dismissed EB-3 Case: Paper Supply

tdatity'i data deleted ta 
prevent clearly unwanand 
inV8Sionof~aal privacy 
U.S. Deparlmcnt of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. tj 1153(b)(3) 
ON BEHALF OF PETITIONER: 
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 Director, California Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a paper supplier. It seeks to employ the beneficiary permanently in the United States as an 
account executive. 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 August 29, 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 permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 4 204.5(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. 4 
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 August 7,2001.~ The proffered wage as stated on the Form ETA 
750 is $83,500.00 per year. The Form ETA 750 states that the position requires four years of experience in 
the proffered position. 
I 
 For reference purposes, this is the second petition filed by the petitioner for the beneficiary. The first 
petition identified in CIS records as WAC 03 171 5441 8 was denied on March 26,2004. 
Page 3 
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.3 
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 (found in the 
previous petition's file); a cover letter dated July 28, 2004; a prior director's decision dated April 29, 2004 
concerning the first petition filed by the petitioner for the beneficiary that was denied; a letter dated March 8, 
2004, from - ; Wage and Tax Statement (W-2) for the years 1999; 
2000, 2001 and 2002 from the petitioner to the beneficiary; and, approximately 212 pages of the petitioner's 
bank statements for June 1, 2001 through August 31, 2002, and, approximately 177 pages of the petitioner's 
bank statements September 1,2002 to May 3 1,2003. 
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 1993 and to currently employ 14 workers. 
According to the tax returns in the record, the petitioner's fiscal year is not based on a calendar year. In 200 1, 
the tax year was stated as June 1,2001 to May 3 1,2002. In 2002, the tax year was stated June 1,2002 to May 
3 1, 2003. In 2003, the tax year was stated as January 1, 2003 to May 3 1, 2004. On the Citizenship and 
Immigration Services (CIS) Form G-325A submitted with an adjustment of status application, the beneficiary 
claimed to have worked for the petitioner since January 1, 1997. 
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. 4 204.5(g)(2), the director requested on April 19,2005, pertinent evidence of the petitioner's ability to pay 
the proffered wage begnning 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 2002,2003 and 2004. 
The director requested that the petitioner provide copies of the beneficiary's Form 1040 U.S. federal income tax 
returns, and W-2 Wage and Tax Statements for 2003 and 2004. The director also requested, inter alia, the 
beneficiary's three most recent pay statements. 
* It has been approximately six years since the Alien Employment Application has been accepted and the 
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." 
The submission of additional evidence on appeal is allowed by the instructions to the CIS Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. 3 103.2(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 priority date in this case is August 7, 2001. W-2 and pay statements as well as tax returns submitted for 
years prior to the priority date have little probative value in the determination of the ability to pay from the 
priority date. 
Page 4 
The director requested, inter alia, 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 requests, counsel submitted copies of the following documents: an explanatory 
letter from counsel dated July 11, 2005; Wage and Tax Statement (W-2) for the years 1999, 2000, 2001, 
2002,2003 and 2004 from the petitioner to the beneficiary; three pay statements; four U.S. federal income tax 
returns Form 1120 for 2000, 2001, 2002 and 2003; and, approximately 212 pages of the petitioner's bank 
statements for June 1, 2001 through August 31, 2002, and, approximately 177 pages of the petitioner's bank 
statements September 1,2002 to May 3 1,2003. 
On appeal, the petitioner asserts that that the petitioner's liquid assets as evidenced in the bank statements 
submitted into evidence are evidence of the ability to pay the proffered wage. Counsel also states enerall 
that the director departed from CIS policy. Counsel references a May 21 [sic], 2004 memo issued by 
to support his assertions. 
Yl 
Counsel cites various federal court cases in support of his contention that the director abused his discretion by 
departing from established policies. The AAO is not bound to follow the published decision of a United 
States district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 
1993). Although the reasoning underlying a district judge's decision will be given due consideration when it 
is properly before the AAO, the analysis does not have to be followed as a matter of law. Id. at 719. 
