dismissed EB-3 Case: Retail Management

~defiiii~i~g data deleted to 
preveall dearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
4s 
Date: 
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. 5 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. 
~obert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a convenience store and gas station. It seeks to employ the beneficiary permanently in the 
United States as a shift manager. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification 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 and denied the petition accordingly. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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. 
The regulation at 8 C.F.R. 5 204.5(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 profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
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. 8 204.5(d). The priority date in the instant 
petition is April 30, 2001. The proffered wage as stated on the Form ETA 750 is $39,000.00 annually. On the 
Form ETA 750B, signed by the beneficiary on April 28, 2001, the beneficiary did not claim to have worked 
for the petitioner. The ETA 750 was certified by the Department of Labor on March 21,2003. 
The 1-140 petition was submitted on October 16, 2003. On the petition, the petitioner claimed to have been 
established on November 28, 2000, to currently have 3 employees, to have a gross annual income of 
$1,783,084.00, and to have a net annual income of $13,368.00. With the petition, the petitioner submitted 
supporting evidence. 
In a decision dated November 8, 2004, the director determined that the evidence did not establish that the 
petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence, and denied the petition. 
On appeal, counsel submits a brief and additional evidence. 
Counsel states on appeal that the petitioner can demonstrate the ability to pay the proffered wage in 2003 and it 
has shown the ability to pay the proffered wage in 2002 by substituting the wage it paid to the beneficiary's wife 
in 2002. Counsel submits a copy of the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation 
for 2003, copies of Form W-2 Wage and Tax Statement for the petitioner's employees in 2002, and a copy of the 
petitioner's Form W-3 Transmittal of Wage and Tax Statements for 2002. Counsel also submits a letter from the 
petitioner stating that the beneficiary's wife will no longer work for the petitioner once the beneficiary is 
permitted to work, and thus it will substitute the wages paid to the beneficiary's wife for those wages that will be 
paid to the beneficiary. 
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. 5 103.2(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). 
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. Cornm. 1977). See also 8 C.F.R. § 204.5(g)(2). In 
evaluating whether a job offer is realistic, 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 ofsonegawa, 12 I&N Dec. 
6 12 (Reg. Cornm. 1967). 
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 28,2001, 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 Chung 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. Ill. 1982), affd., 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 copies of the petitioner's Form 
1120s U.S. Income Tax Return for an S Corporation for 2001, 2002, and 2003. The record before the director 
closed on November 8, 2004 with the issuance of the director's decision. As of that date the petitioner's federal 
tax return for 2004 was not yet due. Therefore the petitioner's tax return for 2003 is the most recent return 
available. 
For an S corporation, CIS considers net income to be the figure shown on line 21, ordinary income, of the Form 
1120s U.S. Income Tax Return for an S Corporation. The petitioner's tax returns show the amounts for ordinary 
income on line 21 as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in those years. 
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's attached to the petitioner's tax returns yield the following amounts for 
net current assets: $47,833.00 for the end of 2001; $16,694.00 for the end of 2002; and $4,073.00 for the end 
of 2003. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield the amounts for net 
current assets as shown in the following table. 
Tax Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
Page 5 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in those years. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2002 and 
2003. 
Counsel states that the petitioner can demonstrate the ability to pay the proffered wage in 2003 because "[the] 
[pletitioner's tax return shows net income of $38,236.00 and net assets in the amount of $4,073.00. The net 
income plus the net assets equal $42,309.00, which is greater than the proffered wage'of $39,000.00." Evidence 
submitted on appeal to support this claim includes the petitioner's Form 1120s U.S. Income Tax Return for an S 
Corporation for 2003. 
Net current assets are the different between a corporation's current assets and current liabilities. Net current 
assets may properly be considered in determining a petitioner's ability to pay the proffered wage. Because the 
nature of net current assets, however, demonstrating the ability to pay the proffered wage with net current assets is 
truly an alternative to demonstrating the ability to pay the proffered wage with income and wages actually paid to 
the beneficiary. Net current assets are not cumulative with income, but must be considered separately. This is 
because income is viewed retrospectively and net current assets are viewed prospectively. For example, a 2001 
income greater than the amount of the proffered wage indicates that a petitioner could have paid the wages during 
2001 out if its income. Net current assets at the end of 2001 which are greater than the proffered wage indicate 
that the petitioner anticipates receiving roughly one-twelfth of that amount each month, and that it anticipates 
being able to pay the proffered wage out of those receipts. Therefore, the amount of the petitioner's net income is 
not added to the amount of the petitioner's net current assets in determining the petitioner's ability to pay the 
proffered wage. Moreover, combining net income and net current assets could doublecount certain figures, such 
as cash on hand and, in the case of a taxpayer who reports taxes pursuant to the accrual convention, accounts 
receivable. 
Counsel also states that the petitioner can demonstrate the ability to pay the proffered wage in 2002. In addition 
to adding the petitioner's net income and net current assets, the beneficiary will also be substituting for his wife, 
who work for the petitioner in 2002 and earned $1 1,996.10. According to counsel, "the Petitioner's net income 
and net assets combined total $30,062.00 -- $8,938.00 less than the proffered wage. However, substituting 
Beneficiary for his wife adds an additional $1 1,996.00 to the $30,062.00 available to pay Beneficiary for a total 
of $42,058.00, which is well above the proffered wage of $39,000.00." Evidence submitted on appeal to support 
this claim includes copies of Form W-2 Wage and State Statement for the petitioner's employees in 2002, a copy 
of the petitioner's Form W-3 Transmittal of Wage and Tax Statements for 2002, and a letter from the petitioner 
stating that the beneficiary's wife will no longer work for the petitioner once the beneficiary is permitted to work, 
and thus it will substitute the wages paid to the beneficiary's wife for those wages that will be paid to the 
beneficiary. 
Counsel asserts that the beneficiary will replace one of petitioner's workers: the beneficiary's wife. The record 
does not, however, verify that the beneficiary's wife was a full-time employee in 2002. In general, wages already 
paid to others are not available to prove the ability to pay the wage proffered to the beneficiary at the priority date 
of the petition and continuing to the present. Moreover, there is no evidence that the position of the beneficiary's 
wife involved the same duties as those set for in the Form ETA 750. The petitioner has not documented the 
position and duty of the beneficiary's wife. If she performed other kinds of work, then the beneficiary could not 
have replaced her. In addition, as mentioned earlier, the AAO does not agree that the amount of the petitioner's 
net income can be added to the amount of the petitioner's net current assets in determining the petitioner's ability 
Page 6 
to pay the proffered wage. Thus, even if CIS allows the petitioner to substitute the earnings of the beneficiary's 
wife in 2002 for the beneficiary, the total amount of $25,364.00 when added to net income or $28,690.00 when 
added to net current assets would still be insufficient. 
After a review of the federal tax returns, it is concluded that the petitioner has not established its ability to pay the 
salary offered as of the priority date of the petition and continuing until the beneficiary obtains lawful permanent 
residence. 
In her decision, the director incorrectly combined the petitioner's net income and net current assets for 2002. 
Nevertheless, the decision of the director to deny the petition was correct, based on the evidence in the record 
before 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. 
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.