dismissed EB-3 Case: Retail Management

PUBLIC COPY 
identifying data deleted to 
prevemt deariy unwarranted 
invasion of penona1 privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 247 5 1991 Office: VERMONT SERVICE CENTER 
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. 5 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 
EAC 04 247 51991 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is presently before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition will be denied. 
The petitioner is a supermarket. It seeks to employ the beneficiary permanently in the United States as an 
assistant store manager. 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 2001 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 March 4, 2005 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. 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 nature, for which qualified workers are not available in the United 
States. 
The regulation 8 C.F.R. tj 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 
tj 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 30,2001. The proffered wage as stated on the Form ETA 750 
is $500 a week, or $26,000 per year. The Form ETA 750 states that the position requires two years of 
experience in the proffered position. 
EAC 04 247 51991 
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 
1 
pertinent evidence in the record, including new evidence properly submitted upon appeal . On appeal, 
counsel submits a copy of the first two pages 
 etums for tax years 2001,2002 and 2003. 
's Tax Services, Bronx, New York. In his 
letter to cou 
 states that he prepared amended tax returns for the petitioner for tax years 
states that after interviewing the beneficiary, he discovered that all pa 
the amount reported as "purchases" on the petitioner's tax returns. 
tates that the beneficiary was not a salaried employee, did not receive a W-2 form, and therefore 
his wages were not reported as "salaries and wages" on the corporate return. states that 
~avments made to the beneficiarv were intended to be treated as "cost of goods sold". but should have been 
1, d 
listed separately as "cost of Labor" and not lumped into "purchases." 
 states that he has made 
the corrections2 to the petitioner's tax return, and also instructed the ben I' the amended ret~rns.~ 
The record also contains the petitioner's previously submitted tax returns, IRS Forms 1120S, for tax years 
2001 to 2003, as well as the beneficiary's individual income tax return for tax years 2002 and 2003. The 
Schedules C-EZ submitted with the beneficiary's returns indicate that he worked as the petitioner's assistant 
manager. The record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the 
petition, the petitioner did not indicate when it was established, or the number of employees. It did indicate a 
gross annual income of $120,964. 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 May 6, 1997, the beneficiary 
claimed to have worked for the petitioner as of February 2001. 
counsel asserts that the amended income tax retums and the accompanying explanation from 
further support the petitioner's ability to pay the proffered wage. Counsel states that the benefic 
has paid his own taxes for wages received throughout his employment. Counsel also asserts that the petitioner 
had sufficient income and assets to pay the proffered wage if depreciation and corporate assets, which counsel 
identifies as "Lines E and G, 14," are considered. Counsel appears to conclude that the actual payment of the 
salary deducted from the gross receipts, prior to the deductions of other expenses, establishes the petitioner's 
ability to pay the proffered wage. 
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 lawfbl permanent residence. The 
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. 4 103.2(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). 
2 
 The second pages of the amended tax returns submitted on appeal indicate the original figures listed on line 
2, of Schedule A as "purchases" in the previously submitted returns now have been split between line 2 and 
line 3, "cost of labor". 
3 
 The record 
 from the petitioner's tax return indicate that they were 
received by the IRS, 
 New York, New York on March 17,2005. 
EAC 04 247 51991 
Page 4 
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. $ 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. 612 (Reg. Cornm. 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 considered prima facie proof of the petitioner's ability to pay the proffered wage. On 
appeal, counsel asserts that the petitioner's amended tax retwns indicate that the beneficiary's wages of 
$26,000 were erroneously included in the item "purchases" and that the amended returns correctly show the 
proffered wage salary under "cost of labor". Counsel makes this assertion in part based on the comments of 
Mr. Wapnick who in turns reports on a conversation that he had with the beneficiary. However, neither the 
assertions of counsel nor of Mr. Wapnick constitute evidence. The asserhons of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503,506 (BIA 1980).~ 
The petitioner has provided no evidentiary documentation, such as checks, a Form 1099-MISC for non- 
employee compensation, or similar documentation to establish any wages paid to the beneficiary. It is also 
noted that the beneficiary's individual income tax returns do not reflect wages in the sum of $26,000. The 
beneficiary's Schedule C-EZ in his tax return for 2002 indicates profits of $24,320, and profits of $24,521 in 
tax year 2003. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: "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." 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 2001 or subsequently. Thus the petitioner has to establish its ability to pay the entire 
proffered wage as of the 2001 priority date and to the date the beneficiary receives his legal residency. 
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, and contrary to counsel's assertion, 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, 71 9 F. Supp. 532 (N.D. Texas 1989); K. C.P. Food Co., Inc. v. Sava, 
Further, despite counsel's explanation of the rationale for amending the petitioner's corporate tax returns, 
because the petitioner amended its return in the middle of the proceedings, CIS would require IRS-certified 
copies to corroborate the assertion that the amended returns were actually processed by the IRS. The amended 
returns submitted by the petitioner simply indicate that they were received by the IRS-the returns are not 
certified copies. A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). 
EAC 04 247 5 199 1 
Page 5 
623 F. 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). 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 5 37. 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $26,000 per year from the priority date: 
In 200 1, the Form 1 120s stated net income5 of -$925. 
In 2002, the Form 1 120s stated net income of -$6,703. 
In 2003, the Form 1120s stated net income of $4,875. 
Therefore, for the years 2001 to 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 solely the petitioner's corporate 
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 the petitioner's current assets and current liabilities6 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
5 
 Ordinary income (loss) from trade or business activities as reported on Line 21. 
EAC 04 247 5 199 1 
Page 6 
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 $8,284. 
The petitioner's net current assets during 2002 were $9,702. 
The petitioner's net current assets during 2003 were $16,628. 
Therefore, for the years 2001 to 2003, the petitioner did not have sufficient net current assets to pay the entire 
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. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns 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. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
6 
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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
7 
 It is noted that even if the AAO accepted that, based on the beneficiary's tax returns, the petitioner paid 
wages to the beneficiary in tax years 2002 and 2003, the petitioner paid no wages in tax year 2001. Thus, the 
petitioner still could not establish its ability to pay the proffered wage as of the 200 1 priority date.