priority date, the director requested
additional evidence (RFE) pertinent to that ability. The director specifically requested the petitioner's 2003
tax return and Form DE-6 Quarterly Wage Reports for the last four quarters.
In response, the petitioner submitted the petitioner's tax return for 2002 again , and Form 1065 U .S. Return of
Partnership Income for 2003 filed by American Made , and Form DE -6 for the second through fourth quarters
of 2003 and the first quarter of 2004 filed by American Made Motorcycle.
Because the petitioner submitted financial documents from another business entity to establish its ability to
pay the proffered wage, the director issued a second RFE on August 30, 2004 . The director's second RFE
requested legal documentation showing American Made is a successor -in-interest to or DBA of the
petitioner.
In response to the second RFE , counsel submitted a letter from the petitioner requesting change of the
employer, business license for American Made , and uncertified Form ETA 750 for American Made and the
beneficiary.
On January 13 ,2005 the director determined that the petitioner did not establish that it had the ability to pay
the proffered wage beginning on the priority date.
On appeal counsel argues that the documents submitted established the petitioner's ability to pay the proffered
wage.
The record of proceeding shows that ' the petitioner, Cavallo & Cavallo, Inc. , .was incorporated as a C
corporation on February 19 , 1988 with federal employer identification number (FEIN): 33-0281170 and is
doing business as Production Engineering & Machine at 8575 Red Oak Street, Rancho Cucamonga ;
California. The petitioner using the business name of Production Engineering & Machine applied and was
approved for a labor certification in the position of polisher on behalf of the beneficiary. The petitioner filed
the instant petition based on the approved labor certification. The petitioner submitted the beneficiary's
compensation documents, and American Made 's business and financial ,documentation to establish the
continuing ability to pay the beneficiary the proffered wage in this case. The form 1065 tax return shows that
American Made was established on January 1, 1997 as a domestic general partnership with _
_ nd is doing business at alifornia. The record contains
no evidence that the petitioner is doing business as Amer ican Made, nor does American Made qualify as a
successor-in-interest to the instant petitioner. This status requires documentary evidence that the successor­
in-interest has assumed all of the rights , duties, and obligations of the petitioning company. A letter from the
petitioner "request[ing] a change in the applicant / petitioner for [the beneficiary]" and a new ETA 750 form ,
without certification from DOL , listing American Made as an employer are not sufficient to establish that
American Made is a successor-in-interest to the petitioner. Nor does the fact that the same individual owns
100% shares of both business entities establish that American Made is a successor-in-interest to the petitioner.
In the instant case , the petitioner failed to establish that American Made is a DBA of the petitioner or
successor-in-interest to the petitioner. Consequently , the petitioner cannot establish its continuing ability to
pay the proffered wage with income or assets of American Made. Therefore , the AAO will not consider any
financial documentation of American Made in determining the petitioner 's ability to pay the proffered wage
from the beginning on the pr iority date.
WAC03-217-53393
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In addition , in order to maintain the original priority date , a successor-in-interest must demonstrate that the
predecessor had the ability to pay the proffered wage , and the successor-in-interest must establi sh the
financial ability of the predecessor enterprise to have paid the certified wage at th e priority date . See Matter
ofDial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm . 1986). Therefore , the petitioner in the instant case
must demonstrate its ability to pay the proffered wage with its own net income or net current assets .
Counsel 's reliance on income and assets of American Made to establish the pet itioner's continuing ability to
pay the proffered wage is misplaced. '
Thus, beyond the decision of the director, the AAO 'determines that American Made is not a successor-in­
interest to the petitioning entity in this case. An application or petition that fails to comply with the technical
requirements of the law may be denied by the AAO even if the Service Center does not identify all of the
grounds for denial in the initial decision. See Spenc er Enterprises, Inc. v. United States, 299 F. Supp. 2d
1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n . 9
(2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis).
