dismissed EB-3 Case: Maintenance Mechanic

U.S. Department of IIonleland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washrngton, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
B s 
I 
FILE: EAC-04-205-5 1747 Office: VERMONT SERVICE CENTER 
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. 9 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. 
1,' 
%cL 
Robert P. Wiemann, Chief I 
j. -- 
Administrative Appeals Office 
EAC-04-205-5 1747 
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 repair and equipment company. It seeks to employ the beneficiary permanently in the 
United States as a maintenance mechanic. As required by statute, the petition is accompanied by a Form ETA 
750, Application for Alien Employment Certification (labor certification or the 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. 
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. 5 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. 5 204.5(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 C.F.R. 5 
204.5(d). 1 
Here, the Form ETA 750 was accepted on April 27, 2001. The proffered wage as stated on the Form ETA 
750 is $19.00 per hour ($39,520 per year). 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 1995 and 
to have a gross annual income of $178,949. The petitioner did not provide information about its net income 
and the number of current employees on the petition. According to the tax returns in the record, the 
1 
 The submissioi of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated iito 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. 
L 
EAC-04-205-5 1747 
Page 3 
petitioner's fiscal year is based on a calendar year. On the Form ETA 750B, signed by the beneficiary on 
March 29, 2001, the beneficiary did not claim to have worked for the petitioner. 
The petitioner submitted the petition without any evidenqe of the petitioner's ability to pay the proffered 
wage. Therefore, the director issued a request for evidence (WE) on November 1, 2004, requesting evidence 
of the petitioner's ability to pay the proffered wage as of April 27, 2001. The director specifically requested 
the petitioner's tax returns-for the years 2001 through 2003. In response the petitioner submitted tax returns 
for the years 2001 through 2003. On February 2, 2005 the director denied the petition, finding that the 
petitiotier did not establish that it had the ability to pay the proffered wage beginning on the priority date with 
its net loss from 2001 through 2003. 
 I 
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, counsel asserts that the petitioner paid total 
salaries of $333,314 in 2001, $295,327 in 2002 and $182,413 in 2003, and that these wages paid show the 
company has the ability to pay the proffered wage. In general, however, wages already paid to others are not 
available to prove the ability to pay the wage proffered to the beneficiary at the priority date of the petition and 
continuing to the present. 
The record contains a copy of the beneficiary's W-2 form for 2003 submitted on appeal. The beneficiary's 
W-2 form for 2003 shows that the petitioner paid the beneficiary $42,007.50 that year, which was greater than 
the proffered wage. Therefore, the established that it paid the beneficiary the full proffered wage in 
2003. Counsel urges CIS to consider the wages paid in 2003 as satisfying the petitioner's ability to pay. 
However, the regulation requires that a petitioning entity. demonstrate its continuing ability to pay the 
proffered wage beginning on the priority date. The petitioner must demonstiate its continuing ability to pay 
the proffered wage beginning on the priority date, which in this case is April 27, 2001. Thus, the petitioner 
must show its ability to pay the proffered wage not only in 2003, when counsel claims that the petitioner 
actually began paying the proffered wage rate, but it must also show its continuing ability to pay the proffered 
wage in 2001 and 2002. Demonstrating that the petitioner is paying the proffered wage in a specific year may 
suffice to show the petitioner's ability to pay for that year, but the petitioner must still demonstrate its ability 
-' to pay for the rest of the pertinent period of time. The petitioner is obligated to demonstrate that it could pay 
the proffered wage in 2001 and 2002. 
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 *ell 
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. 
EAC-04-205-5 1747 
Page 4 
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 Chz-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 record contains copies of the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation for 
2001 through 2003. The petitioner's tax returns demonstrate the following financial information concerning 
the petitioner's ability to pay the proffered wage of $39,520 per year from the priority date in 2001 to 2002: 
In 200 1 Form 1 120s states net loss2 of $357,726; 
In 2002 Form 1120s states net loss of $205,041. 
Therefore, the petitioner did not have sufficient net income to pay the proffered wage for the years 2001 and 
2002. 
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. We reject, however, counsel's assertion that the petitioner's total assets 
should have been considered in the determination of the ability to pay the proffered wage. 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 liabilitie~.~ 
 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 
Ordinary income (loss) from trade or business activities as reported on Line 2 1. 
3~ccording to Barron Is Dictionary of Accounting Terms 117 (3rd 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 1 18. 
EAC-04-205-5 1747 
Page 5 
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. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield that the petitioner had 
current assets of $300,241 but current liabilities of $502,776, and thus the net current assets were $(202,535) 
in 2001; the petitioner had current assets of $496,862 but current liabilities of $869,807, and thus the net 
current assets were $(372,945) in 2002. Therefore, the petitioner did not have sufficient net current assets to 
pay the proffered wage for the years 2001 and 2002. 
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 
from 2001, the year of the priority date to 2002 through an examination of wages paid to the beneficiary, or 
its net income or net current assets. 
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 from the day 
the Form ETA 750 was accepted in 2001 to 2002. 
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.