dismissed EB-3 Case: Upholstery

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PUBLIC COPY 
U.S. Department of flomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 4~ 
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. 3 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 Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an upholsterer/tailor. It seeks to employ the beneficiary permanently in the United States as 
an upholsterer. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification, approved by the United States Department of Labor (DOL). 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. 
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 November 18, 2004 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 slulled 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 DOL. See 8 C.F.R. 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 DOL 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 October 21, 2002. The proffered wage as stated on the Form ETA 
750 is $17.36 per hour ($36,108.80 per year based on a 40 hour work week). The Form ETA 750 states that 
the position requires two 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 
pertinent evidence in the record, including new evidence properly submitted upon appeal.' 
 On appeal, 
counsel submits the petitioner's previously submitted IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation, for 2002. 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 claimed to have been established in 1997 and to currently employ two part-time 
workers. 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 August 15, 2002, the beneficiary did not claim to have 
worked for the petitioner. 
On appeal, counsel cites an unpublished AAO decision for the proposition that the petitioner is not obligated 
to demonstrate the ability to pay the entire proffered wage during the complete fiscal year, but only that 
portion which would have been due if it had hired the petitioner on the priority date. Counsel asserts that 
since the priority date is October 21,2002, the petitioner has to show its ability to pay only $7,406.80 in 2002. 
Counsel states that since the petitioner earned a profit of $23,833.00 in 2002, the petitioner had sufficient 
funds to pay the proffered wage in 2002. 
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. @ 204.5(g)(2). 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (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 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 2002 or subsequently. 
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.2 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). 
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). 
2 
 With the petition, counsel asserted that the petitioner's depreciation expense should be added to the 
petitioner's net profit in the calculation of the petitioner's ability to pay the proffered wage. 
Page 4 
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 before the director closed on September 7, 2004. As of that date, the petitioner's 2003 federal 
income tax return was due, but was not provided by the petitioner.3 The petitioner's tax return stated net 
income of $14,737.00 for 2002.~ Therefore, for the year 2002, the petitioner did not have sufficient net 
income to pay the proffered wage of $36,108.80.~ 
As an alternate means of determining the petitioner's ability to pay the proffered wage, CIS may review the 
petitioner's 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 petitioner's 
tax return stated end-of-year net current assets of $8,807.00 for 2002. Therefore, for the year 2002, the 
petitioner did not have sufficient net current assets to pay the proffered wage of $36,108.80. 
3 
 Therefore, the petitioner's net income and net current assets may not be analyzed against the proffered 
wage for 2003. 
4 
 Where an S corporation's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on line 21 of page one of the petitioner's Form 1120s. However, where an S 
corporation has income, credits, deductions or other adjustments from sources other than a trade or business, they 
are reported on Schedule K. If the Schedule K has relevant entries for additional income or additional credits, 
deductions or other adjustments, net income is found on line 23 of Schedule K. Because the petitioner had 
additional deductions shown on its Schedule K for 2002, the petitioner's net income is found on line 23 of 
Schedule K of its tax return. The director determined that the petitioner's net income was $23,833.00 in 2002. 
However, the discrepancy does not alter the ultimate outcome of thls appeal. 
5 
 With the petition, counsel urged that the petitioner's Schedule L Cash should be added to its net profits in 
calculating the funds available to the petitioner to pay the proffered wage. 
 That calculation would be 
inappropriate. Some portion of the petitioner's revenue during a given year is paid in expenses and the 
balance is the petitioner's net income. Of its net income, some is retained as cash. Adding the petitioner's 
Schedule L Cash to its net income would likely be duplicative, at least in part. The petitioner's Schedule L 
Cash is included in the calculation of the petitioner's net current assets, which are considered separately from 
its net income. 
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 liabilities7' 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 118. 
Page 5 
Therefore, from the date the Form ETA 750 was accepted for processing by the DOL, 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 asserts on appeal that there is another way to determine the petitioner's continuing ability to pay the 
proffered wage from the priority date. Counsel asserts that the petitioner is not obligated to demonstrate its 
ability to pay the entire proffered wage during the complete fiscal year, but only that portion which would 
have been due if it had hired the petitioner on the priority date.' Counsel requests that CIS prorate the 
proffered wage for the portion of the year that occurred after the priority date. We will not, however, consider 
12 months of income towards an ability to pay a lesser period of the proffered wage any more than we would 
consider 24 months of income towards paying the annual proffered wage. While CIS will prorate the 
proffered wage if the record contains evidence of net income or payment of the beneficiary's wages 
specifically covering the portion of the year that occurred after the priority date (and only that period), such as 
monthly income statements or pay stubs, the petitioner has not submitted such evidence. 
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 DOL. 
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. 
8 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
7 
Counsel refers to a decision issued by the AAO concerning proration of the proffered wage, but does not 
provide its published citation. While 8 C.F.R. 3 103.3(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. fj 103.9(a).