dismissed EB-3 Case: Roofing

PUBLIC COPY 
U.S. Department of Ifomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
b 6 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a roofing company and seeks to employ the beneficiary permanently in the United States as a 
roofer ("Roofing Labor"). As required by statute, the petition filed was submitted with Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor (DOL). As set forth 
in the director's April 13, 2005 denial, the case was denied based on the petitioner's'failure to demonstrate its 
ability to pay the proffered labor certification wage from the priority date until the beneficiary obtained 
permanent residence. 
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 MO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal.' 
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. 
The petitioner has filed to obtain permanent residence and classify the beneficiary as a slulled worker. 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 petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 CFR $ 204.5(d). Therefore, 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). 
The regulation 8 C.F.R. $ 204.5(~)(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. 
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)(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). 
- - Page 3 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 30, 
2001. The proffered wage as stated on Form ETA 750 for the position of a roofer is $14.80 per hour, 40 
hours per week, which is equivalent to $30,784.00 per year. The labor certification was approved on October 
17,2002, and the petitioner filed the 1-140 on the beneficiary's behalf on June 4,2004. On the 1-140, counsel 
listed the following information related the petitioning entity: established: 1992; gross annual income: 
$500,000.00; net annual income: $50,000.00; and current number of employees: 8; wages per week: $592.00. 
On November 1, 2004, the Service Center issued a Request for Additional Evidence ("WE") requesting 
additional documentation regarding (1) the beneficiary's'prior training and experience to show that he met the 
requirements of the ETA 750; and (2) the petitioner's ability to pay the beneficiary the proffered wage'fkom 
2001 to the present, specifically for the petitioner to send copies of its 2001 and 2002 federal tax returns, or 
alternatively annual reports, or audited financial statements. 
The petitioner responded. 
 On April 13, 2005, the director denied the case finding that the petitioner's 
response was insufficient to document that the petitioner's ability to demonsirate to pay the beneficiary the 
proffered wage from the priority date until the beneficiary obtained permanent residence. The petitioner 
appealed. 
We will initially examine the petitioner's ability to pay based on the record and then consider the petitioner's 
additional arguments raised on appeal. 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. 9 204.5(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. CIS will consider the totality 
of the circumstances affecting the petitioning business if the evidence warrants such consideration. See Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 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. In the 
instant case, on the Form ETA 750B si 
 beneficiary on April 16,2001, the beneficiary listed that he 
has been employed with the petitioner, 
 nd Associates, from January 1999 to January 200 1 .2,3 
The time period that the beneficiary worked for the petitioner is unclear from the record. On Form ETA 
750B, the beneficiary listed that he was employed from January 1999 to January 2001; on Form G-325, dated 
November 11, 2002, but filed June 4, 2004 with the beneficiary's 1-485 Adjustment of Status application, the 
beneficia 
 did not list that he was em lo ed b any employer in the last five years; in a letter dated January 
23, 2005-EO ofwand Associates, provided that the beneficiary was employed 
from May 2000 to March 2003; a payro e ger shows the final payment to the beneficiary was August 6, 
2004. The discrepancies or reasons for the different dates is unclear. 
Additionally, we note that the petitioner must have intended to employ the beneficiary at the time that the 
adjustment application was approved. The letter that the petitioner has provided indicates that the beneficiary 
had ceased employment with the petitioner prior to filing the 1-140 petition, and 1-485 application. And while 
the petitioner is not required to employ the beneficiary until the 1-485 application is approved, the petitioner 
The petitioner submitted W-2 Forms from 
 ' which show the following: 
Year Wage Payment 
2004 $4,437 
2003 $4,140 
Here, two points are relevant: (1) the amount paid in each year to the beneficiary is significantly less than the 
proffered wage of 
 ) the petitioner listed on t 
 0, as well as the petitioner listed 
and Associates," and not ' ' Counsel asserts that 
Inc. does business as 
 and Associates." The petitioner has not provided any documentation h to s ow 
license. tax identification form. or articles of incornoration. which 
might exhibit the corporate registration with th 
demonstrate that it does business a 
establish the petitioner's ability to paymed wage. 
- 
nd Associates additionally submitted a payroll ledger print out, which exhibit ayments to the 
meficiary in 2000 in' the amount of $19,812.~ Another payroll ledger print out for nd Associates 
shows a payment history from January 1,2001 through January 25,2005. The last payment to the beneficiary 
was on August 6, 2004 in the amount of $575. The ledger shows that the beneficiary was paid a total of 
$40,205 from January 2001 through August 2004. As this amount covers a four-year time period, with the 
beneficiary only paid a little over $4,000 in 2003 and 2004, the payments are insufficient to document that the 
petitioner can pay the beneficiary the annual the proffered wage of $30,784. 
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. 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
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 tax returns demonstrate the 'following financial information concerning the petitioner's ability to pay the 
. . 
proffered wage of $30,784.00 per year from the priority date. 
 e add the same caveat as above: the 
petitioner listed on the ETA 750 and the 1-140 Petition is 
 and Associates. The petitioner has 
submitted tax returns for While the tax returns that an- 
are 
 ., the petitioner has not forwarded information to 
demonstrate that the two companies operate on a ''d/b/aW basis, or that the two businesses have a successor-in- 
does not indicate in its letter that it seeks to later reemploy the beneficiary. The letter provides for training 
received, and that the beneficiary is no longer employed. 