Counsel cites the statutory and regulatory framework of the nonimrnigrant H-1B visa, and, he attempts to 
apply them in this immigrant visa matter. As a preface to the following discussion, the regulations for non- 
immigrant H1B petitions are markedly different from those pertaining to immigrant petitions. Counsel's 
assertions take the applicable statutory and regulatory interpretations out of their context. When petitions on 
their face, do or do not demonstrate eligibility for the preference visa classification sought, the director may 
review and act upon the petition as submitted. See CIS Interoffice Memorandum (HQOPRD 90116.45) dated 
May 4, 2004. See also 8 C.F.R. $ 103.20>)(8). Further, as this present appeal demonstrates, the petitioner 
may introduce additional evidence and introduce case precedent in support of its position in a de novo review. 
Accompanying the appeal, counsel submits additional evidence that includes copies of the following 
documents: Wage and Tax Statement (W-2) for the years 1999, 2000, 2001, 2002, 2003 and 2004 from the 
petitioner to the beneficiary; three pay statements; the decision of the director dated August 29, 2005; four 
U.S. federal income tax returns Form 1 120 for 2000,200 1, 2002 and 2003; and, approximately 2 12 pages of 
the petitioner's bank statements for June 1, 2001 through August 31, 2002, and, approximately 177 pages of 
the petitioner's bank statements September 1,2002 to May 3 1,2003. 
The petitioner must establish that its job offer to thk 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, Citizenship and Immigration Services (CIS) 
requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, 
Page 5 
although the totality of the circumstances affecting the petitioning business will be considered if the evidence 
warrants such consideration. See Matter of Sonegawa, 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 consideredprima 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 from the priority date and paid the 
beneficiary according to the W-2 statements and pay statements submitted5 as follows: in 2001, $43,665.99; 
in 2002, $46,720.01; in 2003, $43,398.16; and in 2004, $44,258.96. Two pay statements were submitted for 
pay periods May 13, 2005 and May 20, 2005. The May 20, 2005 statement demonstrates year-to-date 
earnings of $13,182.00. Since the proffered wage is $83,500.00 per year, the petitioner has not paid the 
beneficiary the proffered wage from the evidence submitted. 
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), afld, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross sales and profits exceeded the proffered 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 no net income of $0.00. 
In 2002, the Form 1120 stated no net income of $0.00. 
In 2003, the Form 1120 stated a loss of <$54,585.00>~. 
Since the proffered wage is $83,500.00 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 and 2003 or the difference between wages 
actually paid and the proffered wage. We note that the director requested the 2004 tax return, but although 
there has been sufficient time for the return to have been filed by the petitioner, no return was submitted. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(14). 
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. The petitioner's total assets include depreciable assets that the petitioner 
5 
In 1999, the W-2 statements submitted stated total wages paid of $38,140.98, and, in 2000, $39,832.73. 
6 
 The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
Page 6 
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 petitiqner'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 ~iabilities.~ 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 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 <$136,382.00>; during 2002 
were <$71,24 1.00>; and, during 2003 were <$53,944.00>. 
Therefore, for the years examined, 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. 
The petitioner asserts on appeal that that the petitioner's liquid assets as evidenced in the bank statements 
submitted into evidence are evidence of the ability to pay the proffered wage. A review of the record of 
proceeding relative to that liquid assets appears to a CIS Interoffice Memorandum (HQOPRD 90116.45) dated 
May 4,2004. Net current assets are stated there as an indicator used to determine an employer's ability to pay 
the proffered wage. One component of net current assets is cash on hand but counsel's reliance on the 
balances 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. 8 204.5(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. 5 204.5(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 was be considered in determining the petitioner's net current assets. 
The evidence submitted fails to establish that the petitioner has 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. 
3 136 1. The petitioner has not met that burden. 
7 
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 11 8. 
ORDER: The appeal is dismissed.