dismissed EB-3 Case: Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY - 
FILE: 
 -~ Office: VERMONT SERVICE CENTER 
EAC 04 224 50571 
PETITION: 
 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. 9 1 153(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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EAC 04 224 5057.1 
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 retail sale dollar store. It seeks to employ the beneficiary permanently in the United States 
as an area manager. As required by statute, a Form ETA 750, Application for Alien Employment Ceqification 
approved by the Department of Labor, accompanied the petition. 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 determined further that the proffered position is for 
self-employment and, therefore, no bona fide position exists for the beneficiary. The director denied the 
petition accordingly. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history of this case is documented in the record and is incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's January 4, 2005 decision denying the petition, two issues exist in this case. The 
first issue is whether the evidence establishes the petitioner's ability to pay the proffered wage as of the 
priority date and continuing until the beneficiary obtains lawful permanent residence. The second issue is 
whether the evidence establishes that the petitioner has a bona fide position for the beneficiary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 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 or seasonal nature, for which qualified workers are not available in 
the United States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to 
qualified immigrants who hold baccalaureate degrees and who are members of the professions. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(3)(A)(ii), 
provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees 
and who are members of the professions. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 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 not available in the United States. 
The regulation at 8 C.F.R. 9 204.5(g)(2) states: 
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 either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profitlloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
Page 3 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. 5 204.5(d). The priority date in the instant 
petition is April 27,2001. The proffered wage as stated on the Form ETA 750 is $42,000 annually. 
The AAO reviews appeals on a de novo basis. See Dorr v. I.N.S. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). The 
AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
In the instant appeal, counsel submits a brief and additional evidence. 
Relevant evidence submitted on appeal includes a letter from the petitioner's tax accountant. Other relevant 
evidence in the record includes the petitioner's 2001 federal income tax return, a 2001 balance sheet and 
income statement, and bank account information from 2001 to 2004. 
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. 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). 
On appeal, counsel states, in part, that the record contains bank statements to show sufficient funds to pay the 
proffered salary in all months except one, for which the underage is trivial. Counsel states further that the 
director failed to consider that the beneficiary is both the petitioner's investor and employee. Counsel cites a 
published decision as supporting evidence. 
The petitioner's tax accountant also states, in part: 
The proffered wage in this case was $40,000.00 per year or $3,333.33 per month. So even at the 
lowest ebb of the bank deposits, this company was only short by less than $100.00 and the bank 
balance was never less than $3,333.33 for more than two months in a row. So even if the 
company had cash shortage in any particular month it was still financially able to meet the 
salary requirement in [the] next month. So it was always in compliance with the Fair Labor 
Standards Act. 
It is noted here that the proffered wage as reflected on the ETA 750 is $42,000 per year or $3,500 per month, 
as opposed to $40,000 per year or $3,333.33 per month, as asserted by the petitioner's tax accountant. Also, 
the proffered wage as reflected on the 1-140 petition is $808.00 per week, which amounts to approximately 
$42,000 annually. 
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. 5 204.5(g)(2). For each year at issue, the petitioner's financial resources generally must be sufficient 
to pay the annual amount of the beneficiary's 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. 612 (Reg. Comm. 1967). 
Page 4 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on April 24, 2001, the beneficiary did not 
claim to have worked for the petitioner. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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. 111. 1982), afld., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is an S corporation. The record contains a copy of the petitioner's 
Form 1120s U.S. Income Tax Return for an S Corporation for 2001. The record before the director closed on 
January 4, 2005 with the receipt by the director of the petitioner's submissions in response to the RFE. As of 
that date the petitioner's federal tax return for 2004 was not yet due. It is noted that the petitioner did not 
submit federal tax returns or other regulatory-prescribed evidence for 2002 and 2003. Thus, CIS is able to 
analyze the petitioner's federal tax return information for 2001 only. 
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 21 of page one of the petitioner's Form 1120s. 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 from sources 
other than from a trade or business, that income is reported on Schedule K. An S corporation's total income 
from its various sources are reported on lines 1 through 6 of the Schedule K, Shareholders' Shares of Income, 
Credits, Deductions, etc. For example, an S corporation's rental real estate income is carried over from the 
Form 8825 to line 2 of Schedule K. Similarly, an S corporation's income from sales of business property is 
carried over from the Form 4979 to line 5 of Schedule K. See Internal Revenue Service, Instructions for Form 
1 120s (2003), available at http://www.irs.gov/pub/irs-prior/il120s--2003 .pdf; Instructions for Form 1 120s 
(2002), available at http://ww&.irs.gov/pub/irs-prior/i 1 120s--2002.pdf. 
