dismissed EB-3 Case: Media And Advertising

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PUBLIc:COPY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE:
EAC-05-094-50352
Office: VERMONT SERVICE CENTER Date: APR 2 5 Zn1
INRE: Petitioner:
Beneficiary:
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. § l153(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
www.uscis.gov
Page 2
DISC,uSSION: 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 media and advertising company. It seeks to employ the beneficiary permanently in the
United States as a director of photography (cinematographer). As required by statute, the petition is
accompanied by a Form ETA 750, Application for Alien Employment Certification, approved by the
Department of Labor (DOL). The director determined that the petitioner had not .established its 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 the director's July 11,2005 denial, 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. § 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. § 204.5(g)(2) states in pertinent part:
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 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.. §
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 EmploymentCenification as certified by the U.S. Department
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16I&N Dec. 158 (Act. Reg.
Comm. 1977).
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA
750 is $59,051 per year. The Form ETA 750 states that the position requires five 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
Page 3
pertinent evidence in the record, including new evidence properly submitted upon appeal!. Relevant evidence
in the record includes the petitioner's corporate federal tax returns for 2001 through 2003, subscription
_ between the petitioner and Mr. , two letters dated June 6, 2005 from
, bank statements of the petitioner's business checking accounts covering from November 21,2000
to December 20,2001, and the beneficiary's Forill1099s from the petitioner. 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 a C corporation. According
to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the petition, the
petitioner claimed to have been established in 2000, to have a gross annual income of $1.6 million, to have a
net annual income of $100,000, and to currently employ ten workers. On the Form ETA 750B, signed by the
beneficiary on April 23, 2001, the beneficiary did not claim to have worked for the petitioner.
On appeal, counsel asserts that the outstanding balance of the purchasing price of 16 shares and the payment
paid to contracted cinematographers in the last five years would be sufficient to pay the beneficiary the
proffered wage. Counsel also argues that the petitioner's bank statements indicate that monthly balance was
enough to cover the salary for each month from the application was filed.
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 residenc~. 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, 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
circumstances affecting the petitioning business will be considered if the evidence warrants such consideration.
See Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Corum. 1967).
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 prima facie proof of the petitioner's ability to pay the proffered wage.
Counsel submitted a letter dated June 6,2005 from Chairman and CEO of the
petitioner. In the letter, the petitioner asserted that in the last five years the company had paid $253,472 to
contracted cinematographers. Counsel advised that the beneficiary will replace these contracted workers and
the amount of the payment made to these contracted cinematographers could have covered the beneficiary's
proffered wage. The record does not, however, name these workers, state their wages, verify their weekly
hours of working, or provide evidence that the petitioner has replaced or will replace them with the
beneficiary. The petitioner's tax returns do not reflect the amount of the payment the petitioner claimed to
have paid to contracted cinematographers. 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 (BIA
I 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)(1). The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988).
!
Page 4
1980). Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In general, 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. Therefore, the petitioner failed to establish its ability to pay
the beneficiary the proffered wage as of the priority date through the payment paid to the to-be-replaced
contracted cinematographers.
In the instant case, the petitioner submitted the beneficiary's 1099 forms issued by the petitioner in 2001,
2002 and 2003. These 1099forms show that the petitioner paid the beneficiary $10,175 in 2001, $12,250 in
2002 and $9,020 in 2003. The petitioner did not establish that it paid the beneficiary the full proffered wage
in these years, however, the petitioner is obligated to demonstrate that it could pay the difference of $48,876
in 2001, $46,801 in 2002 and $50,031 in 2003 between 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. £ldtos 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); KCF. 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).
Reliance on the petitioner's total income and wage expense is misplaced. Showing that the petitioner's total
income exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in
excess of the proffered wage is insufficient.
In KCP. 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 in KCP. Food Co., Inc. v.
Sava 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 courtby adding back depreciation is without support.
(Emphasis in original.) Chi-Feng at 537.
The petitioner's tax returns for 2001 through 2003 demonstrate the following financial information
concerning the petitioner's ability to pay the difference of $48,876 in 2001, $46,801 in 2002 and $50,031 in
2003 between wages actually paid to the beneficiary and the proffered wage from the priority date:
Page 5
• In 2001, the Fonn 1120 stated a net income 2 of $(98,562).
• In 2002, the Fonn 1120 stated a net income of $(589,470).
• In 2002, the Fonn 1120 stated a net income of $(79,224).
