dismissed EB-3 Case: Painting Services

PUBLIC COPY 
* 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: a'T 1 1 2008 
SRC 05 063 51430 
PETITION: Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to $203(b)(3) of 
the Immigration and Nationality Act, 8 U.S.C. $ 11530>)(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. 
kobert 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 Ofice on appeal. The appeal will be dismissed. 
The petitioner' is a paint services. It seeks to employ the beneficiary permanently in the United States as a 
supervisor paint department. As required by statute, the petition is accompanied by a Form ETA 750, 
Apglication for Alien Employment Certification. approved by the U. S. Department of Labor. The director 
deteril~ined 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 dircctor denied the petition 
accordingly. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The regulation at 8 C.F.R. 3 204.5(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 regulation at 8 CFR § 204.50)(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. 
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 Home, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 24,2001. The proffered wage as stated on the Form ETA 
750 is $49,500.00 per year. The Form ETA 750 states that the position requires four years of experience. 
On appeal, counsel submits a legal brief and additional evidence. 
The petitioner is variously named Boca Rio Paint (or Paints) Inc. in the record of proceeding. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; one page of a 
U.S. Internal Revenue Service Form tax return; 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 pertinent evldence of the petitioner's abillty to pay the profkred \\age 
beginn~ng on the priority date. 
The director requested the petitioner's U.S. federal tax returns for 2001 and 2002 as well as the beneficiary's W-2 
Wage and Tax Statements for 2002 and 2003. 
In response to the request for evidence, counsel submitted copies of the following documents: the petitioner's 
U.S. Internal Revenue Service (IRS) tax returns for years 2002, 2003, and 2004, and, counsel submitted a 
Citizenship and Immigration Services (CIS) Interoffice Memorandum (HQOPRD 90/16.45) dated May 4, 
2004. 
Because the director determined, inter alia, 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, the 
director issued a notice of intent to deny on March 22, 2005, pertinent evidence of the petitioner's ability to pay 
the proffered wage beginning on the priority date. The director requested audited financial statements for the 
petitioner for the years 2001, 2002, 2003 and 2004,"nd, the latest IRS Form W-3 statement for all the 
petitioner's employees. 
In response to a notice of intent to deny, counsel submitted, inter alia, copies of the following documents: 
Form W-3 Transmittal of Wage and Tax statement for 2004, the petitioner's U.S. federal tax returns for the 
petitioner for the years 2001, 2002,2003 and 2004, and, a CIS Interoffice Memorandum (HQOPRD 90116.45) 
dated May 4,2004. 
The W-3 statement, mentioned above, stated wages paid for as $25,480.00 in 2004. 
The director denied the petition on April 27, 2005, finding that the evidence submitted did not establish that 
the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.3 
2 
 Counsel, on appeal, states that audited financial statement were not submitted because there is no reason to 
have them, or, to incur the expense of preparation. See 8 C.F.R. 
 204.5(g)(2). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter oflaureano, 19 
I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
3 
 The director questioned why the seeks to employ the beneficiary permanently in the United States as a 
supervisor in its paint department if the petitioner submitted evidence that it had one employee in 2004. If 
this matter is pursued, this issue should be addressed. 
Page 4 
Counsel has submitted the following documents to accompany the appeal statement: a letter from the 
petitioner's accountant dated June 20,2005; the petitioner's US. Internal Revenue Service (IRS) tax returns for 
years 2002,2003, and 2004; a letter &om the President and owner of the petitioner dated June 19,2005; Chassan 
Professional Wallcovering Inc. US. Internal Revenue Service (IRS) tax returns for years 2001 2002, 2003; the 
owner of petitioner's personal joint tax returns for years 201, 2002, 2003, and 2004; a joint venture agreement 
dated June 1, 2001 between Chassan Professional Wallcovering Inc. and the petitioner; a W-3 statement by 
Chassan Professional Wallcovering Inc. as well as corporate documents relating to Chassan Professional 
Wallcovering Inc. 
In determining the petitioner's ability to pay the proffered 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. No evidence was submitted to show that the petitioner 
employed the beneficiary. 
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. 
The court specifically rejected the argument that CIS should have considered income before expenses were 
paid rather than net income. 
