dismissed EB-3 Case: Machinist

identifliry data deleted to 
prevent clc..:, ry unwamnoed 
invasion of persorral priw 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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. 5 1153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
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 fabricates metal products. It seeks to employ the beneficiary permanently in the United States 
as a machinist. 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, the petitioner submits a brief and additional evidence.' 
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 regulation 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 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 20, 2001. The proffered wage as stated on the Form ETA 
750 is $19.50 per hour ($35,490 per year2). The Form ETA 750 states that the position requires two (2) years 
experience in the job offered. 
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. 9 103.2(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. 
2 
Based on working 35 hours per week as indicated on the Form ETA 750A. The annual salary was 
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The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the 
petition, the petitioner did not provide information on the date established, gross annual income, net annual 
income and current number of employees. 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 11, 2001, the 
beneficiary claimed to have worked for the petitioner since October 1996. 
The petitioner filed the petition without any supporting documents concerning its ability to pay the proffered 
wage. On March 30, 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 (WE) pertinent to that ability. In accordance with 8 C.F.R. 204.5(g)(2), the 
director specifically requested that the petitioner provide copies of annual reports, federal tax returns, or 
audited financial statements to demonstrate its continuing ability to pay the proffered wage beginning on the 
priority date. The director specifically requested 2001 and 2002 tax returns and the beneficiary's W-2 forms 
for 200 1 through 2003. 
In response to the director's RFE, the petitioner submitted its tax returns for 2001 and 2002, and the 
beneficiary's W-2 forms for 200 1 through 2003. 
The director denied the petition on October 1, 2004, finding that the evidence submitted with the petition and 
in response to the WE did not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
On appeal, the petitioner asserts that the event on September 11, 2001 paralyzed their business, but an 
investment in more modem equipment is bringing results. The petitioner submits unaudited financial 
statements and quarterly wage reports for the first three quarters of 2004. 
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 W- 
2 forms for 2001 through 2003. The W-2 forms show that the petitioner employed and paid the beneficiary 
$1 1,280 in 2001, $8,400 in 2002 and $8,740 in 2003. Therefore, the petitioner has not established that it 
employed and paid the beneficiary the full proffered wage during the period from the priority date through 
2003. Instead, the petitioner paid partial wages that were $24,210 less than the proffered wage in 2001, 
$27,090 less than the proffered wage in 2002 and $26,750 less than the proffered wage in 2003. The 
petitioner is obligated to demonstrate that it could pay the difference between the 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 
- - - - - - - - - - - - - 
miscalculated as $39,000 in the director's decision. 
Page 4 
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. 111. 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. 
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 wages actually paid to the beneficiary and the proffered wage from the priority date. 
In 2001, the Form 1120 stated net income3 of $2,3 16. 
In 2002, the Form 1120 stated net income of $(2,725). 
Therefore, for the years 2001 through 2002, the petitioner did not have sufficient net income to pay the 
differences of $24,210 and $27,090 between the wages paid and the proffered wage respectively. 
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 
3 
Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
4 
 According to Barron 's Dictionary of Accounting Terms 1 17 (3'd ed. 2000), "current assets7' 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 11 8. 
Page 5 
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 were $6, 697 in 2001 and $3,223 in 2002. The petitioner had insufficient net current assets to cover the 
difference of wages actually paid to the beneficiary and the proffered wage in the years 200 1 and 2002. 
Tne record before the director closed on June 21, 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 be 
available. However, the petitioner did not submit its tax return for 2003, nor did it explain why it was not 
submitted. Therefore, the petitioner did not establish its ability to pay the proffered wage for 2003 by its failure to 
submit any regulatory prescribed evidence for that year. 
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 wages 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. 
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. 
However, no unusual circumstances have been shown to exist in this case to parallel those in Matter of 
Sonegawa, 12 I&N Dec. 612 (BIA 1967), which relates to petitions filed during uncharacteristically 
unprofitable or difficult years but only in a framework of profitable or successful years. The petitioner must 
establish that 2001, 2002 and 2003 were uncharacteristically unprofitable years in a framework of profitable 
or successful years for the petitioner. The petitioner did not provide any evidence showing its profitability 
and successfulness for the years before 2001 and after 2003. 
 Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
The record of proceeding contains no evidence specifically connecting the petitioner's business decline to the 
events of September 11, 2001. A mere broad statement by the petitioner that, because of the nature of the 
petitioner's industry, its business was impacted adversely by the events of September 11, 2001, cannot by 
itself, demonstrate the petitioner's continuing ability to pay the proffered wage beginning on the priority date. 
Rather, such a general statement merely suggests, without supporting evidence, that the petitioner's financial 
status might have appeared stronger had it not been for the events of September 1 1,200 1. 
Page 6 
The petitioner argues that the beneficiary is currently working in the proffered position and is being paid the 
proffered wage and that establishes the petitioner's ability to pay. The petitioner submits its Form NJ-927, 
Employer's Quarterly Report, for the first three quarters of 2004. The quarterly reports show that the 
petitioner paid the beneficiary $10,140 each quarter for the first through the third quarters of 2004 which 
totals $30,420 in 2004, which is equal to the level of $40,560 per year. However, paying the proffered wage 
in 2004 cannot establish that the petitioner had the ability to pay the proffered wage in 2001 through 2003. 
The petitioner also submits incomplete and unaudited financial statements for a period January through 
September 2004. The financial statements include Profit & Loss and Balance Sheet only. The petitioner's 
reliance on unaudited financial records is misplaced. The regulation at 8 C.F.R. 9 204.5(g)(2) makes clear that 
where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those 
financial statements must be audited. As there is no accountant's report accompanying these statements, the 
AAO cannot conclude that they represent audited statements. Unaudited financial statements are the 
representations of management. The unsupported representations of management are not reliable evidence 
and are insufficient to demonstrate the ability to pay the proffered wage. 
The petitioner'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 
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. 
5 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.