J
Therefore, for the years 2001 through 2003, the petitioner did not have sufficient net income to pay the
difference of $48,876 in 2001, $46,801 in 2002 and $50,031 in 2003 between wages actually paid to the
beneficiary 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 detennination 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 cl..lITent assets and current liabilities. 3 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 net current assets during 2001 were $(1,000).4
• The petitioner's net current assets during 2002 were $(605,570).5
2 Taxable income before net operating loss deduction and special deductions as reported on Line 28 of the·
Fonn 1120.
3 According to Barron's Dictionary ofAccounting 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-tenn notes payable, and accrued expenses (such as taxes and salaries). Id. at 118.
4 On appeal counsel asserts that the petitioner's total current assets were $623,195 and the total current
liabilities were $918,989, and therefore, the net current assets in 2001 were $424,206. Counsel's calculation
is incorrect. Wereject, however, the idea the petitioner's total assets should have been considered in the
detennination 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 detennination of thepetitioner'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. In 2001, the petitioner's year-end current assets shown on Schedule L, lines 1 through 6 were
$453,764, and the year-end current liabilities shown on lines 16 through 18 were $454,764, and therefore, the
current liabilities were greater than the current assets by $1,000 contrary to counsel's assertion.
s In 2002, the petitioner's year-end current assets shown on Schedule L, lines 1 through 6 were $463,234, and
the year-end current liabilities shown on lines 16 through 18 were $941,796. Counsel mistakenly asserts that
the petitioner's total assets were $733,031 and the total liabilities were $476,552. The calculation is incorrect.
_Page 6
• The petitioner's net current assets during 2001 were $(693,641).6
Therefore, for the years 2001 through 2003, the petitioner did not have sufficient net current assets to pay the
difference of $48,876 in 2001, $46,801 in 2002 and $50,031 in 2003 between wages actually paid to the
beneficiary and the proffered wage respectively. .
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department ofLabor,
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.
Counsel asserts in the brief accompanying the appeal that there is another way to determine the petitioner's
continuing ability to pay the proffered wage from the priority date. The petitioner submitted a subscription
agreement for $250,000 and a letter dated June 6, 2005 from Mr._ one of the petitioner's owners, about
this subscription agreement. Counsel argues that the outstanding balance of $120,250 is sufficient to establish
the petitioner's ability to pay the beneficiary the proffered wage. TheAAO do~s not concur with counsel's
assertions. The subscription agreement was for Mr. ~to purchases 16 shares of the petitioner's stock at
the total price of $250,000. It was a stock purchase agreement by which Mr. ~ invested capital in the
petitioning business. The investment in cash from Mr. I would not change the petitioner's net income
for the year, but the petitioner's year-end cash balance, which is included in the petitioner's current assets.
The agreement was entered into as of July 25, 2001 and provides that the entire purchase price shall be
requested and paid by Purchaser before December 31, 2001. However, the petitioner's tax returns for 2001
through 2003 show that the petitioner's net current assets were still not sufficient to cover the proffered wage
assuming the investment from Mr. Iwouldhave already been reflected on the schedule L balance sheets
in these years. The outstanding balance of $120,250 as claimed in Mr.1iiIiiiI June 6, 2005 letter could not be
considered in determining the petitioner's ability to pay the proffered wage for 2001 through 2003 since that
amount of money was not in the petitioner's possession then. A petitioner must establish the elements for the·
approval of the petition at the time of filing. A petition may not be approved if the beneficiary was not
qualified at the priority date, but expects to become eligible at a subsequent time. Matter of Katigbak, 14
I&N Dec. 45, 49 (COIl1I11. 1971). Against the projection offuture earnings, Matter ofGreat 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 peti~ion approved under a new set of facts hinged upon probability and projections,
even beyond the information presented on appeal.
On appeal counsel also submits bank statements of the petitioner's business checking account for the year
2001 and asserts that "on a monthly basis for the period of time since the application was filed, there· was
enough balance in the bank at the end of each month to cover the salary when it is broken down into twelve
divisible sums." Counsel's reliance on the balance in the petitioner's bank account is misplaced. First, bank
statements are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate
a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate
6In 2003, the petitioner's year-end current assets shown on Schedule L, lines 1 through 6 were $455,357, and
the year-end current liabilities shown on lines 16 through 18 were $1,148,998. Counsel mistakenly asserts
that the petitioner's total assets were $876,361 and the total liabilities were $753,782. Counsel's calculation
is incorrect.
Page 7
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2)
is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show
. the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third,
no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow
reflect additional available funds that were not reflected on its tax return, such as the petitioner's taxable income
(income minus deductions) or the cash specified on Schedule L that was considered in detennining the
petitioner's net current assets.
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 Fonn ETA 750 was accepted for processing by the Department of Labor.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 V.S.c. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.