dismissed EB-3 Case: Meat Cutting

~dentifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration ?..) 
Services < 
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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. 
,/mi/u Robert P. Wiemann, Chef 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a Halal meat and grocery store. It seeks to employ the beneficiary permanently in the United 
States as a Halal meat cutter. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the U. S. 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 petitiqn. The director denied the petition 
accordingly. 
According to the Form 1-140 petition, the petitioner was established on June 11, 1998 with the current number 
of its employees at the date of signing of the petition not disclosed. The petitioner requested during the review 
process that the petition be adjudicated as Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 153(b)(3)(A)(i) instead of another preference classification selected on the petition. 
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 at 8 C.F.R. $204.5(g)(2) states in pertinent part: 
Ability of prospective ernployer 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 regulation at 8 CFR fj 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a shlled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
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. 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 30, 2001. The proffered wage as stated on the Form ETA 
750 is $20.50 per hour ($820.00 per week; $42,&40.00 per year). The Form ETA 750 states that the position 
requires two years experience. 
- 
On appeal, counsel submits a legal brief and additional evidence which is a W-2 Wage and Tax Statement and 
a personal U.S. federal tax return. 
-- 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved%y the U.S. Department of Labor; a U.S. Internal 
Revenue Service Form tax return for 2003; a certificak of incorporation; and, copies of documentation 
concerning the beneficiary's qualifications as well as other-documentation. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. $ 204.5(g)(2), the director requested on March 30, 2005, pertinent evidence of the petitioner's ability to 
pay the proffered wage beginning on the priority date. The director requested the petitioner's U.S. federal tax 
returns for 2001,2002,2003 and 2004. An alternative evidence submission was also requested to the above. The 
director also requested annual reports for the same years with audited financial statements. The director requested 
Form W-2 Wage and Tax Statement for the beneficiary if he was ever employed by the petitioner. 
In response to the request for evidence of the petitioner's ability to pay the proffered wage beginning on the 
priority date, counsel submitted an explanatory letter and copies of the following documents: the petitioner's 
U.S. Internal Revenue Service (IRS) Form 1120s tax returns for years 2001, 2002,2003 and 2004, and a form 
1 120 tax return for 2001. 
The director denied the petition on June 9, 2005, findifig that the evidence submitted did not establish that the 
petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts that the alien was not employed in 2001; that the proffered wages on the original 
application" were "$5001-week," then the wages were changed to "$820/week;" and the business has shown a 
profit in 2001. Counsel further contends ". . . the profit of the Employer was enough to sustain the employee 
for more than six months, based on the expected wages of $500/week" as well as other contentions. 
In determining the petitioner's ability to pay the profkred wage during a given period, U.S. 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. Evidence was submitted to show that the petitioner employed 
the benef ciary. In 2004, the petitioner paid the beneficiary $10,660.00. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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 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), affd, 703 
F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Znc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered income before expenses were paid rather than net income. Finally, no precedent exists that would 
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang 
v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054. 
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $42,640.00 per year from the priority date of April 30,200 1 : 
In 2001, the undated Form 1120s stated taxable income of $36,788.00. 
In 2001, the undated Fonn 1120 (NYC Worksheet) stated taxable income' of $14,288.00. 
In 2002, the Form 1120s stated taxable income of $25,199.00. 
In 2003, the Form 1120s stated taxable income of $27,974.00. 
In 2004, the Form 1120s stated taxable income of $1 1,270.00. 
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. 
t 
In 2004, the Form 1120s stated taxable income of $1 1,270.00. In 2004, the petitioner paid the 
beneficiary $10,660.00. The sum of these tifro figures is less than the proffered wage of $42,640.00 
per year. 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage at any time between the years 2001 through 2004 for which the petitioner's tax returns 
are offered for evidence. 
CIS will consider net turrerzt 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. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120s federal tax return. The petitioner's year-end 
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage. 
1 
IRS Form 1120, Line 28. The difference between the two returns is that this return states "wholesale income" in 
the amount of $22,500.00 as additional income. 
2 
 According to Barron S Dictionary of Accounting Terms 1) 7 (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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
Page 5 
Examining the Form 1120s U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each 
of those returns indicates the following: 
In 2001, petitioner's Form 1120s return stated current assets of $12,356.00 and $0.00 in 
current liabilities. Therefore, the petitioner had $12,356.00 in'net current assets. Since the 
proffered wage is $42,640.00 per year, this sum is less than the,proffered wage. 
In 2002, petitioner's Form 1120s return stated current assets of $18,020.00 and $0.00 in 
current liabilities. Therefore, the petitioner had $18,020.00 in net current assets. Since the 
proffered wage is $42,640.00 per year, this sum is less than the proffered wage. 
In 2003, petitioner's Form 1120s return stated current assets of $17,871.00 and $0.00 in 
current liabilities. Therefore, the petitioner had $17,871.00 in net current assets. Since the 
proffered wage is $42,640.00 per year, this sum is less than the proffered wage. 
In 2004, petitioner's Form 1120s return stated current assets of $18,460.00 and $0.00 in 
current liabilities. Therefore, the petitioner had $18,460.00 in net current assets. Since the 
proffered wage is $42,640.00 per year, this sum is less than the proffered wage. 
Therefore, for the period 2001 through 2004 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 ability to pay the beneficiary 
the proffered wage at the time of filing through an examination of its net current assets. 
Counsel asserts in his brief accompanying the appeal that there are other ways to determine the petitioner's 
ability to pay the proffered wage from the priority date. According to regulation; copies of annual reports, 
federal tax returns, or audited financial statements are the means by which petitioner's ability to pay is 
determined. 
Counsel asserts that the beneficiary was not employed in 2001; that the proffered wages on the original 
application" were "$5001-week," then the wages were changed to "$820/week;" and, that the business has 
shown a profit in 2001. Counsel further contends ". . . the profit of the Employer was enough to sustain the 
employee for more than six months, based on the expected wages of $500/week . . ." the beneficiary would 
earn. 
As noted from the certified Alien Employment Application the proffered wage is $20.50 per hour ($820.00 
per week; $42,640.00 per year) not $500.00 each week. The ability to pay the proffered wage is calculated on 
the labor certification terms. CIS may not ignore a tenn of the labor certification, nor may it impose additional 
requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comrn. 1986). See 
also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th 
Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomq, 661 F.2d 1 (I st Cir. 198 1). 
Counsel asserts on the appeal that there is another way to determine the petitioner's ability to pay the 
proffered wage from the priority date by employing the beneficiary because it is ". . . a fundamental business 
rule that with the engagement of additional employee, one can generate more profit in the business" and, 
therefore by a logical extension of counsel's contention evidence the ability to pay the proffered wage. . 
Counsel cites no legal precedent for the contention, and, according to regulation, copies of annual reports, 
federal tax returns, or audited financial statements are the means by which petitioner's ability to pay is 
8 C.F.R. 4 204.5(g)(2). 
determined. The assetions of counsel do not constitute evidence. Matter of Obaigberna, 19 I&N Dec. 533, 534 
(BIA 1988); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Further, .in this instance, no detail 
or documentation has been provided to explain how the beneficiary's employment as a Halal meat cutter will 
significantly increase petitioner's profits. This hypothesis cannot be concluded to outweigh the evidence 
presented in the corporate tax returns. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the corporate tax returns as 
submitted by petitioner that shows that the petitioner has not demonstrated its ability to 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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
4 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.