dismissed EB-3 Case: Real Estate Management

II
,-
identifyingdatadeletedto
preventclearlyunwarr~ted
invasionofpersooalpnvacy
pUBLIC copy
U.S. Department of Homeland Security
- 20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
EAC 04 019 52578
Office: VERMONT SERVICE CENTER Date:~ 24-
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.
~fs,
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov .
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 real estate management company. It seeks to employ. the beneficiary permanently in the
United States as a bookkeeper. As required by statute, the petition is accompanied by a. Form ETA 750,
Application for Alien Employment Certification, approved by the United States Department of Labor (DOL).
As set forth in the director's September 29, 2004 denial, 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.
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.
The regulation 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 DOL. See 8 C.F.R. § 204.5(d). The petitioner
must also demonstrate that, on the priority date, the beneficiary had the qualifications statedonits Form ETA
750, Application for Alien Employment Certification, as certified by the DOL 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 February 8, 2001. The proffered wage as stated on the Form ETA
750 is $11.70 per hour ($24,336.00 per year based on a 40-hour work week). The Form ETA 750 states that
the position requires two years of college education in the field of mathematics, computer literacy, knowledge
of Microsoft Office software and two years of experience in the job offered. . .
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.ld 997,
1002 n. 9 (2d Cir. 1989)(noting that the AAOreviewsappeals on a de novo basis). The AAO considers all
pertinent evidence in the record, including new evidence properly submitted upon appeal.' On appeal,
1 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. §·103,2(a)(1). The record in the instant case
Page 3 .
counsel submitted a brief, a letter dated October 19; 2004 from the petitioner 's President, and IRS Forms
1120S, U.S. Incom~ Tax Returns for an S Corporation , for G,M Canmar Residen~e Corp., for 2001,2002 and
2003. Other relevant evidence in the record includes the 'petitioner 's IRS Forms 1120S , U.S. Income Tax
'Re t ~rn s for an S Corporation , for 2001 and 2002. The record does not contain anyother evidence relevant to .
the petitioner 's ability to paythe wage. . .
The evidencein the record of proceeding shows thatthe petitioner is structured as an Scorporation. On the
petition, the petitioner claimed to have been established in 1992 and to currently .employ three ' 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 January 21, 2001,.the beneficiary claimed 'to have worked for
the petitioner as a bookkeeper .from December 1994 to the date she signed the.Form ETA750B.
On appeal, citing Ohsawa America, 1988-INA-240(BALCA 1988), Ranchito Colet ero, 2002-INA-104 (2004
BALCA) and an unpublished federal ,district court decision , counsel asserts that the personal assets of the two
shareholders of the petitioner may be considered inthe determination of the petitioner's ability to pay the
proffered wage. ' . .
The petitioner must ~stablish 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 la~ful 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 ofGreat Wall, 16I&N Dec. 142 (Acting ~eg . Comm. 1977). See also 8 C.F.R. § 204.5(g)(2);
In determining .the petitioner 's ability to pay the proffered wage during a gi ven .period, 'Citizenship and
Immigration Services (CIS) will first examine whether the petitioner employed and paid the .beneficiary
during that period. Ifthe 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. Inthe 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 2001 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. ElatosRestaurant Corp. v. Sava, 632 F. Supp . 1049, 1054 (S.D.N.Y. 1986)
(citing Tongatapu Wood craft Hawaii, Ltd. v. Feldman , 736 F.2d P05 (9th Cir . 1984»; see also Chi-Feng
provides no reason to preclude ~on sideration of any of the documents newly submitted on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988). ' . ' "
. 2 The record lacks any copies ofIRS Forms W-2 showing wages paid to the beneficiary ; and the record
contains no other evidence of the wages paid to the beneficiary by the petitioner. The record therefore lacks
evidence that the petitioner was paying the proffered wage during the relevant t ime period and lacks ev idence
to determine the amount of any increase which would be necessary toraise the beneficiary 's actual wage to
the proffered wage during that time period. TheAAO therefore must evaluate the petitioner's ability to pay
the entire proffered wage as of the priority date and continuing to the present.
Page A
!. '
, Chang v, Thornburgh , 719 F. Supp . 532 (N.D. Te xas 1989); K.CP. Food Co., Inc. v.:Sava ; 623F. 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).
The record before the director clo s~d on October 27, 2003 . As of that date , the petitioner's 2002 federal
income tax return is the most recent return available. The petitioner 's tax returns demonstrate its net income
for 20"01 and 2002 , as shown in the table below . .
• In 2001, the Form 1120S stated net income ' of -$43,703.00.
• In2002, the Form 1120S stated net income of -$90,846.00.
Therefore, for the years 2001 and 2002, the petitioner did not have sufficie'nt net income to pay the proffered
wage.of $24,336.00. '
". ',.
