dismissed EB-3 Case: Ostrich Farming

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PUBLICCOPY"
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
WAC 0509055104 Date: APR. 2 3 lOO7
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. § 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.
www.uscis.gov
Page 2
DISCUSSION: The Director, California Service Center, denied the immigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is an ostrich farm. It seeks to employ the beneficiary permanently in the United States as an
ostrich breeder. 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 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 denial dated September 20, 2005, 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 pe~anent 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. v
The regulation at 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 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.
Comm. 1977).
Here, the Form ETA 750 was accepted on April 17,2001. 1 The proffered wage as stated on the Form ETA
750 is $13.94 per hour ($28,995.20 per year). The Form ETA 750 states that the position requires two years
of experience in the proffered position.
i It has been approximately six years since the Alien Employment Application has been accepted and the
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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 appeal.2
Relevant evidence in the record includes copies of the following documents: the original Form ETA 750,
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal
Revenue Service Form 1120 tax returns for 2001,2002, and 2003; and, copies of documentation concerning
the beneficiary's qualifications as well as other documentation.
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the
petition, the petitioner claimed to have been established in 1997 and to currently employ one worker.
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, the beneficiary did not claim to have worked for the petitioner.
According to the CIS Form G-325A in the record of proceeding, signed by the beneficiary on February 1,
2005, the beneficiary was unemployed from July 1998 to present time (February 1, 2005). As will be
discussed, this statement is contrary to wage evidence submitted. It is incumbent upon the petitioner to
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence
pointing to where the truth lies.. Matter ofHo, ,19 I&N Dec. 582, 591-92 (BIA 1988).
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 June 9, 2005, pertinent evidence of the petitioner's ability to pay
the proffered wage beginning on the priority date.
The director requested evidence in the form of copies of annual reports, U.S. federal tax returns with signatures
and dates, or audited financial statements for 2001,2002,2003 and 2004.
The director requested California Employment Development Department (EDD) Form DE-6, Quarterly Wage
Reports for all employees for the last four quarters that were accepted by the State of California. The director
requested that the forms should include the names, social security numbers and number of weeks worked for all
employees.
In response to the director's request, counsel submitted copies of the following documents: cover and explanatory
letters from counsel both dated August 24, 2005; U.S. Internal Revenue Service Form 1120 tax returns for
2001, 2002, 2003 and 2004; and, California. Employment Development Department (EDD) Form DE-6,
Quarterly Wage Reports for all employees for the last two quarters of2004.
proffered wage established. According to the employer certification that is part of the application, ETA Form
750 Part A, Section 23 b"states "The wage offered equals or exceeds the prevailing wage and I [the
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work."
2 the submission of additional evidence on appeal is allowed by the instructions to the CIS Form 1-290B,
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
On appeal, counsel asserts that the petitioner's income for the year 2005 is evidence of the petitioner's ability
to pay the proffered wage, and, the petitioner's owner had sufficient net assets for years 2002, 2003 and 2004.
Further, counsel asserts that the petitioner has sufficient personal assets to pay the proffered wage, and that
the total asset value of the petitioner is evidence ofthe petitioner's ability to pay the proffered wage.
As a preface to the following discussion, contrary to counsel's assertion, Citizenship and Immigration
Services (CIS) may not "pierce the corporate veil" and look to the assets of the corporation's owner to satisfy
the corporation's ability to pay the proffered wage. It is an elementary rule that a corporation is a separate
and distinct legal entity from its owners and shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958),
. Matter ofAphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 I&N Dec.
631 (Act. Assoc. Comm. 1980). Consequently, assets of its shareholders or of other enterprises or
corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered
wage. In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated,
"nothing in the governing regulation, 8 C.F.R. § 204.5, permits [CIS] to consider the financial resources of
individuals or entities who have no legal obligation to pay the wage."
Accompanying the appeal, counsel submits a legal statement dated September 28, 2005, and additional·
evidence that includes copies of the following documents: the petitioner's income statement and balance sheet
dated as of September 30, 2005; and, the petitioner's bank statement as of October 2005.
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 CFR
§ 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 ofSonegawa,
12 I&N Dec. 612 (BIA 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. In the
instant case, the petitioner has established that it employed the beneficiary since August 2004, and paid the
beneficiary $6,720.00 for the calendar quarter ending June 30, 2005.
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 contrary to counsel's
appellate assertion. 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),
afj'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross sales and profits exceeded the proffered
Page 5
wage is misplaced. Showing that the petitioner's gross sales and profits exceeded the proffered wage is
insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient.
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay:
• In 2001, the Form 1120 stated net income of$16,982.00.
• In 2002, the Form 1120 stated net income of$9,357.00.
• In 2003, the Form 1120 stated net income 0[$17,660.00.
• In 2004, the Form 1120 stated net income of$18,374.00.
Since the proffered wage is $28,995.20 per year per year, the petitioner did not have the ability to pay the
proffered wage from an examination of its net income for years 2001, 2002, 2003 and 2004, or the difference
between wages actually paid and the proffered wage.
If the net income the petitioner demonstrates it had available during the 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.
We reject, however, the idea 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 demon'strating the ability to pay the proffered wage.
Net current assets are the difference between the petiti~ner's current assets and current liabilities.3 A
corporation's year-end current assets are shown on Schedule L, lines 1 through 6 and include cash-on-hand.
Its year-end current liabilities are shown on lines 16 through l~. 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.
• Thepetitioner's net current assets during 2001 were $110,436.00; in, 2002, 2003 and
2004 were not stated.
Therefore, for 2002, 2003 and 2004, the petitioner did not have sufficient net current assets to pay the
proffered wage.
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.
3 According to Barron's Dictionary ofAccounting Terms 117 (3Td 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.118.
I
Page 6
As stated, counsel asserts that the petitioner's income for the year 2005 is evidence of the petitioner's ability
to pay the proffered wage. Counsel submits the petitioner's income statement and balance sheet dated as of
September 30,2005. Counsel's reliance on unaudited fmancial records is misplaced. The regulation at 8 C.F.R.
§ 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its ability to
pay the proffered wage, those financial statements must be audited. As there is no accountant's report
accompanying these statements, the AAO cannot conclude that they are audited statements. Unaudited
financial statements are the representations of management. The unsupported representations of management
are not reliable evidence and are insufficient to demonstrate the ability to pay the proffered wage.
Counsel's reliance on the balaIlces in the petitioner's bank account is misplaced. First, bank statements are not
among the thred 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 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 determining the
petitioner's net current assets. Finally, because the petitioner did not file a Schedule L to its return or submit
audited financial statements, the cash reflected in the petitioner's bank accounts has not been balanced against its
current liabilities, and, it does not provide enough information concerning its net current assets.
The evidence submitted fails to establish that the petitioner has the continuing ability to pay the proffered
wage beginning on the pnority date.
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.