dismissed EB-3 Case: Microcomputer Support

identifying data deleted to 
prevent clearly unwarranted 
invasion of ped privacy 
mJBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
IN RE: 
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. 5 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 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a real estate investment company. It seeks to employ the beneficiary permanently in the 
United States as a microcomputer support specialist. As required by statute, the petition is accompanied by a 
Form ETA 750, Application for Alien Employment Certification (labor certification application or 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. 
Counsel filed a timely appeal with a brief 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. $ 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 CFR 
5 204.5(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 U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 2,2002. The proffered wage as stated on the Form ETA 750 
is $38,611 per year. The Form ETA 750 states that the position requires two (2) years of experience in the 
job offered and six months of experience in the related occupation of atrium software configuration. On the 
- - 
1 
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 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. 
Form ETA 750B signed by the beneficiary on February 18, 2002, the beneficiary did not claim to have 
worked for the petitioner. On the petition, the petitioner claimed to have been established in 1992, to have a 
gross annual income of $107,440, and to currently employ one (1) worker. 
With the petition, the petitioner submitted its Form 1 120S, U.S. Income Tax Return for an S Corporation for 
2001 pertinent to its ability to pay the proffered wage. On February 10,2005, the director issued a request for 
additional evidence (WE) of the petitioner's ability to pay the proffered wage beginning with the priority date 
to the present. The director specifically requested the petitioner submit its 2002, 2003 and 2004 tax returns, 
and the beneficiary's 2002,2003 and 2004 W-2 forms. 
In response, the petitioner submitted its Form 1120S, U.S. Income Tax Return for an S Corporation for 2002 
and 2003, and Form 941 Employer's Quarterly Federal Tax Return and UCT-6 Employer's Quarterly Report 
for the first quarter of 2005. 
The director denied the petition on May 17, 2005, finding that the evidence submitted with the petition and in 
response to the RFE 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 petitioner's Form 941 for the first quarter of 2005 shows that the petitioner 
is currently paying the beneficiary the proffered wage, therefore, according to the memorandum from William 
Yates on May 4, 2004, the petitioner established its ability to pay the proffered wage in the instant case. 
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, the petitioner submitted Form 941 
Employer's Quarterly Federal Tax Return and UCT-6 Employer's Quarterly Report for the first quarter of 
2005 as evidence that the petitioner paid the beneficiary the proffered wage. The form shows that the 
petitioner paid the beneficiary $9,750 in the first quarter of 2005, which is equal to the level of $39,000 per 
year. 
On appeal, counsel asserts that since the petitioner has paid the beneficiary at the proffered wage rate since 
the first quarter of 2005, according to the language in Mr. Yates' memorandum, it has established its 
continuing ability to pay the proffered wage beginning on the priority date. Counsel urges CIS to consider the 
wage rate paid in the first quarter of 2005 as satisfying that particular method of demonstrating a petitioning 
entity's ability to pay. 
The Yates' memorandum relied upon by counsel provides guidance to adjudicators to review a record of 
proceeding and make a positive determination of a petitioning entity's ability to pay if, in the context of the 
beneficiary's employment, "[tlhe record contains credible verifiable evidence that the petitioner not only is 
employing the beneficiary but also has paid or currently is paying the proffered wage." 
The AAO consistently adjudicates appeals in accordance with the Yates memorandum. However, counsel's 
interpretation of the language in that memorandum is overly broad and does not comport with the plain 
language of the regulation at 8 C.F.R. fj 204.5(g)(2) set forth in the memorandum as authority for the policy 
guidance therein. The regulation requires that a petitioning entity demonstrate its continuing ability to pay the 
proffered wage beginning on the priority date. If CIS and the AAO were to interpret and apply the Yates 
Page 4 
memorandum as counsel urges, then in this particular factual context, the clear language in the regulation 
would be usurped by an interoffice guidance memorandum without binding legal effect. The petitioner must 
demonstrate its continuing ability to pay the proffered wage beginning on the priority date, which in this case 
is April 2, 2002. Thus, the petitioner must show its ability to pay the proffered wage not only in 2005, when 
counsel claims it actually began paying the proffered wage rate, but it must also show its continuing ability to 
pay the proffered wage in 2002 through 2004. 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. In the instant case, the petitioner did 
not submit any evidence of compensation the petitioner paid the beneficiary during the years 2002 through 
2004. Therefore, the petitioner has not established its continuing ability to pay the proffered wage beginning 
on the priority date through wages paid to the beneficiary. 
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 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts, depreciation/amortization deduction or 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. 
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 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. Plaintiffs7 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 evidence indicates that the petitioner is an S corporation and its fiscal year is based 
on a calendar year. In the instant case the priority date is April 2, 2002, therefore, the 2001 tax return is not 
necessarily dispositive. The petitioner's tax returns for 2002 and 2003 demonstrate the following financial 
information concerning the petitioner's ability to pay the proffered wage of $38,611 per year from the priority 
date in 2002 to 2003: 
Page 5 
In 2002 Form 1 120s states net loss' of $47,873; 
In 2003 Form 1120s states net loss3 of $97,502. 
Therefore, the petitioner did not have sufficient net income to pay the proffered wage for the years 2002 and 
2003. 
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 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 net current 
assets were $45 in 2002 and $19,153 in 2003. Therefore, the petitioner had insufficient net current assets to 
pay the proffered wage of $38,611 in 2002 and 2003. 
The petitioner must demonstrate this ability at the time the priority date is established and continuing until the 
beneficiary obtains lawful permanent residence. The record before the director closed on April 25, 2005 
when the director received the response to the WE. In the response counsel explained that the petitioner had 
requested an extension to file its 2004 tax return. However, counsel did not submit any documentary 
evidence for the extension. 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 1980). The petitioner does 
not submit its 2004 tax return on appeal although 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. 
9 103.2(a)(l), and despite the director's WE request dated May 10, 2005. The burden of proof in these 
2 
 Where an S corporation has income from sources other than from a trade or business, net income is found on 
Schedule K. The Schedule K form related to the Form 1120 states that an S corporation's total income from 
its various sources are to be shown not on page one of the Form 1 120S, but on lines 1 through 6 of the 
Schedule K, Shareholders' Shares of Income, Credits, Deductions, etc. See Internal Revenue Service, 
Instructions for Form 1 120S, 2003, at http://www.irsgov/pub/irs-03/i1120s.pdf, Instructions for Form 1 120S, 
2002, at http:llwww.irs.novlpub/irs-02/i1120s.pdf, (accessed February 15,2005). 
3 
 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 1 120s. The instructions on 
the Form 1120S, U.S. Income Tax Return for an S Corporation, state on page one, "Caution, Include only 
trade or business income and expenses on lines la through 2 1 ." 
4 
 According to Barron 's Dictionary of Accounting Terms 1 17 (3'd 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 118. 
Page 6 
proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Therefore, the petitioner 
failed to establish its ability to pay the proffered wage from 2002 through 2004. 
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 as 
of the priority date 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 return 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 any office within the employment system of the 
Department of Labor. 
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. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.