The tax returns demonstrated the following financial infornlation concerning the petitioner's ability to pay the 
proffered wage of $49,500.00 per year from the priority date of April 24, 200 1 : 
In 2001, the Form 1120s stated a taxable income loss of 41 1,795.00>. 
* 
 In 2002, the Form 1 120s stated taxable income of $5,610.00. 
In 2003, the Form 1 120s stated taxable income of $1 7,147.00. 
In 2004, the Form 1120s stated a taxable income loss of <$2,777.00>. 
The taxable income and losses stated above for the years 2001, 2002, 2003 and 2004 are insufficient to pay the 
proffered wage. 
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 ~iabilities.~ 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. 
4 
 According to Barron's Dictionary of Accounting Terms 117 (3* 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. 
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 1120 return stated current assets of $57,759.00 and $55,030.00 in current 
liabilities. Therefore, the petitioner had $1,929.00 in net current assets. Since the proffered wage is 
$49,500.00 per year, this sum is less than the proffered wage. 
In 2002. petitioner's Fonn 1120 rdum stated currcnt assets of $59,301.00 and $50,189.00 in current 
liabilities. Therefore, the petitloner had $9,112.00 in net current assets. Slnce tl~c proffered wage is 
$49,500.00 per year, this sum is less than the proffered wage. 
In 2003, petitioner's Form 1120 return stated current assets of $1 16,252.00 and $89,135.00 in current 
liabilities. Therefore, the petitioner had $27,117.00 in net current assets. Since the proffered wage is 
$49,500.00 per year, this sum is less than the proffered wage. 
In 2004, petitioner's Form 1120 return stated current assets of $65,348.00 and $42,123.00 in current 
liabilities. Therefore, the petitioner had $23,225.00 in net current assets. Since the proffered wage is 
$49,500.00 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. 
On appeal, has submitted a legal brief. Counsel states in the brief that the petitioner utilizes "accelerated 
depreciation to minimize tax liability." Petitioner's counsel advocates the addition of depreciation taken as a 
deduction in those years' tax returns to eliminate the abovementioned deficiencies. Since depreciation is a 
deduction in the calculation of taxable income on tax Form 1120S, this method would eliminate depreciation 
as a factor in the calculation of taxable income. 
There is established legal precedent against counsel's contention that depreciation may be a source to pay the 
proffered wage. The court in Chi-Feng Clzang v. Thornburg, 719 F. Supp. 532 (N.D. Tex. 1989) noted: 
Plaintiffs also contend that depreciation amounts on the 1982 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 incomefigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Original emphasis.) Chi-Feng at 537. 
As stated above, following established legal precedent, CIS relied on the petitioner's net income without 
consideration of any depreciation deductions, in its determinations of the ability to pay the proffered wage on 
and after the priority date. 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. Suva, Supra at 1054. 
In line with the above, counsel stated on appeal that the company's tax returns submitted do not demonstrate 
the petitioner's "financial viability" since it uses accounting methods "to minimize tax liabilities." However, 
reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered 
Page 6 
wage is well established by judicial precedent. EZatos Restaurant Corp. v. Sava, 632 F.Supp. 1049, 1054 
(S.D.N.Y. 1986) (citing Tongatapu Woodcrafl Hawaii, Ltd. v. Feldman, 736 F.2d 1305, (9th Cir. 1984)); see 
also Chi-Feng Chang v. Thornburgh, 7 19 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). 
In support of the abox~e contention, Counsel asserts that a decision of the AAO requires CTS to consider 
"nonnal accounting practices of the company in the face of tax returns that do not prov~de evidence of the 
ability to pay the proffered wage. Counsel cites an unpublished AAO case for the proposition that, according 
to counsel, accelerated depreciation to minimize tax liability as this deduction is taken as a normal accounting 
practice of the petitioner. Therefore, counsel by a logical extension of his assertion is requesting that the 
AAO consider the depreciation taken on the petitioner's tax return as, not a deduction but as an asset, which 
as is stated above is contrary to case precedent. 
While 8 C.F.R. 8 103.3(c) provides that precedent decisions of CIS are binding on all its employees in the 
administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. $ 103.9(a). The AAO reviews 
appeals on a de novo basis. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Each of counsel's 
contentions in this matter has been discussed. Each case must be reviewed upon its own merits, and by 
definition, each case has its own particular fact situation that may result, and often does, in differing legal 
analysis and applicable of regulation. 
