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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
06 
FILE: LIN 05 087 51916 Office: NEBRASKA SERVICE CENTER Date: sp 
 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
5 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. fj 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. 
~obert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 05 087 51916 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a tire retread business.' It seeks to employ the beneficiary permanently in the United States 
as a tire recapper. As required by statute, the petition is accompanied by a Form ETA 750, Application for 
Alien Employment Certification, approved by the U. S. 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 priority date of the visa petition. The director denied the petition accordingly. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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 unavailable. 
The regulation at 8 C.F.R. 9 204.5(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 regulation at 8 CFR 9 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled workers, professionals, or 
other workers must be supported by letters from trainers or employers gving the name, address, 
and title of the trainer or employer, and a description of the training received or the experience of 
the alien. 
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. 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. Cornm. 1977). 
Here, the Form ETA 750 was accepted on January 3, 2002.~ The proffered wage as stated on the Form ETA 
750 is $12.50 per hour ($26,000.00 per year). The Form ETA 750 states that the position requires three 
months of experience. 
1 
 According to the 2004 tax return submitted, the petitioner has moved to the Cottage Grove, Oregon 
location noted on the front sheet that is its current address. 
2 
 It has been approximately four years since the Alien Employment Application has been accepted and the 
proffered wage established. According to the employer certification that is part of the application, ETA Form 
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the 
LIN 05 087 51916 
Page 3 
On appeal, counsel submits a legal brief and additional evidence. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; a support letter 
from the petitioner; an index of exhibits; a U.S. Internal Revenue Service Form tax return; and, copies of 
documentation concerning the beneficiary's qualifications as well as other documentation. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. 204.5(g)(2), the director requested on June 3, 2005, pertinent evidence of the petitioner's ability to pay 
the proffered wage beginning on the priority date. 
The director requested evidence in the form of copies of annual reports, U.S. federal tax returns with signatures 
and dates, and audited financial statements for 2002 and 2004. 
In response to the request for evidence, counsel submitted copies of the following documents: the beneficiary's 
the petitioner's U.S. Internal Revenue Service (IRS) Form 1120 tax returns for years 2002,2003 and 2004 as well 
as a financial statement. 
The director denied the petition on September 2 1, 2005, finding that the evidence submitted did not establish 
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts that because a company's liabilities are greater than its assets is not evidence of an 
inability to pay the proffered wage. 
Further, counsel contends that the company's gross income exceeds the proffered wage, and, the beneficiary 
has received a salary, both that are evidence, counsel contends, of the ability to pay the proffered wage. 
Counsel asserts that the petitioner's net income is "not indicative of ...[ its] ability to pay employee salaries, 
but a result of the petitioner's "tax decision." 
Counsel has submitted the following documents to accompany the appeal statement: a legal brief; an 
internally generated payroll summary for the beneficiary; and, two cases involving the ability to pay. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and 
Immigration Services (CIS) will first examine whether the petitioner employed and paid the beneficiary 
during that pelod. 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. Evidence was submitted on appeal to show that the petitioner 
employed the beneficiary. An internally generated payroll summary for the beneficiary was submitted stating 
wage pay payments from the petitioner to the beneficiary fiom January 1, 2002, and October 18, 2005. 
Counsel contends that the beneficiary has received a salary that is evidence of the ability to pay the proffered 
wage. No objective, independent evidence was submitted evidencing the wage payments. No W-2 Wage and 
Tax statements, 1099-MISC compensation paid form statements, personal U.S. tax returns for the beneficiary, 
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins 
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work." 
LIN 05 087 51916 
Page 4 
weekly or monthly bank deposits by the beneficiary, the petitioner's bank checking statements, pay stubs, pay 
statements as paid, or cancelled pay checks were submitted into evidence evidencing wage statements. The 
AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Under the circumstances, the AAO need 
not, and does not, consider the sufficiency of the evidence submitted on appeal. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will examine the net 
income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or 
other expenses. Counsel asserts that the petitioner's net income is "not indicative of ...[ its] ability to pay 
employee salaries, but a result of the petitioner's "tax decision." 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), affd, 703 F.2d 571 (7th Cir. 1983). 
