dismissed EB-3 Case: Masonry

U.S. Department of Ilonieland Security 
20 Mass. Ave.. N.W., Rm. 3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
B6 
' _ 
Office: VERMONT SERVICE CENTER Date: 
EAC 03 19 1 50744 
 a1 3% 28s 
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. $ 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 
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 masonry and landscaping company. It seeks to employ the beneficiary permanently in the 
United States as a stonemason. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the United States Department of Labor (DOL). 
In the director's decision dated August 25, 2004, 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. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in both decisions of the director, the single issue in this case is whether or not the petitioner has 
the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence. 
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 einployment- 
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 DOL. See 8 C.F.R. tj 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 DOL and submitted with the instant 
petition. Matte? of Wing's Ten House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
1 
 This office notes that the petitioner filed a motion to reconsider the director's decision on the same day it 
filed the instant appeal. In a decision dated March 23, 2005, the director granted the petitioner's motion to 
reconsider and affirmed his previous decision. 
Page 3 
Here, the Form ETA 750 was accepted on April 25, 2001. The proffered wage as stated on the Form ETA 
750 is $30.69 per hour ($63,835.20 per year based on a 40 hour work week). The Form ETA 750 states that 
the position requires two years of experience in the job offered. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeaL2 On appeal, 
counsel submits a brief, the petitioner's previously submitted IRS Form 1120S, U.S. Income Tax Return for 
an S Corporation, for 2001, and the petitioner's IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation, for 2003. Other relevant evidence in the record includes the beneficiary's IRS Forms W-2, 
Wage and Tax Statements, issued by the petitioner for 2001 and 2002, the beneficiary's IRS Forms 1040, 
U.S. Individual Income Tax Returns, for 2001 and 2002, and bank statements for Hedges & Gardens for 
November and December 2002.~ The record does not contain any other evidence relevant to the petitioner's 
ability to pay the wage. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. 
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 February 28, 2001, the beneficiary did not claim to have 
worked for the petitioner.4 
On appeal, counsel cites The Matter of Oriental Pearl Restaurant, 92 TNA 59 (BALCA 1993) and Matter of 
Sonegawa, 12 I&N Dec. 612 (BIA 1967) for the proposition that the petitioner's ability to pay the proffered 
wage can be established through factors determining the petitioner's financial viability such as its growth and 
volume of business. Counsel asserts that the petitioner's growth from 2001 to 2003, its high volume of 
business, total assets, gross profits, and its trend toward financial viability in the future demonstrate its ability 
to pay the proffered wage. Counsel also asserts that it is hiring the beneficiary to enhance its service and to 
increase its business and profitability. 
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. Comrn. 1977). See also 8 C.F.R. 204.5(g)(2). In 
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 record contains copies of the beneficiary's IRS Form W-2, Wage and Tax Statement, issued by the 
petitioner for 1999 and the beneficiary's IRS Form 1040, U.S. Individual Income Tax Return, for 1999. 
Evidence preceding the priority date in 2001 is not necessarily dispositive of the petitioner's continuing 
ability to pay the proffered wage beginning on the priority date. 
4 
 This office notes that the record of proceeding contains a Form G-325, Biographic Information sheet submitted 
in connection with the beneficiary's application to adjust status to lawful permanent resident status. On that form, 
the beneficiary left blank a section eliciting information about the beneficiary's employment the last five years. 
Page 4 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (CIS) requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the 
circumstai~ces affecting the petitioning business will be considered if the evidence warrants such consideration. 
See Matter of Sonegwa, 12 I&N Dec. 6 12 (Reg. Comm. 1 967). 
In determining the petitioner's ability to pay the proffered wage during a given period, 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 primafacie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, the beneficiary's IRS Forms W-2, Wage and Tax Statements, for 2001 and 2002 show 
compensatioll received from the petitioner, as shown in the table below. 
In 2001, the Form W-2 stated compensation of $12,766.00. 
In 2002, the Form W-2 stated compensation of $20,491.75. 
Therefore, for the years 2001 and 2002, the petitioner has not established that it employed and paid the 
beneficiary the full proffered wage, but it did establish that it paid partial wages each year. Since the 
proffered wage is $63,835.20 per year, the petitioner must establish that it can pay the difference between the 
wages actually paid to the beneficiary and the proffered wage, which is $51,069.20 and $43,343.45 in 2001 
and 2002, respectively. 
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 Woodcrarft Hawaii, Ltd. v. Feldnzan, 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The record before the director closed on June 14, 2003. The petitioner's tax returns demonstrate its net 
income for 2001 and 2003, as shown in the table below.5 
In 2001, the Form 1120s stated net income6 of $0.00. 
5 
 This office notes that the record does not contain the petitioner's 2002 federal income tax return. 
Therefore, the petitioner's net income and net current assets may not be analyzed against the difference 
between the wages actually paid to the beneficiary and the proffered wage in 2002. 
6 
 Where an S corporation's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on line 21 of page one of the petitioner's Form 1120s. However, where an S 
corporation has income, credits, deductions or other adjustments from sources other than a trade or business, they 
are reported on Schedule K. If the Schedule K has relevant entries for additional income or additional credits, 
deductions or other adjustments, net income is found on line 23 of Schedule K. Because the petitioner had 
additional deductions shown on its Schedule K for 2001 and additional income and deductions on its Schedule K 
for 2003, the petitioner's net income is found on line 23 of Schedule K of its tax returns. While the director 
erroneously stated that the petitioner's net income was $6,351 .OO in 2001, this error does not alter the ultimate 
outcome of the appeal. 