As an alternate means of determining the petitioner 's ability to pay the proffered wage, CIS may review the
petitioner's net current assets . Net current assets are the difference between the petitioner's current assets and
current liabilities ," 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 theproffered wage using those net current assets . The petitioner 's '
tax returns demonstr~te its end-Of-year net current assets for 2001 and 2002 , as shown in the table below.
, . In 2001 , the Form 1120S stated net current assets of$2 ,106.00.
• In 2002 , the Form 1120S stated net current assets of-$15,284.00.
Therefore , for the years 2001 and 2002 , the petitioner did not have sufficient net current assets to pay the
proffered wage of $24,336.00.
, Thus, from the date the , Form ETA 750 was accepted for processing by the DOL, 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 Where an S corporation 's i ncome is exclusively from a trade or business,CIS considers net income to be the
figure for ordinary 'income, shown on line 21 of page one of the petitioner's Form 1120S. However, where an S ,
corporation has income, credits , deductions or other adjustments from sources other-than a trade or business, they ,
are reported on Schedule K. If the Schedule K has relevant entries .for additionai income or additional credits ,
deductions or other adjustments , net income is found on line 23 of Schedule K~ Because the petitioner had
additional income shown on its Schedule K for 2001 and 2002 , the petitioner 's net income is found on line 23 of
Schedule K of its tax return.
4 According to Barron 's Dictionary ofAccounting Terms 117 (3T ded. 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). !d. at 118. ,
5 CIS electronic records show that thepetitioner filed one other 1-140 petition which has been pending during the ,
', time period relevant to the instant petition . If the instant petition were 'the only petition filed by the petitioner,
the petitioner would be required to produce evidence of its ability to pay the proffered wage to the single
beneficiary of the instant petition. However , where a petitioner has filed multiple petitions for multiple
beneficiaries which have been pending simultaneously , the petitioner must produce evidence that its job offers
Page 5
.Citing a letter from the petitioner's President, counsel asserts in his brief accompanying the appeal that the
personal assets of the two shareholders of the petitioner may be considered in the determination of the
petitioner 's ability to pay the proffered wage. Contrary to counsel 's ·assertion, CIS may not "pierce the .
corporate veil" and look to the assets of the corporation 's owners 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 i 958), Matter of Aphrodite Investments,
Ltd., 17 I&N Dec . 530 (Comm. 198,0), and Matter of Tessel, 17 I&N Dec . 631 (Act. Assoc. Comm. 1980) .6
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.
Counsel states that two DOL Bureau of Alien Labor Certification Appeals (BALCA) cases are applicable to the
instant petition before the Department of HomelandSecurity's AAO. Citingto Ohsawa America, 1988-INA-240
';(BALCA 1988) arid RanchitoColetero, 2002-INA-104 (2004 BALCA), 'counsel a sserts that the personal
assets of the two shareholders 'of the petitioner may be considered in the determination of the petitioner 's
~ ability to pay the proffered wage . However, counsel"does not state how DOL precedent is binding in these
.proceedings. While 8 C.F .R. § 103.3(c) provides thatprecedent decisions of CIS are binding on all its employees
in the administration of the Act, BALCA decisions are not similarly binding . .Precedent decisions mu st be
designated and published in bound volumes or as interimdecisions. 8 C.F.R. § 103.9(a).
·Moreover, counsel does not state that the BALCA panel ,in' Ohsawa America also" considered the fact that the '"
petitioning entity showed increased revenue and decreased operating losses in addition to oneof its shareholder's
willingness to fund the company. In the instant petition, the petitioner shows no revenue and increasing losses.
Thus, in addition to not being binding precedent, Ohsawa America is distinguishable from the facts of the instant
· petition. In addition, Ranchito Coletero deals with a sole proprietorship and is not directly applicable to the
instant petition, which deals with acorporation.
On appeal, counsel also cites an unpublished 'decision of a federal district"court in Massachusetts. Counsel's
·ciaim is not supported by the record, as counsel has not provided a copy of the court's decision. The. : ' ,
,to each beneficiary are realistic , and therefore that it has the ability to pay the proffered wages to each of the
beneficiaries of its pending petitions, as of the priority date of each petition and 'continuing until the
beneficiary of each petition obtain s lawful permanent residence. . See Matter of Great Wall, 161&N Dec. 142,
· 144-145 (Act ing Reg. Comm. 1977) (petitioner must establish ability to pay as of the date of the Form
MA 7"-50B job offer, the predecessor to the Form ETA 750). See also 8 C.F.R. §204.5(g)(2). .The other petition
, submitted by the petitioner in December 2003 was denied in July 2004 .- The petitioner appealed the decision in
· November 2004 and the appeal 'is currently pending. The record in the instant case contains no information
'about the proffered wage for the beneficiary of that petition, about the current .immigration status of the
, beneficiary , whether the beneficiary has withdrawn from the visa petition process , or whether the petitioner
has withdrawn its job offer to the beneficiary. Sinc 'e the record in the instant petition fails to establish the
· petitioner's ability to pay the proffered wage to the single beneficiary of the" instant petition; it is not necessary to
consider further whether the evidence also establishes the petitioner's ability to pay the .proffered wage to the
,beneficiary of the other petit ion filed by the pet itioner, or to other beneficiaries for whom the petitioner might
wish to submit 1-140petitions based onthe same approved ETA 750 labor certification.·
6 In a similar case, the courtin Sitar v. Ashcroft, 2003 WL 22203713 (D .Mass. Sept. 18, 2003); stated
"nothing in the govern ing regulation, 8 C.F.R. § 204.5, permits [CIS] to consider the financial resources of
individuals or entities who have no legal obligation topay the wage."