Counsel also asserts in his brief statement that the determination of the petitioner's "liquidity and viability for 
purposes of its ability to pay the proffered wage" is by an examination of the petitioner's "gross receipts and 
total income values."' In K.C.P. Food Co., Inc. v. Sava, Szdpra at 1084, 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. 
Counsel asserts that it would be unfair to deny the petition because the petitioner, although requested by the 
director, did not submit audited financial  statement^.^ Failure to submit requested ev~dence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2@)(14). Audited financial 
statements are required by regulation, (See 8 C.F.R. $ 204.5(g)(2)), as proof of the ability to pay the proffered 
wage. The submission of audited financials are one way to prove the ability to pay the ability to pay the 
proffered wage. See CIS Interoffice Memorandum (HQOPRD 90/16.45) dated May 4, 2004. Other methods 
5 
 IRS Form 1 120S, Line 6. 
6 
 A compilation is limited to presenting in the form of financial statements information that is the 
representation of management. 
 An audit is conducted in accordance with generally accepted auditing 
standards to obtain reasonable assurance whether the financial statements of the business are free of material 
misstatement. A review is a financial statement between an audit and a compilation. Reviews are governed 
by the AICPA's (American Institute of Certified Public Accountants) Statement on Standards for Accounting 
and Review Services (SSARS) No. 1. Accountants only express limited assurances in reviews. A compilation 
is the management's representation of its financial position. Evidence of the ability to pay shall be, inter alia, 
in the form of copies of audited financial statements with a declaration of the maker indicating their manner 
of preparation and certifying the financial statements to be audited. Non-audited financials have limited 
evidentiary weight in Service deliberations in these matters. The accountant's statement presented was not 
audited. 
Page 7 
as stated in the memorandum are stated above in a discussion of the financial evidence that the petitioner did 
submit in this matter. 
Counsel states that the "full resources" available to the petitioner are evidence of its ability to pay the 
proffered wage. Counsel is citing Ranchito Coletero, 2002-INA-104 (2004 BALCA), for that the overall 
financial circumstances of the petitioner should be considered in the determination of the ability to pay the 
proffered wage. That case precedent stands for the premise that entities in an agricultural buciness may 
regularly fail to show profits and typically rely upon indi~~idual or fanlily assets for continuation of their 
agricultural enterprise, Counsel does not state how the Department of Labor's (DOL) Bureau of Alien Labor 
Certification Appeals (BALCA) precedent is binding on the AAO. While 8 C.F.R. $ 103.3(c) provides that 
precedent decisions of CIS are binding on 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. Ej 103.9(a). Moreover, Rancfaito Coletero deals with a sole proprietorship and is not 
directly applicable to the instant petition, which deals with a corporation. 
Counsel submits a letter from the owner of the petitioner who states that he would "pledge the use of all 
resources available to me to pay . . . [the beneficiary] his stated wage."' Counsel refers to the letter submitted 
by the owner of petitioner as a "personal guaranty." Further the petitioner's owner offers the financial 
support of another paint company that shares common ownership and control. While under common control, 
it is an elementary rule that a corporation is a separate and distinct legal entity from its owners and 
shareholders or other corporations. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite 
Investnaents, 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. Petitioner has 
submitted no legally binding agreements between the owner of petitioner and the beneficiary, or the two 
companies that that would ensure that beneficiary would be paid the proffered wage. Further, since the 
petitioner is the employer of the beneficiary it is its resources that are determinative of its ability to pay the 
proffered wage. 
In the letter above mentioned, the owner of petitioner without substantiation states that the events of 
September 11, 2001 impacted the petitioner's business as it effected the Southern Florida hotel business on 
which it depends, and therefore impacted its profitability, and that the petitioner has reasonable expectations 
of increased profitability. The unsupported assertions of the petitioner 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). 
Four years of tax return statements of financial results as stated above do not support the petitioner's statement. 