In 2003, the Form 1 120s stated net income of $1,361.00. 
Therefore, for the years 2001 and 2003, the petitioner did not have sufficient net income to pay the difference 
between the wages actually paid to the beneficiary and the proffered wage. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, CIS may review the 
petitioner's net current assets. We reject, however, counsel's idea 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 
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 tax returns 
demonstrate its end-of-year net current assets for 2001 and 2003, as shown in the table below. 
In 2001, the Form 1120s stated net current assets of -$3,101.00. 
In 2003, the Form 1120s stated net current assets of $80,527.00. 
Therefore, for the year 2001, the petitioner did not have sufficient net current assets to pay the difference 
between the wages actually paid to the beneficiary and the proffered wage. For the year 2003, the petitioner 
had sufficient net current assets to pay the difference between the wages actually paid to the beneficiary and 
the proffered wage. 
Thus, from the date the Form ETA 750 was accepted for processing by the DOL, 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 except for 
2003. 
On appeal, counsel states that DOL Bureau of Alien Labor Certification Appeals (BALCA) case is applicable to 
the instant petition before the Department of Homeland Security's AAO. Counsel cites The Mutter of Oriental 
Pearl Restaurant, 92 INA 59 (BALCA 1993) as holding that evidence on the gross profits and the increase in 
gross profits may be sufficient to establish the petitioner's ability to pay the proffered wage, and that where 
the evidence establishes that the petitioner is a substantial and thriving business, the business judgment of the 
petitioner to hire an additional employee should be respected. Counsel does not state how DOL precedent is 
binding in these proceedings. While 8 C.F.R. $ 103.3(c) provides that precedent decisions of CIS are binding on 
7 
 According to Burron 's Dictionary of Accounting Terms 1 17 (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. 
Page 6 
all its employees in the administration of the Act, BALCA decisions are not similarly binding. Precedent 
decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 5 103.9(a). 
Moreover the evidence in the instant petition is less persuasive than the evidence relied upon by BALCA in 
that case. In Oriental Pearl, the Board cited evidence which included a listing of all of the employer's 
employees, with the monthly salary and job title for each employee, as well as supporting statements from a 
bank officer and from the president of the employer's accounting firm. The Board also cited a very favorable 
review of the employer in a guide to restaurants in the City of Atlanta, where the employer was located. In the 
instant case, the evidence of the petitioner's ability to pay consists solely of bank statements for an unrelated 
entity, the petitioner's income tax returns for 2001 and 2003 and IRS Forms W-2 issued by the petitioner to 
the beneficiary for 2001 and 2002. The evidence does not establish that the petitioner is a substantial and 
thriving business. 
On appeal, counsel also cites Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), which indicates that CIS 
may consider the overall magnitude of the petitioner's business activities in its determination of the 
petitioner's ability to pay the proffered wage. 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. As in Sonegma, CIS may, at its discretion, consider evidence relevant to the petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems relevant to the petitioner's 
ability to pay the proffered wage. 
In the instant case, the petitioner has been in business since 1994. While counsel cites the petitioner's gross 
profit of $190,724.00 in 2001 and $386,838.00 in 2003, the petitioner has not srrfficiently established the 
historical growth of its business, its has not established its overall number of employees, it has not established 
the occurrence of any uncharacteristic business expenditures or losses, it has not established its reputation 
within its industry and it has not indicated whether the beneficiary is replacing a former employee or an 
outsourced service.' Thus, assessing the totality of the circumstances in this individual case, it is concluded 
that the petitioner has not established that it had the continuing ability to pay the proffered wage. 
8 
 This office notes that the petitioner paid minimal salaries and wages in 2001 and 2003, with $63,665.00 
paid in 2001 and $127,653.00 in 2003. The beneficiary earned approximately 20% of the total salaries paid 
by the petitioner in 2001. 
On appeal, counsel also asserts that the petitioner's trend toward financial viability in the future demonstrate 
its ability to pay the proffered wage.' Against the projection of future earnings, Matter of Great Wall, 16 I&N 
Dec. 142, 144-145 (Acting Reg. Comm. 1977) states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could 
not pay the offered wage at the time the petition was filed, should subsequently become eligible 
to have the petition approved under a new set of facts hinged upon probability and projections, 
even beyond the information presented on appeal. 
Finally, counsel's reliance on the balances in the bank accounts of Hedges & Gardens is misplaced. The 
petitioner has not demonstrated that the financial infonnation contained on the bank statements for Hedges & 
Gardens relates to the petitioner. Even if this office accepts that the bank statements in the record relate to the 
petitioner, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. 3 204.5(g)(2), 
required to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional 
material "in appropriate cases," the petitioner in this case has not demonstrated why the documentation specified 
at 8 C.F.R. fj 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. 
Further, bank statements show the amount in an account on a given date, and cannot show the sustainable ability 
to pay a proffered wage. 
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 for processing by the DOL. 
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. 
fj 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
4 
Counsel also asserts that it is hiring the beneficiary to enhance its service and to increase its business and 
profitability. The petitioner has provided no detail or documentation to explain how the beneficiary's 
employment will accomplish these benefits for the petitioner. The assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BLA 1980). Counsel's hypothesis cannot be concluded to outweigh the evidence presented in the 
corporate tax returns. Further, this office notes that if the beneficiary has been employed by the petitioner 
since 1999, the petitioner should be able to establish how the beneficiary's services have already impacted the 
company.