Counsel contends that the company's gross income exceeds the proffered wage and that is evidence of the 
ability to pay the proffered wage. In K.C.P. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that 
CIS should have considered income before expenses were paid rather than net income. Finally, no precedent 
exists that would allow the petitioner to "add back to net cash the depreciation expense charged for the year." 
Chi-Feng Chang v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054. 
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $26,000.00 from the priority date of January 3,2002: 
In 2002, the Form 1120 stated a taxable income3 loss of <$12,512.00>~. 
In 2003, the Form 1 120 stated taxable income of $1 1,093.00. 
In 2004, the Form 1 120 stated a taxable income loss of <$29,667.00>. 
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 liabilities.' A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120 federal tax return. The petitioner's year-end 
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage. 
3 
 IRS Form 1 120, Line 28. 
4 
 The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
5 
 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
LIN 05 087 51916 
Page 5 
Examining the Form 1120 U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each of 
those returns indicates the following: 
In 2002, petitioner's Form 1120 return stated current assets of $121,239.00 and $1 19,577.00 
in current liabilities. Therefore, the petitioner had $1,662.00 in net current assets. Since the 
proffered wage is $26,000.00, this sum is less than the proffered wage. 
In 2003, petitioner's Form 1120 return stated current assets of $153,321 .OO and $1 77,144.00 
in current liabilities. Therefore, the petitioner had <$23,823.00>~ in net current assets. Since 
the proffered wage is $26,000.00, this sum is less than the proffered wage. 
In 2004, petitioner's Form 1120 return stated current assets of $168,013.00 and $218,515.00 
in current liabilities. Therefore, the petitioner had <$50,502.00> in net current assets. Since 
the proffered wage is $26,000.00, this sum is less than the proffered wage. 
Therefore, for the period 2002 through 2004 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 ability to pay the beneficiary 
the proffered wage at the time of filing through an examination of its net current assets. 
Counsel asserts in her brief accompanying the appeal that two unpublished cases of the AAO may be relied 
upon to support counsel's contentions on appeal stated above. The two cases are not published case precedent 
(as is stated on one of the case cover sheets). Counsel cites no legal precedent for her contentions. The 
assertions 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). While 8 C.F.R. 5 103.3(c) provides that 
precedent decisions of CIS are binding on all its employees in the administration of the Act, unpublished 
decisions are not similarly binding. Precedent decisions must be designated and published in bound volumes or 
as interim decisions. 8 C.F.R. 4 103.9(a). The AAO reviews appeals on a de novo basis. See Dor v. INS, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989). Each of counsel's contentions has been discussed. Each case must be 
reviewed upon its own merits, and by definition, each case has its own particular fact situation that may 
result, and often does, in differing legal analysis and applicable of regulation. 
Counsel submitted unaudited financial statements as evidence of the petitioner's ability to pay the proffered wage 
despite the director's request for audited financial statements. Counsel cites no legal precedent for the 
admissibility of the unaudited financial statement, and, according to regulation,' copies of annual reports, 
federal tax returns, or audited financial statements the means by which petitioner's ability to pay is 
determined. 
Financial statements may be compiled, reviewed or audited. A compilation is limited to presenting in the form 
of financial statements information that is the representation of management. An audit is conducted in 
accordance with generally accepted auditing standards to obtain reasonable assurance whether the financial 
statements of the business are free of material misstatement. A review is a financial statement between an 
audit and a compilation. Reviews are governed by the AICPA's (American Institute of Certified Public 
Accountants) Statement on Standards for Accounting and Review Services (SSARS) No. 1. Accountants only 
express limited assurances in reviews. A compilation is the management's representation of its financial 
position. Evidence of the ability to pay shall be, inter alia, in the form of copies of audited financial 
6 
 The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
' 8 C.F.R. 5 204.5(g)(2). 
LIN 05 087 51916 
Page 6 
statements with a declaration of the maker indicating their manner of preparation and certifying the financial 
statements to be audited. Non-audited financials have limited evidentiary weight in Service deliberations in 
these matters. The statements presented were not audited. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the three corporate tax 
returns as submitted by petitioner that shows that the petitioner has not demonstrated its ability to pay the 
proffered wage from the day the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. 
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.