dismissed EB-3 Case: Real Estate Development

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
iasaifiing data deleted to 
went clearly unwmtd 
invasion of personal privacy 
U.S. Citizenship 
and Immigration 
PUBLIC copy 
FILE: Office: VERMONT SERVICE CENTER Date: 
EAC 04 142 50463 
 MAY 1 6 2006 
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. § 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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a real estate housing development corporation. 
 It seeks to employ the beneficiary 
permanently in the United States as an assistant manager and caregiver. 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. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 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. $ 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 $ 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slalled 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 House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 27, 2001. The proffered wage as stated on the Form ETA 
750 is $650.00 per week ($33,800.00 per year). The Form ETA 750 states that the position requires three 
months experience. 
On appeal, the petitioner submits additional evidence. 
Page 3 
With the petition, the petitioner submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; a U.S. Internal 
Revenue Service Form tax returns for 2001; a realty sales agreement; an appraisal report; and, copies of 
documentation concerning the beneficiary's qualifications as well as other documentation. 
The director denied the petition on August 17, 2004, 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. 
On appeal, the petitioner asserts that the valuation in an appraisal that was rejected as evidence of the ability 
to pay was owned by the petitioner as of March 29, 2001. Since the appraisal states a valuation of 
$425,000.00, the petitioner asserts that the realty should be considered as an asset and evidence of the 
petitioner's ability to pay the proffered wage. 
The petitioner has submitted copies of the following documents to accompany the appeal statement: an 
explanatory letter dated September 18, 2004, and, a plat of a realty development for Hannaford Plaza at 
Milton Center. 
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. 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), affd, 703 
F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, 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. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered income before expenses were paid rather than net income. Finally, 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. Sava, Supra at 1054. 
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $33,800.00 per year from the priority date of April 27,2001: 
In 200 1, the Form 1 120s stated taxable income loss' of <$20,27 1.00>.* 
IRS Form 112054 Line 28. 
2 
 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 4 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage at any time for the year 2001 for which the petitioner's tax return is offered for 
evidence. 
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. 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. 
Examining the Form 1120s U.S. Income Tax Returns submitted by the petitioner, Schedule L found in the 
return indicates the following: 
In 2001, petitioner's Form 1120s return stated current assets of $18,841 .OO and $27,271.00 in 
current liabilities. Therefore, the petitioner had <$8,430.00> in net current assets. Since the 
proffered wage is $33,800.00 per year, this sum is less than the proffered wage. 
Therefore, for the period 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. 
The petitioner asserts in his statement accompanying the appeal that there are other ways to determine the 
petitioner's ability to pay the proffered wage from the priority date. According to regulation: copies of 
annual reports, federal tax returns, or audited financial statements are the means by which petitioner's ability 
to pay is determined. 
The petitioner asserts that the realty in an appraisal that was rejected as evidence of the ability to pay was 
owned by the petitioner as of March 29, 2001. Since the appraisal states a valuation of $425,000.00, the 
petitioner asserts that the realty should be considered as an asset and evidence of the petitioner's ability to pay 
the proffered wage. 
We reject the petitioner's assertion that the petitioner's total assets including realty 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. 
3 
 According to Barron 's Dictionary of Accounting Terms 117 (3rd 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. 
8 C.F.R. 4 204.5(g)(2). 
Page 5 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The petitioner's contentions cannot be concluded to outweigh the evidence presented in the corporate tax 
return 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. 
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.