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 submitted the beneficiary 's
pay stubs from American Made dated from February 13 , 2004 to January 14 , 2005 showing the beneficiary
was paid at the rate of $12.50 per hour during this period. However, as previously di scussed, the petitioner
did not establish that American Made is a DBA of or successor-in-interest to the petitiorier, therefore, wages
paid to the beneficiary by American Made cannot establish the petitioner 's ability to pay the proffered wage
through the method of wage paid. The petitioner did not submit W-2 forms or any other documentary
evidence that it paid any compensation to the beneficiary in the year of the priority date through the present.
Therefore, the petitioner did not establish that it employed and paid the beneficiary the full proffered wage
from the priority date.
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. Etatos 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.CP . FoodCo ., Inc. v. Sava, 623 F. Supp. 1080
(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).
Counsel 's reliance on the petitioner 's gross receipts and wage expense is misplaced. Showing that the
petitioner 's gross receipts exceeded the proffered wageis insufficient. Similarly , showing that the petitioner
paid,wages in excess of the proffered wage is insufficient.
In K.CF. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Imm igration 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
arguinent that the Service should have considered income before expenses were paid rather than net income . .
The court in Chi-Feng Chang further noted: '
WAC-03-217-53393
Page 5
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 oftax 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 contains copies of the petitioner's Form 1120 U.S. Corporation Income Tax Returns for 1999
through 2002 and American Made's Form 1065 U.S. Return of Partnership Income for 2003. As American
Made is not a DBA of or successor-in-interest to the petitioner, American Made's 2003 tax return cannot be
considered. The priority date here is March 28,2000 and the petitioner's 1999 tax return only covers its fiscal
year of 1999 from March 1, 1999 to February 28, 2000, therefore, the 1999 tax return is not necessarily
dispositive. The tax returns for 2000 through 2002 demonstrate the following financial information
concerning the petitioner's ability to pay the proffered wage of $22,817.60 per year from the priority date to
2002.
In 2000, the Form.l120 stated net income! of$22,029.
In 2001, the Form 1120 stated net.income of$4,168.
In 2002, the Form 1120 stated net income of $(8,260).
Therefore, for the fiscal years 2000 through 2002, the petitioner did not have sufficient net income to pay 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 win 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 liabilities. 2 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 15 through 17. 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 were $(44,558) in 2000, $(60,437) in 2001, and $(81,884) in 2002. Therefore, the petitioner did not
have sufficient net current assets in 2000 through 2002 to pay the proffered wage of $22,817.60.
I Taxable income before net operating loss deduction and special deductions as reported on Line 28.
2 According to Barron's Dictionary ofAccounting Terms 117 (3
rd
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.
WAC-03-217-53393
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The record before the director closed on July 23, 2004 with the receipt by the director of the petitioner's
submissions in response to the RFE. As of that date the petitioner's federal tax return for 2003 should have been
available. However, the petitioner did not submit its 2003 tax return. Therefore, the petitioner failed to establish
its ability to pay the proffered wage in 2003. Furthermore, the regulation at 8 C.F.R. § 204.5(g)(2) states that
the director may request additional evidence in appropriate cases. Although specifically and dearly requested
by the director in the RFE dated May 3, 2004, the petitioner declined to provide copies of its 2003 tax return.
The tax returns would have demonstrated the amount of taxable income the petitioner reported to the IRS and
further reveal its ability to pay the proffered wage. The petitioner's failure to submit these documents cannot
be excused. The failure to submit requested evidence that precludes a material line of inquiry shall be
grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14).
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 proffered wage as
of the priority date through an examination of wages paid to the beneficiary, or its net income or net current
assets. Further, the portion of the director's decision regarding the petitioner's continuing ability to pay the
proffered wage beginning on the priority date is affirmed.
The director also denied the petition because the petitioner failed to demonstrate that the beneficiary is
qualified for the proffered position. A labor certification is an integral part of this petition, but the issuance of a
Form ETA 750 does not mandate the approval of the relating petition. To be eligible for approval, a beneficiary
must have all the education, training, and experience specified on the labor certification as of the petition's
priority date. 8 C.FR § 103.2(b)(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting
Reg. Comm. 1977); Matter ofKatigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). The priority date 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. § 204.5( d). The priority date in the instant petition is March 28, 2000.
