dismissed EB-3 Case: Travel Agency

PUBLIC COPY 
identifying data deleted to 
pvmt ddy unwarranted 
invasion of per"d privacy 
US. Department of IIonieland Security 
20 Mass. Ave., N. W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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. 8 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 
DISCUSSION: The preference visa petition was denied by the Acting Director (Director), Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a travel agent. It seeks to employ the beneficiary permanently in the United States as a travel 
agency manager (flight reservations 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 (DOL). 
The director determined that the petitioner had not established its continuing ability to pay the beneficiary the 
proffered wage beginning on the priority date of the visa petition. The director noted that the financial evidence 
submitted by the petitioner was not in the petitioner's name. 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 August 5, 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. 5 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. 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 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 C.F.R. 5 
204.5 (d) . The petitioner must a1 so demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Ceafication 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. 
Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 23, 2001. The proffered wage as stated on the Form ETA 
750 is $36,775 per year. The Form ETA 750 states that the position requires four years of experience in the 
job offered. 
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 
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1 
pertinent evidence in the record, including new evidence properly submitted upon appeal . Relevant evidence 
in the record includes the petitioner's corporate and trade names documents, the petitioner's federal tax 
returns for 2000 through 2003, bank statements of the petitioner's business checking account covering the 
period from January 2001 through April 2005, and Form 1099 for 2003 and 2004 issued by the petitioner to 
the beneficiary. 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 a C corporation. According 
to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the petition, the 
petitioner claimed to have been established in 1995, to have a gross annual income of $1 15,000, and to 
currently employ three workers. On the Form ETA 750B, signed by the beneficiary on October 28, 2003, the 
beneficiary claimed to have worked for the petitioner since December 2002. 
On appeal, counsel submits assumed name records from Harris County, Texas and a certification of 
ecretary of State to show that the petitioner was 
and has different trade names, includin 
n the instant ~etition. Counsel asserts that the petitioner's tax retu 
demonstrate that the petitioner had the continuing ability to pay the proffered wage of 
$36,775 per year as of the priority date of April 23,2001 to the present. 
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). 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. 61 2 (Reg. Cornm. 1967). 
The evidence submitted on appeal demonstrates that the petitioner has different trade names, including m 
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, the petitioner did not submit any evidence for the beneficiary's compensation for 2001 and 2002, 
but submitted the beneficiary's 1099 forms for 2003 and 2004. The submitted 1099 forms show that 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. 9 103.2(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). 
petitioner hired and paid the beneficiary $12,135 in 2003 and $16,250 in 2004, which is $24,640 and $20,525 
less than the proffered wage respectively. Therefore, the petitioner has not established that it employed and 
paid the beneficiary the full proffered wage from the priority date in 2001 onwards. The petitioner is 
obligated to demonstrate that it could pay the full proffered wage in 2001 and 2002, and that it could pay the 
difference of $24,640 in 2003 and $20,525 in 2004 between wages actually paid to the beneficiary and the 
proffered wage. 
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, without consideration of depreciation or other expenses contrary to the petitioner's 
assertions. 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). Reliance on the petitioner's total income and wage expense is misplaced. Showing that the 
petitioner's total income 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 letter from the petitioner's 
accountant asserts that the depreciation expense is not actual expenses, thus should be considered as part of 
ability to pay the proffered wage in the instant case. The petitioner's and its accountant's reliance on the 
petitioner's depreciation in determining its ability to pay the proffered wage is misplaced. The court in 
K.C.P. Food Co., Inc. v. Sava 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 537. 
The record contains copies of the petitioner's tax returns for 2000 through 2003. Since the priority date in the 
instant case is April 23, 2001, the petitioner's 2000 tax return is not necessarily dispositive. The record 
before the director closed on July 12, 2005 with the receipt by the director of the petitioner's submissions in 
response to the request for evidence (RFE). As of that date the petitioner's federal tax return for 2004 was not 
available yet because the petitioner filed Form 7004 Application for Automatic Extension of Time to File 
Corporation Income Tax Return. Therefore, the petitioner's tax returns for 2001 through 2003 are only available 
tax returns to be considered. The tax returns demonstrate the following financial information concerning the 
petitioner's ability to pay the proffered wage of $36,775 per year from the priority date: 
Page 5 ' 
In 200 1, the Form 1 120 stated a net income2 of $4,335. 
In 2002, the Form 1 120 stated a net income of $4,495. 
In 2003, the Form 1 120 stated a net income of $(8,669). 
Therefore, for the years 2001 and 2002, the petitioner did not have sufficient net income to pay the full 
proffered wage of $36,775; for the year 2003, the petitioner did not have sufficient net income to pay the 
difference of $24,640 between wages actually paid to the beneficiary and the proffered wage that year. 
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. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. 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 liabilities.) 
 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 petitioner's net current assets during 2001 were $27,230. 
The petitioner's net current assets during 2002 were $28,150. 
The petitioner's net current assets during 2003 were $19,48 1. 
Therefore, for the years 2001 and 2002, the petitioner did not have sufficient net current assets to pay the full 
proffered wage of $36,775; for the year 2003, the petitioner did not have sufficient net current assets to pay 
the difference of $24,640 between wages actually paid to the beneficiary and the proffered wage that year. 
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, its net income or its net current 
assets. 
The record of proceeding contains the bank statements of the petitioner's business checking accounts 
covering the period from January 2001 to April 2005. However, counsel's reliance on the balance in the 
petitioner's bank account is misplaced. First, bank statements are not among the three types of evidence, 
enumerated in 8 C.F.R. 5 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While 
ths regulation allows additional material "in appropriate cases," the petitioner in ths case has not demonstrated 
2 
Ordinary income (loss) from trade or business activities as reported on Line 28 of the Form 1120. 
3 
According to Barron S Dictionary of Accounting Tenns 1 17 (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. 
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. Second, bank statements show the amount in an account on a given date, and 
cannot show the sustainable ability to pay a proffered wage. Third, no evidence was submitted to demonstrate 
that the hnds reported on the petitioner's bank statements somehow reflect additional available hnds that were 
not reflected on its tax return, such as the petitioner's taxable income (income minus deductions) or the cash 
specified on Schedule L that was considered in determining the petitioner's net current assets. 
In response to the director's RFE counsel cited Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), which 
relates to petitions filed during uncharacteristically unprofitable or difficult years but only in a framework of 
profitable or successful years. The petitioning entity in Sonegawa had been in business for over 11 years and 
routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in 
that case, the petitioner changed business locations and paid rent on both the old and new locations for five 
months. There were large moving costs and also a period of time when the petitioner was unable to do 
regular business. The Regional Commissioner determined that the petitioner's prospects for a resumption of 
successful business operations were well established. The petitioner was a fashion designer whose work had 
been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society 
matrons. The petitioner's clients had been included in the lists of the best-dressed California women. The 
petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges 
and universities in California. The Regional Commissioner's determination in Sonegawa was based in part 
on the petitioner's sound business reputation and outstanding reputation as a couturiere. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that the years 2001, 2002 and 2003 were uncharacteristically unprofitable years but only in a 
framework of profitable or successful years for the petitioner. 
The petitioner'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. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that bwden has not been met. 
ORDER: The appeal is dismissed.