Similarly, some deductions appear only on the Schedule K. The cost of business property elected to be treated 
as an expense deduction under Section 179 of the Internal Revenue Code, rather than as a depreciation 
deduction, is carried over fi-om line 12 of the Form 4562 to line 8 of the Schedule K. See Internal Revenue 
Service, Instructions for Form 4562 (2003), at 1, available at http://www.irs.gov/pub/irs-prior/i4562-- 
2003.pdf; Internal Revenue Service, Instructions for Form 1120s (2003), at 22, available at 
http://www.irs.gov/pub/irs-priorli 1 120s--2003 .pdf. 
Where the Schedule K has relevant entries for either additional income or additional deductions, net income is 
EAC 04 224 50571 
Page 5 
found on Line 23 of the Schedule K, for income. 
In the instant petition, the petitioner's tax return indicates income from activities other than from a trade or 
business or additional relevant deductions. Therefore the figures for ordinary income on line 21 of page one 
of the petitioner's Form 1120s tax return do not include portions of the petitioner's income or all of its 
relevant deductions. For this reason, the petitioner's net income must be considered as the total of its income 
from various sources as shown on the Schedule K, minus certain deductions which are itemized on the 
Schedule K. The results of these calculations are shown on Line 23 of the Schedule K, for income. 
In the instant case, the petitioner's tax return shows the following amount for income on line 23, Schedule K 
as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the prbffered wage deficit 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a corporate taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. If a corporation's net current assets are equal to or greater than 
the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L attached to the petitioner's tax return yield the amount for year-end net 
current assets as shown in the following table. 
Tax 
year 
Net 
current Wage increase needed Surplus or 
assets to pay the proffered wage deficit 
The record also contains copies of bank statements. However, bank statements are not among the three types 
of evidence listed in 8 C.F.R. 5 204.5(~)(2) as acceptable evidence to establish a petitioner's ability to pay a 
proffered wage. While that 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. Moreover, bank statements show the amount 
in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Funds used to 
pay the proffered wage in one month would reduce the monthly ending balance in each succeeding month. 
Finally, no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements 
show additional available funds that are not reflected on its tax returns, such as the cash specified on Schedule 
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EAC 04 224 50571 
Page 6 
L that is considered in determining a corporate petitioner's net current assets. 
The record contains no other evidence relevant to the petitioner's financial situation. 
Based on the foregoing analysis, the evidence in the record fails to establish the petitioner's ability to pay the 
proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. 
In his decision, the director correctly stated the petitioner's net income in 2001, and correctly calculated the 
petitioner's year-end net current assets for that year. The director found that those amounts and the 
petitioner's bank statements failed to establish the petitioner's ability to pay the proffered wage. The decision 
of the director to deny the petition was correct, based on the evidence in the record before the director. 
The second issue in this case is whether the evidence establishes that the petitioner has a bona fide position 
for the beneficiary. 
The director found that the evidence does not establish that the petitioner has a bona fide position for the 
beneficiary because the proffered position is for self-employment. The director found further that the 
petitioner's 2001 federal income tax return reflects that the beneficiary owns 50 per cent of the petitioner's 
shares, while another petition filed by the same petitioner for a different beneficiary reflects that the 
beneficiary in the instant petition is the petitioner's sole owner. 
On appeal, counsel states, in part, that the beneficiary is both the petitioner's investor and employee, and the 
petition, therefore, should be approved. Counsel cites a CIS memorandum and Matter of Aphrodite 
Investments Limited, 17 I&N Dec. 530 (Comm. 1980) as supporting evidence. 
A corporation is a separate and distinct legal entity from its owners or stockholders. See Matter of M, 8 I&N 
Dec. 24 (BIA 1958; AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); 
and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). 
Under 20 C.F.R. 626.20(~)(8) and 656.3, the petitioner has the burden when asked to show that a valid 
employment relationship exists, that a bonaJide job opportunity is available to U.S. workers. See Matter of 
Amger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bonaJide job offer may arise where 
the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through 
friendship." See Matter of Summart 3 74,OO-INA-93 (BALCA May 15,2000). 
The record as it is presently constituted does not contain copies of the petitioner's Articles of Incorporation or 
share certificates. As discussed by the director in his decision, the instant petition indicates that the 
beneficiary owns 50 per cent of the petitioner, while another petition filed by the petitioner indicates that the 
beneficiary is the petitioner's sole owner. As such, the petitioner's ownership is unclear. 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 view of these unresolved inconsistencies, the petitioner has not overcome the objections of the 
director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
. -~ 
EAC 04 224 50571 
Page 7 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.