dismissed EB-3 Case: Plumbing

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
Office: VERMONT SERVICE CENTER 
 Date: 4PR 0 2 
EAC 05 133 50707 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional Dursuant to 
section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. tj 1 1 ~jo(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 Oflice 
CC: NUSERT A. HAKER 
HAKER & OZISIK LLP 
29 BROADWAY, STE I500 
NEW YORK NY 10006 
Page 2 
DISCUSSION: 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 plumbing services corporation. It seeks to employ the beneficiary permanently in 
the United States as a plumber. As required by statute, the petition is accompanied by a Form ETA 
750, Application for Alien Employment Certification, 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. 
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, 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. 
1 153(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. 5 204.5(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. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 24,2001. The proffered wage as stated on the Form 
ETA 750 is $39.16 per hour ($81,452.80 per year). The Form ETA 750 states that the position 
requires two years of experience. 
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 appeal1. Counsel did submit evidence on appeal. On appeal, counsel submitted copies of the 
following documents: the director's decision dated July 25, 2005; a cover letter dated August 22, 
2005; an undated statement from the petitioner; an undated "Affirmation of Attorney;" the case 
precedent of Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966); and, the petitioner's U.S. federal 
income tax returns, form 1 120S, for 200 1,2002,2003, and 2004. 
Other relevant evidence in the record includes a letter from the petitioner dated February 11, 2005, 
offering the beneficiary a position of "plumber help" at $8.50 per hour for a forty hour work week;2 
as well as personal documentation concerning the beneficiary. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. 
On the petition, the petitioner claimed to have been established in 1989 and to currently employ 25 
workers. 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 on, the beneficiary did not claim to have 
worked for the petitioner. 
On appeal, counsel asserts that the petitioner is financially able to pay the proffered wage. Counsel 
contends that the director interpreted incorrectly the fmancial status of the petitioner, and that Matter 
of Brantigan, 1 1 I&N Dec. 493 (BIA 1966) cited by the director is not applicable to the case.3 
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 C.F.R. 8 204.5(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 of 
Sonegawa, 12 I&N Dec. 6 12 (Reg. Cornm. 1967). 
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). 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). 
* No wages paid data was submitted for the beneficiary. 
In visa petition proceedings, the standard of proof is on the petitioner. The burden is on the 
petitioner to establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 
(BIA 1966). The petitioner must prove by a preponderance of evidence that the beneficiary is fully 
qualified for the benefit sought. Matter of Martinez, 2 1 I&N Dec. 1035, 1036 (BIA 1997); Matter of 
Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965). 
Page 4 
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 not established that it employed and 
paid the beneficiary the full proffered wage during any relevant timeframe including the period from 
the priority date in 200 1 or subsequently. 
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. Suva, 632 F. 
Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraj 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)' aTdY 703 F.2d 571 (7th Cir. 1983). 
The petitioner asserts in his undated statement accompanying the appeal that there is another way to 
determine the petitioner's continuing ability to pay the proffered wage from the priority date, that is 
from the gross income of the business from which the beneficiary's salary will be paid as business 
expense and under labor cost. Reliance on the petitioner's gross receipts and 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. 
Plaintiffs' 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 tax returns demonstrate the following financial information concerning the petitioner's ability to 
pay the proffered wage of $81,452.80 per year per year from the priority date of April 24,2001: 
In 2001, the Form 1120s stated net income4 of $39,159.00. 
- - --- 
Ordinary income (loss) from trade or business activities as reported on Line 2 1. Internal Revenue 
Page 5 
In 2002, the form 1120s stated net income of $74,735.00. 
In 2003, the form 1120s stated net income of $74,973.00. 
In 2004, the form 1120s stated net income of $98,455.00. 
Therefore, for the years 200 1,2002 and 2003 the petitioner did not have sufficient net income to pay 
the proffered wage. 
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. We reject, however, counsel's idea that 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, including real property that counsel asserts should be considered. 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 thk 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. 
For tax year 200 1, the petitioner's net current assets during were <$18,76 1.00>.~ 
Service Form 1 120S, Line 2 1, states the petitioner's ordinary business income or loss. 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 2 1 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 21,"Where an S 
corporation has income fkom 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 1120S, but on lines I 
through 6 of the Schedule K, Shareholders' Shares of Income, Credits, Deductions, etc. See Internal 
Revenue Service, Instructions for Form 1120S, 2003, at http://www.irsg;ov/pub/irs-03/i1120s.udf, 
Instructions for Form 1120S, 2002, at httu://www.irs.~ov/~ub/irs-02/i1 120s.pdfY (accessed February 
15,2005). 
5 
According to Burron's Dictionmy 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. 
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 
For tax year 2002, the petitioner's net current assets during were <$39,726.00>. 
For tax year 2003, the petitioner's net current assets during were <$25,5 14.00>. 
For tax year 2004, the petitioner's net current assets during were <$11,595.00>. 
Therefore, for the years 2001, 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. 
The petitioner contends that the business' inability to hire the beneficiary, as a plumber would cause a 
hardship to the business. In this instance, no detail or documentation has been provided to explain 
how the beneficiary's employment as plumber will generate enough gross income to offset the cost of 
his employment. The petitioner assertion is erroneous. Proof of ability to pay begins on the priority 
date, April 24, 2001, that is, when petitioner's Application for Alien Employment Certification was 
accepted for processing by the U. S. Department of Labor. Petitioner's net income is examined from 
the priority date. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). It is not examined 
contingent upon some event in the future. This hypothesis cannot be concluded to outweigh the 
evidence presented in the corporate tax returns 
Counsel asserts that the petitioner's gross income, gross profit and labor cost gain over the years is 
"clear proof' of the petitioner's "ability to expand its capital and gain based on increasing cost of 
labor each year." It unclear from counsel's assertion what relation this statement has to the ability of 
the petitioner to pay the proffered wage. As already stated above, "reliance on the petitioner's gross 
receipts and wage expense is misplaced." See K C.P. Food Co., Inc, Id. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax 
returns for 2001, 2002 and 2003 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 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. 3 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.