dismissed EB-3 Case: Manufacturing

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
Date: MAY 0 2 2'006 
PETITION: Petition for Alien Worker as an Other Worker Pursuant to Section 203(b)(3) of the 
Immigration and Nationality Act, 8 U.S.C. 3 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. 
I 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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 pay-phone manufacturer. It seeks to employ the beneficiary permanently in the United 
States as a production supervisor. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor, accompanied the petition. 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 and denied the petition accordingly. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or seasonal 
nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 9 204.5(g)(2) states: 
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 either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profitlloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which 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 November 19, 2001. The proffered wage as stated on the Form ETA 750 is $48,672.00 per year. 
On the Form ETA 750B, signed by the beneficiary on November 5, 2001, the beneficiary claimed to have 
worked for the petitioner beginning in September 1999 and continuing through the date of the ETA 750B. 
The ETA 750 was certified by the Department of Labor on January 5,2003. 
The 1-140 petition was submitted on March 31, 2004. On the petition, the petitioner claimed to have been 
established in 1996, to currently have six employees and to have a gross annual income of $2,000,000.00. 
The item on the petition for net annual income was left blank. With the petition, the petitioner submitted 
supporting evidence. 
In a decision dated September 9, 2004, the director determined that the evidence did not establish that the 
petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence, and denied the petition. 
On appeal, counsel submits a brief and additional evidence. Counsel states on appeal that a copy of the 
beneficiary's Form W-2 Wage and Tax Statement for 2003 was not readily available when the petition was filed, 
and that a copy of that Form W-2 submitted on appeal establishes the petitioner's ability to pay the proffered 
wage. Counsel also states that the director misinterpreted the petitioner's tax return for 2002 by using the term 
"net loss" to show the results of an analysis of the balance sheet of the petitioner's Form 1120 U.S. Corporation 
Income Tax Return for 2002. 
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. 
 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 petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, 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. § 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial resources sufficient 
to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning 
business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 
612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on November 5,2001, the beneficiary claimed to 
have worked for the petitioner beginning in September 1999 and continuing through the date of the ETA 750B. 
The record contains a copy of a Form 1099-MISC Miscellaneous Income statement of the beneficiary for 2003 
which shows $1 7,000.00 in nonemployee compensation received from the petitioner that year. The record also 
contains a copy of a Form W-2 Wage and Tax Statement of the beneficiary for 2003, which shows $29,527.50 in 
employee compensation received from the petitioner that year. The total of the two amounts is $46,527.50. The 
relationship of the beneficiary's actual compensation to the proffered wage is shown in the table below. 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage. 
200 1 no W-2 or 1 099 submitted $48,672.00 $48,672.00 
2002 no W-2 or 1099 submitted $48,672.00 $48,672.00 
2003 $46,527.50 $48,672.00 $2,144.50 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 
Page 4 
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 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
1 989); 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 (7' Cir. 1983). In K.C. P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a corporation. The record contains a copy of the petitioner's 
Form 1120 U.S. Corporation Income Tax Return for 2002. The record before the director closed on March 31, 
2004 with the submission of the 1-140 petition. As of that date, the petitioner's federal tax return for 2003 was 
not yet due. Therefore the petitioner's tax return for 2002 was the most recent return available. No copy of the 
petitioner's federal tax return was submitted for 2001, which is the year of the priority date. 
Concerning 2003, the petitioner submitted a copies of the beneficiary's Form W-2 Wage and Tax Statement and 
Form 1099 Miscellaneous Income statement for 2003. However, the petitioner did not also submit a copy of the 
petitioner's Form 1 120 tax return for 2003. 
For a corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of the Form 1120 U.S. Corporation Income Tax Return. The 
petitioner's tax return for 2002 states an amount for taxable income on line 28 as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
200 1 not submitted $48,672.00* no information 
2002 $2 1,007.00 $48,672.00* -$27,665.00 
2003 not submitted $2,144.50** no information 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001 or 2002. 
** Crediting the petitioner with the $46,527.50 actually paid to the beneficiary 
in 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
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 a corporate taxpayer's current assets less its 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. 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. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L attached to the petitioner's tax return for 2002 yield the amounts for net 
current assets as shown in the following table. 