Three years after the terrorist attacks the petitioner has demonstrated only modest profits and an income loss, 
substantially below the proffered wage of $49,500.00 per year. It is incumbent upon the petitioner to resolve 
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
In the totality of all the evidence submitted in this case, there is evidence to demonstrate that the petitioner's 
business was in an unprofitable period in 2001, 2002, 2003 and 2004. In 2001, the petitioner's Form 1120s 
' The petitioner owner's personal tax returns were submitted into evidence. 
stated a taxable income loss of <$I 1,795.00>, in 2002, a taxable income of $5,610.00, in 2003 a taxable income 
of $17,147.00, and, in 2004, a taxable income loss of <$2,777.00>. 
The net current asset values for those years are substantially under the proffered wage of $49,500.00 per year. 
In 2001, petitioner's Form 1120 return evidenced the petitioner had $1,929.00 in net current assets, in 2002 
$9,112.00 in net current assets, in 2003 $27,117.00 in net current assets, and, it decreased to $23,225.00 in 
2004. 
lZrl~ttel. of Sonegu>.t~~r, 12 I&N Dec. 612 (BIA 1967), relates to petitions filed during u~~cl~aractenst~cally 
unprofitable or difficult years but only in a framework of profitable or successful years. 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. 
Unusual and unique circumstances have not been shown to exist in this case to parallel those in Sonegnwu, to 
establish that the period examined was an uncharacteristically unprofitable period for the petitioner. Counsel 
asserts that "the petitioner's expectations of continued increase in business and increasing profits" are 
reasonable expectations are evidence of the ability to pay the proffered wage. The petitioner, for the four 
years examined from the priority date, has stated profits or losses of <$11,795.00>, $5,610.00, $17,147.00, 
and, <$2,777.00> respectively. There are no "increasing profits" evident from the record of proceeding. As 
already stated above, 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 of Ho, 19 
I&N Dec. 582,591-92 (BIA 1988). By the evidence presented, the petitioner has not proved its ability to pay 
the proffered wage. 
Counsel cites Full Gospel Portland Church v. Thornburgh, 730 F. Supp. 441 (D.D.C. 1988). The decision in 
FUN Gospel is not binding here. Although the AAO may consider the reasoning of the decision, the AAO is 
not bound to follow the published decision of a United States district court in cases arising within the same 
district. See Mutter of K-S-, 20 I&N Dec. 715 @IA 1993). Further, the decision in Full Gospel is 
distinguishable &om the instant case. The court in Full Gospel ruled that CIS should consider the pledges of 
parishioners in determining a church's ability to pay wages. Here, counsel's assertion is that CIS should treat 
the petitioner's reasonable expectations of increased business, and, the owner of petitioner's "personal 
financial support" as evidence of its ability to pay. Counsel further cites the above case for the proposition 
that, analogous to what counsel perceives is the holding in the case, "the [Church] need not be hlly self- 
reliant" therefore, the petitioner need not have the ability to pay the proffered wage so long as there are 
additional resources mentioned above to pay the proffered wage. Since the additional resources are a personal 
promise by the petitioner's owner, case precedent is contrary to this contention or chain of assertions. 
Page 9 
Counsel has submitted the tax returnss of another separate corporation, Chassan Professional Wallcovering 
Inc., as proof of the petitioner, Boca Rio Paints Inc.'s ability to pay the proffered wage. Counsel, through that 
corporation's accountant statements, explains why those tax returns do not "llly reflect its current assets and 
financial viability." An examination of the accounting practices of another separate corporation is not 
relevant or admissible evidence in this matter. Contrary to counsel's assertion, 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 fro1-n its 
owners and shareholders. See Mutter of M, 8 I&N Dec. 24 (BIA 1958), Mrttcr* of Apilrodite Zi~ve.s~.stn~sit.s, 
Ltd, 17 I&N Dcc. 530 (Coillm. 1980), and hfa1tc.l. of Tcssel, 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. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The second issue discussed is the contention by counsel and the finding by the director that resulted from the 
duties described in the labor certification for the job. Form ETA 750 A, Sections 9 and '13, state the 
following: 
9. Name of Job Title 
Supervisor, Paint Dept. 
DOT 749.131-014 
13. Describe Fully the Job to be Performed (Duties) 
Supervises and coordinates activities of workers engaged in mixing paint, preparing surface 
of object to be Painnted [sic], painting object or project. Responsible for determining paint 
mixture formulas. Must have experience with "Porter" brand paint. 
The director questioned why the petitioner seeks to employ the beneficiary permanently in the United States 
as a supervisor in its paint department if the petitioner submitted evidence that it had one employee in 2004, 
and therefore questioned the bona fide of the job offer. 