4 
 We note that since the priority date is April 30, 2001, payments to the beneficiary in the year 2000 are not 
relevant to establish the petitioner's ability to pay the proffered wage. 
interest relationship. A corporation is a separate and distinct legal entity from its owners and shareholders, 
the 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. See Matter of Aphrodite Investments, Ltd., 17 
I&N Dec. 530 (Cornm. 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. 
Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. 5 204.5, permits [CIS] to consider the 
financial resources of individuals or entities who have no legal obligation to pay the wage." 
For a C corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of Form 1120 U.S. Corporation Income Tax Return, or the 
equivalent figure on line 24 of the Form 1120-A U.S. Corporation Short Form Tax Return. The petitioner's tax 
returns state amounts for taxable income on line 28 as shown below: 
Tax year 
 Net income or (loss) 
2003 not submitted5 
2002 $0 
200 1 -$1,396 
From the above net income, the petitioner cannot demonstrate its ability to pay the beneficiary the proffered 
wage, even if the wages paid to the beneficiary were added to the net income. 
Further, the petitioner cannot demonstrate its continuing ability to pay the required wage under a second test 
used based on an examination of net current assets. 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. 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 the proffered wage using those net 
current assets. The net current assets for Letusliftit, Inc. were as follows: 
Amount 
not submitted 
-$10,839 
-$15,107 
As demonstrated above, the petitioner did not have sufficient net current assets in any year to pay the. 
beneficiary the proffered wage, even if the wages paid to the beneficiary were added to the net current asset 
totals. 
To address counsel's additional arguments on appeal, counsel contends that the petitioner had an additional 
$7,801 in available income based on depreciation listed on the petitioner's 2001 tax return. Depreciation as a 
tax concept is a measure of the decline in the value of a business asset over time. See Internal Revenue Service, 
was granted an extension for filing its taxes in both 2001 and 2002 until September of each 
2003 tax returns might not have been available at the time of filing the I- 
140, but would have been available at the time of filing the appeal. 
6 
According to Bawon S Dictionary of Accounting Terms 117 (3'* 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. 
Page 6 
Instructions for Form 4562, Depreciation and Amortization (Including Information on Listed Property) (2004), at 
1-2, available at http://www.irs.~ov/pub/irs-pdfli4562.pdf. Therefore, depreciation is a real cost of doing 
business. 
The depreciation argument has previously been addressed by courts, and dismissed ths argument accordingly. 
The court in Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Texas 1 989) 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 Jigures 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 537 
Therefore, the AAO is not pkrsuaded that the petitioner's depreciation can show its ability to pay the 
proffered wage, which even if accepted, would not demonstrate the petitioner's ability to pay the proffered 
wage. 
Counsel then argues that the 2001 tax return reflects $676 in cash available at the end of the year. We have 
considered this amount in the calculation of the petitioner's net current assets, which' subtracted from the 
liabilities on the tax return submitted demonstrates a negative number, -$15,107. 
Counsel further contends that the petitioner received loans from shareholders in the amount of $24,349, which 
would be available to pay the proffered wage. CIS accords less weight to loans and debt as a means of 
paying salary since the loan increases the petitioner's liabilities and will not improve the company's overall 
financial position. Although lines of credit and debt are an integral part of any business operation, CIS must 
evaluate the.overal1 financial position of a petitioner to determine whether the employer is making a realistic 
job offer and has the overall financial ability to satisfy the proffered wage. See Matter of Great Wall, 16 I&N 
Dec. 142 (Acting Reg. Comm. 1977). 
Counsel then contends that by combining depreciation, cash, and loans, the petitioner would have funds 
available to pay the proffered wage. We have addressed each aspect above individually, and each, aspect 
individually is insufficient to pay the proffered wage. The combination of all of the factors listed above does 
not lead to a different conclusion regarding the petitioner's ability to pay the proffered wage. 
Counsel similarly argues that the combination of depreciation, cash, loans, and unappropriated earnings 
would allow for wage payment in 2002. We have addressed depreciation, cash, and loans above. Regarding 
unappropriated retained earnings, retained earnings are the total amount of a company's net earnings since its 
inception, minus any payments made to stockholders. Retained earnings are shown on a corporate tax return 
on Schedule L and, unlike the current assets shown elsewhere on Schedule L, retained earnings actually 
represent part of stockholders' equity and represent the portion of a company's non-cash and non-current 
assets that are financed from profitable operations rather than from selling stock to investors or borrowing 
from external sources. Assets of a company's shareholders or of other enterprises or corporations cannot be 
considered in determining the petitioning corporation's ability to pay the proffered wage. See Matter of 
Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comm. 1980). 
Counsel finally contends that CIS allows the prior payment of the beneficiary's wage as sufficient to 
demonstrate the petitioner's ability to pay. We have acknowledged this premise and considered payment to 
the beneficiary above. Nothing the petitioner has forwarded has demonstrated that it has the ability to pay the 
beneficiary the proffered wage from the priority date until the beneficiary obtains permanent residence. 
Further, and critically we 
 has not demonstrated its relationship t 
Counsel has only asserted tha 
 does business a-d Assoc~ates, but 
provided no evidence. The 
 of management are not reliable evidence. 
Based on the foregoing, we find that the petitioner has failed to document that it can pay the beneficiary the 
proffered wage from the priority date until the beneficiary obtains permanent residence. Accordingly, the 
petition was properly denied. 
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.