Page 6
assertions of counsel do not constitute evidence. Matter of Obaigbena, J 9 I~N Dec.' 533, 534 (BIA 1988);
Matter ofRamirez-Sanchez, l7I&N Dec. 503, 506 (BIA 1980).
Furthermore, in contrast to the broad precedential authority of the case law of a United States circuit court, the
AAO is not bound to follow the published decision of a United States district court in cases arising within the
same district See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's
decision will be given due consideration when it is properly before the AAO; however, the analysis does not
have to be followed as a matter of law. Id. at 719. In addition, as thepublished decisions of the district courts
, are not binding on the AAO outside of that particular proceeding, the unpublished decision of a district court
would necessarily have even less persuasive value.
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as
s~bmitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the' day
the Form ETA 7"50 was accepted for processing by the DOL.' '
The evidence submitted does hot establish that the petitioner had the continuing ability 'to pay the-proffered
wage beginning on the priority date.
, .'
Beyond the decision ofthe director, the petitioner has failed to demonstrate that the beneficiary is qualified to
perform the duties of the proffered position.' In the jnstant case, the Application for Alien Employment
Certification, Form ETA 750A, items 14 and 15, set forth the minimum education, training, and experience that
an applicant must have for the position of bookkeeper. In the instant case,item 14 describes the requirements of
the proffered position as follows: ' .
14. Education'
Grade School
High School
College
College Degree Required
Major Field of Study
8
3
2
blank
mathematics
The applicant must also have two years of experience in the job offered, the duties of which are delineated at Item
,13 of the Form ETA 750A and since this is a public,record, will not be recited in this decision. Item 15 of Form
ETA 750A requires that the applicant be computer literate and have knowledge of Microsoft Office software.
The beneficiary set forth her credentials on Fow'ETA 750B and signed her name tinder a declaration that the
contents of the form are true and correct under the penalty of perjury. On Part 15, eliciting information of the
beneficiary's work experience, she represented that she worked for the petitioner as a bookkeeper from December
1994 to the date she signed Form ETA 750B, that she worked as a teacher at Solotvyn Village High School in the
Ukraine from September 1979 to June 1990 and that she worked as an accountant/bookkeeper for Solotvyno
7 An application or petition that fails to comply with the technical requirements of the-law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajj'd. 345 FJd 683
(9th Cir. 2(03); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Or. 1989)(noting that the AAO reviews
appeals on a de novo basis).
Page 7
Cooperative Trade Association in the Ukraine from July 1990 to September 1993. She does not provide any
additional information concerning her employment background on that form.
The record of proceeding also contains a Form G-325, Biographic Information sheet submitted in connection with
the beneficiary's application to adjust status to lawful permanent resident status. On that form, she represented
that she has been self-employed as a bookkeeper from October 1998 to the date she signed the Form G-325 on
October 15,2003, above a warning for knowingly and willfully falsifying or concealing a material fact.
With the petition, the petitioner submitted a certificate dated January 30, 1993 from the Solotvyno Cooperative
Trade Association in the Ukraine stating that the beneficiary was employed as an accountantlbookkeeper from
July 1, 1990 through September 30, 1993.
r
The regulation at 8 C.F.R. § 204.5(1)(3) provides:
(ii) Other documentation-
(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.
(B) Skilled workers. If the petition is for a skilled worker, the petition must be
accompanied by evidence that the alien meets the educational, training or experience,
and any other requirements of the individual labor certification, meets the requirements
for Schedule A designation, or meets the requirements for the Labor Market Information
Pilot Program occupation designation. The minimum requirements for this
classification are at least two years of training or experience.
The certificate submitted by the petitioner from the Solotvyno Cooperative Trade Association does not describe
the beneficiary's job duties as specifically required by the regulation or state her hours of work to determine if she
worked full-time or not. Thus, the petitioner failed to provide sufficient documentation of the beneficiary's
prior work experience as required by 8 C.F.R. § 204.5(1)(3). Further, the evidence submitted by the petitioner
does not establish that the beneficiary is computer literate and has' knowledge of Microsoft Office software as
required by the ETA 750 in this case. Therefore, the evidence submitted does not establish that the beneficiary
is qualified to perform the duties of the proffered position.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. 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.