Tax Net Current Assets Wage increase needed 
year Beginning of year End of year to pay the proffered wage 
200 1 not submitted not submitted $48,672.00* 
2002 -$256,384.00 -$95,165.00 $48,672.00* 
2003 not submitted not submitted $2,144.50** 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001 and 2002. 
** Crediting the petitioner with the $46,527.50 actually paid to the beneficiary in 
2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
Counsel states that the director incorrectly described the petitioner's excess of year-end current liabilities over 
year-end current assets as a "net loss." (Motion to Reconsider, October 7, 2004, at 1, quoting Director's 
decision, September 9, 2004, at 1). Counsel states that the purpose of the balance sheet is not to show the 
petitioner's income or loss over a period, but to indicate the corporation's net gains, shareholder equities, or 
retained earnings. Counsel is correct in criticizing the director's use of the term "net loss." That term refers 
to an excess of expenses over income during the tax year. Counsel states that current assets and liabilities 
must equal each other on the balance sheet. However, counsel's statements fail to distinguish between current 
assets and total assets, and between current liabilities and total liabilities. The figures which must equal each 
other on the balance sheet are total assets and total liabilities. As noted above, CIS considers only current 
assets and current liabilities when evaluating a petitioner's ability to pay the proffered wage. In order to 
establish the petitioner's ability to pay the proffered wage in a given year, a petitioner's year-end current 
assets must exceed its year-end current liabilities by an amount at least equal to the proffered wage, or by the 
amount of wage increase needed to raise the beneficiary's actual compensation to the proffered wage, if there 
is evidence that the beneficiary received compensation from the petitioner in the year in question. 
In the instant case, for the year 2002, the petitioner's year-end current liabilities exceeded its current assets by 
$95,165.00, resulting in a figure for year-end net current assets of -$95,165.00. Since that figure is negative, 
it does not establish the petitioner's ability to pay the proffered wage that year. 
The record also contains copies of unaudited financial statements. Unaudited financial statements are not 
persuasive evidence. According to the plain language of 8 C.F.R. 5 204.5(g)(2), where the petitioner relies on 
financial statements as evidence of a petitioner's financial condition and of its ability to pay the proffered 
wage, those statements must be audited. Unaudited statements are the unsupported representations of 
management. The unsupported representations of management are not persuasive evidence of a petitioner's 
ability to pay the proffered wage. 
The record also contains copies of two pay statements of the beneficiary, one for the pay period from 
February 28, 2004 to March 5, 2004 and the other for the pay period from March 6, 2004 to March 12,2004. 
Each of those pay statements shows gross pay from the petitioner in the amount of $1,000.00. Those two pay 
statements indicate a rate of pay higher than the proffered wage of $48,672.00. However, the two pay 
statements for 2004 are insufficient to establish the petitioner's ability to pay the proffered wage for the entire 
year 2004. The two pay statement also provide no further support to help establish the petitioner's ability to 
pay the proffered wage in the years prior to 2004. 
The record contains no other evidence relevant to the petitioner's financial situation. The evidence therefore fails 
to establish the petitioner's ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains lawful permanent residence. 
In her decision, the director correctly stated the petitioner's net income in 2002 as $21,007.00 and correctly 
calculated the petitioner's year-end net current assets for that year. The director incorrectly referred to the 
petitioner's negative net current assets of -$95,165.00 as a "net loss." (Director's decision, September 9, 
2004, at 1). That term is appropriate to an analysis of income, but it is not appropriate to a balance sheet 
analysis of assets and liabilities. Notwithstanding that error in terminology, the director's conclusion that the 
foregoing figures failed to establish the petitioner's ability to pay the proffered wage in 2002 was correct. 
The director also correctly found that the other evidence in the record failed to establish the petitioner's 
ability to pay the proffered wage during the relevant period. The director made no reference to the absence of 
any copy of the petitioner's federal tax returns for 2001 and 2003. 
The director's decision to deny the petition was correct, based on the evidence then in the record. For the 
reasons discussed above, the assertions of counsel on appeal and the evidence newly submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.