In the brief submitted, counsel stated in pertinent part the following: 
[Tlhe Service's confusion concerning the beneficiary's employment as paint department 
supervisor can be clarified. While the Service could not understand how he "would be 
responsible supervising . . . of all the workers engaged in painting" when they [CIS] 
were"[led] to believe there is on1 one em loyee for this company," the beneficiary will be 
providing services to both of a companies, Boca Rio Paint, Inc. and Chassan 
Professional Wallcovering, Inc. . . . . 
In determining the respective jurisdictions of the Department of Labor and the CIS, one may turn to the entire 
body of recent court proceedings interpreting the interplay of the agencies and strictly confining the final 
determination made by the Department of Labor. See Stewart Infia-Red Commissary, Etc. v. Coomey, 661 F.2d 
8 
 The tax returns state taxable incomes (IRS Form 1120, Line 28) of $13,458, $87,807, and <$48,876.00> in 
tax years 200 1,2002 and 2003. 
1 (1st Cir. 1981); Denver Tofu Company v. District Director, Etc., 525 F. Supp. 254 (D. Colo. 1981); and, 
Joseph v. Landon, 679 F.2d 113 (7th Cir. 1982). 
These cases recognize the labor certification process and the authority of the Department of Labor in this 
process stem from section 214(a)(14) of the Act, 8 U.S.C. 1182(a)(14). In tabor certification proceedings, the 
Secretary of Labor's determination is limited to analysis of the relevant job market conditions and the effect, 
which the gant of a visa would have on the enlploylnent situation. The CIS, through tlle statutorily ~mposed 
requirement found in section 204 of the Act, 8 U.S.C. 1154, must investigate the facts In each casc and, after 
consuItat~on with the Department of Labor, determine if thc material facts 111 the petition i~icludl~lg thc 
certification are true. 
Although the advisory opinions of other Government agencies are given considerable weight, the Service has 
authority to make the final decision about a beneficiary's eligibility for occupational preference classification. 
The Department of Labor is responsible for decisions about the availability of United States workers and the 
effect of a prospective employee's employment on wages and working conditions. The Department of Labor's 
decisions concerning these factors, however, do not limit the CIS'S authority regarding eligxbility for 
occupational preference classification. Therefore, the issuance of a labor certification does not necessarily mean 
a visa petition will be approved. 
The above statement will be considered an admission against the petitioner's interest in this matter. The 
petitioner did not disclose that fact of joint employment by two corporations of the beneficiary (according to 
an existing agreement mentioned below) to CIS when it initially filed the petition, nor is it indicated that it 
made the appropriate disclosure to the Department of Labor (DOL) during the alien labor certification 
application process, since there is no such inclusion in the purportedly complete copy of the alien labor 
certification filing submitted to DOL that the petitioner submitted to CIS in response to the director's notice 
of intent to deny. In the record of proceeding is a joint venture agreement dated June 1,2001 between Chassan 
Professional Wallcovering Inc. and the petitioner agreeing to share employees and their services without 
mention of additional compensation for their "shared services." 
According to DOL precedent and regulations, under 20 C.F.R. $8 626.20(~)(8) and 656.3, the petitioner has 
the burden when asked to show that a valid employment relationship exists, that a bona$de job opportunity is 
available to U.S. workers. 
 See Matter of Amger Corp., 87-INA-545 (BALCA 1987). 
 According to 
statements made by the owner of petitioner and counsel representing the petitioner in the record of 
proceeding, there was an intent that the beneficiary would be employed by both corporations and relying upon 
both the owner of petitioner and Chassan Professional Wallcovering, Inc. to pay or help pay the proffered 
wage. The failure to make critical disclosures to DOL and CIS initially undermined the labor certification 
process. The k40 cannot conclude that the petitioner is extending a bonafide job offer to the beneficiary. 
The petitioner Boca Rio Paint (or Paints) Inc. is the sole employer and petitioner in this matter with the legal 
obligation to employ the beneficiary not Chassan Professional Wallcovering, Inc. 
The evidence submitted does not demonstrate credibly by a preponderance of evidence that a bona $de job 
opportunity is available to U.S. workers. 
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 four 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. 
Page 11 
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.