The certified Form ETA 750 in the instant case states that the position of polisher requires two (2) years of
experience in the job offered. On the Form ETA-750B signed by the beneficiary on May 11, 2000, he
represented that he was unemployed from April 1998 to the present, worked for Pro 1 at 2700 Melbourne
Avenue, Pomona,CA forty hours a week as a polisher for one year and nine months from June 1996 to March
1998, and worked for Brico Metal Finishes at 12416 Benedick Avenue, Downey, CA forty hours a week as a
polisher for eight years and five months from January 1988 to June 1996. The beneficiary signed the form on
May 11,2000 under penalty of perjury.
Theregulation at 8 C.F.R. § 204.5(g)(1) states in pertinent part:
Evidence relating to qualifying experience or training shall be in the form of letter(s) from
current or former employer(s) or trainer(s) and shall include the name, address, and title of the
writer, and a specific description of the duties performed by the alien or of the training received.
If such evidence is unavailable, other documentation relating to the alien's experience or training
will be considered.
The instant 1-140 petition was-submitted with the following items concerning the beneficiary's qualification as
required by the above regulation: Amendment and Clarification of Form 750B from Angelica Cendejas, a
legal assistant of counsel, an affidavit of the beneficiary with W-2 forms from ••••••••
•••••••• ' and an experience letter from with beneficiary's W-2 form and
paystubs from that employer.
date started
WAC-03-217-5339}
Page 7
The amendment and clarification of Form 750 is signed by , a legal assistant of counsel's
office and addressed to Immigration Officer at California Service Center states in pertinent part:
Please note that due to a typographical mistake made by the office personnel; item #15b on
form 750B should read as follow:
Work History:
The 750B #15b,
06/1998 and left on 06/2000.
The 750B#15C, •••••••••• date started 01/1997 date left was 06/1998.
The beneficiary clarifies in his affidavit executed on April 13, 2003 that:
I have worked at Pro-One Performance Manufacturing, Inc. at
since 1998 to 2000, as a Polisher. Being a person t at a ways s owe
responsibility and honesty, always with efficiency, punctuality, at all time. Full time' (40
hours a week).
The experience letter from Brico Metal Finishing dated May 21, 2003, signed by _ as the owner
states in pertinent part:
[The beneficiary] was formerly employed by om January 1997 until
June 1998. He was a fulltime worker (40 hrs. or more) per week. His pay was approximately
$8.501hr.
Because the evidence submitted did not establish the beneficiary's prior experience, the director issued a FRE
on May 3, 2004. In his RFE, the director states in pertinent part: .
Submit evidence to establish that the beneficiary possesses the experience listed on the Form
ETA 750 (Application for Alien Employment Certification). Evidence of-prior experience
should be submitted in 1etterform on the previous employer's letterhead showing the name
and title of the person verifying this information. This verification should states the
beneficiary's title, duties, and dates of employment/experience and number of hours worked
per week.
Note: The employment verification from states the beneficiary was
employed from January 1997 through June 1998: The original Application for Alien
Employment Certification (Form ETA 750) indicates a different date. Please clarify the
discrepancy and submit proof of the beneficiary's employment history with ••••••
. .;. Provide letters, contracts and pay statements to verify the beneficiary worked for
the listed employer. Please include a current point of contact, current address and current
phone number at which [CIS] or other U.S. Government agency can contact the employer.
Evidence submitted by
(Emphasis in original).
does not state the beneficiary's title and duties.
WAC-03-2l7-53393
Page 8
In response to the director's RFE dated May 3, 2004, counsel submitted another correction letter and copies
of affidavit of the beneficiary and experience letter from •••••••••
In his denial notice, the director determined that the letter from and the affidavit from
the beneficiary do not state the beneficiary's title and duties. Therefore, CIS was not able to determine
whether the duties performed in his previous employment match those of the offered position. In addition,
there is a discrepancy with the beneficiary's employment dates.
Counsel argues on appeal that the letter from previous employer stating that the beneficiary was employed at
•••••••• from January 1997 through June 1998, full time employee (40) hours a week and the
affidavit signed under oath by the beneficiary which states that he was employed with••••••••
.... _2.;..from 1~98 until 2000, supported by forms W-2's as well as pay stubs proved the two
years of qualifying employment experience as a Polisher.
The first issue that needs to be discussed is whether the petitioner established the beneficiary's requisite
experience with under the requirement set forth at 8 C.F.R. § 204.5(g)(1). The
regulation requires such evidence must be in the form of a letter from a current or former employer or trainer
and must include the name, address, and title of the writer, and a specific description of the duties performed
by the alien or of the training received. The record of proceeding contains an experience letter dated May 21,
2003 from n ;; I J f the owner of submitted with the initial filing. As the director
correctly pointed out, this letter does not state the beneficiary's title and duties, and as such does not meet the
requirements set forth at 8 C.F.R. § 204.5(g)(1), and cannot be considered as a primary evidence to establish
the beneficiary's requisite experience. Counsel argues that the attached W-2 forms and pay stubs support the
contents of the letter. However, neither W-2 form nor pay stubs indicate the beneficiary's title and duties. In
addition, the letter says that the beneficiary worked for the employer from January 1997 until June 1998 and
the pay stub shows the beneficiary's payment with this employer ended on May 30, 1998. Both the letter and
the pay stubs would have only verified one year and five months of employment experience if the letter had
met the requirements. That would not be sufficient for the two years of the requisite experience as required
by the certified labor certification in the instant case. Moreover, the regulation at 8 C.F.R. § 204.5(g)(2)
states that the director may request additional evidence in appropriate cases. Although specifically and
clearly requested by the director in his RFE dated May 3, 2004, the .petitioner declined to provide new or
additional evidence to substantiate the beneficiary's experience with . . in response to the
RFE. The regulatory-prescribed evidence of requisite experience would have demonstrated that the
beneficiary possessed the required two years of experience in the job offered and further revealed the
beneficiary's qualifications for the proffered position. The petitioner's failure to submit these documents
cannot be excused. The failure to submit requested evidence that precludes a material line of inquiry shall be
grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14).
The regulation requires a letter from a current or former employer or trainer as primary evidence relating to
qualifying experience or training, and only allows consideration of other documentation relating to the alien's
experience or training as secondary evidence in the circumstance that such primary evidence is unavailable.
In the instant case, the petitioner submitted an affidavit from the beneficiary relating to his experience with
. with the initial filing without explanation why the primary
evidence required by the regulation is unavailable. In response to the RFE, counsel claimed that: "due to lost
documentation my client is unable to provide additional documents." However, the beneficiary losing
documents does not demonstrate that the experience letter from the prior employer is unavailable. Therefore,
without reasonable explanation why the primary evidence required by the regulation is not available any
I
•• •
WAC-03-217-53393
Page 9
secondary evidence relating to the beneficiary's requisite experience is not acceptable. The non-existence or
other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i).
As previously noted, the affidavit of the beneficiary does not include a job description as required by the
regulation. The attached W-2 forms do not provide support in this aspect. Therefore, as the director stated in
.his decision, CIS is unable to determine whether the duties performed in his previous employment match
those of the offered position ... In addition, the affidavit states that the beneficiary worked for ••••
from 1998 to 2000. Without indicating the starting and ending
ished that the beneficiary possessed the two years of requisite
experience. The beneficiary did not submit his 1998 W-2 form to support his employment in 1998, but
submitted theW-2 forms for 1999 and 2000. Because the affidavit does not indicate the beneficiary's
compensation rate, the amount paid to the beneficiary by cannot provide exact information on how
many months or hours the beneficiary worked in that year. However, it is most unlikely that the total amount
of $807.25 shown on the W-2 form for 2000 established that the beneficiary worked for the employer the
. whole year of 2000. The only possible approved experience would be the year of 1999 even if the affidavit of
the beneficiary could be considered as primary evidence for his prior experience. Because of these defects,
the affidavit of the beneficiary will be given little weight in these proceedings.
Therefore, the AAO concurs with the director's determination that the petitioner did not establish with
regulatory-prescribed evidence the beneficiary's prior two years of experience as a polisher.
Counsel's assertions on appeal cannot overcome the decision of the director. The petition will be denied for
the above stated reasons, with each considered as an independent and. alternative basis for denial. In visa
petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.