dismissed EB-3 Case: Vocational Training

~dentiifing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
plJBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
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. 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. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a vocational training school. It seeks to employ the beneficiary permanently in the United 
States as a vocational training instructor. As required by statute, the petition is accompanied by a Form ETA 
750, Application for Alien Employment Certification, approved by the 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. 
On appeal, counsel submits a brief and additional evidence.' 
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 CFR 
3 204.5(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 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 April 24, 2001. The proffered wage as stated on the Form ETA 
750 is $30.00 per hour ($62,400 per year). The Form ETA 750 states that the position requires three (3) years 
experience in the job offered. 
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). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
Page 3 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the 
petition, the petitioner claimed to have been established in 1996, to have a gross annual income of $565,000, 
to have a net annual income of $128,300, and to currently employ 5 workers. According to the tax return in 
the record, the petitioner's fiscal year is based on a calendar year. On the Form ETA 750B, signed by the 
beneficiary on April 16, 2001, the beneficiary did not claim to have worked for the petitioner. 
With the petition filed on June 2, 2003, the petitioner did not submit any documents pertinent to its ability to 
pay the proffered wage. Therefore, on March 17, 2004 the director issued a request for additional evidence 
(RFE) pertinent to that ability. In accordance with 8 C.F.R. 5 204.5(g)(2), the director specifically requested 
that the petitioner provide copies of annual reports, federal tax returns, or audited financial statements to 
demonstrate its continuing ability to pay the proffered wage beginning on the priority date. The director 
specifically requested the 2001 United States federal income tax return with all schedules and attachments or 
annual reports for 2001 accompanied by audited or reviewed financial statements, information on the 
proffered position, W-2 forms for the beneficiary, Form W-3, Quarterly Wage Reports, and Form 1096 for the 
period in question to show employee wages paid. 
In response, the petitioner submitted the petitioner's tax return for 2001 and Form 1096 for 2001. 
The director denied the petition on August 11, 2004, finding that evidence submitted in response to the RFE 
did not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the 
priority date. 
On appeal, counsel argues that the petitioner's balance in its bank account should be considered in the instant 
case due to a general economic depression after September 11, 2001 and submits the petitioner's bank 
statements for March 2001 and April 2001. 
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 claimed that the proffered 
position is a new position and the petitioner did not employ and pay the beneficiary in 2001. Therefore, the 
petitioner has not established that it employed and paid the beneficiary the full proffered wage during the 
period from the priority date through present. 
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. 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 gross receipts and wage expense is misplaced. Showing that the petitioner's 
gross receipts 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. Suva, 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 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 return for 2001, the year of the priority date. The Form 
1120 tax return for 2001 stated net income2 of $(4,945). Therefore, for the year 2001, the petitioner did not 
have sufficient net income to pay the proffered wage. 
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 ~iabilities.~ 
 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 the year 2001 were $8,453. Therefore, the petitioner had insufficient net current assets to pay 
the proffered wage of $62,400 in 2001. 
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, or its net income or net current 
assets. 
2 
 Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
According to Barron's Dictionary of Accounting Terms 117 (31d 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 118. 
Page 5 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
ability to pay the proffered wage from the priority date. Counsel states that the petitioner's bank statements 
show that there was more than adequate monthly cash flow to pay the beneficiary's monthly salary at the time 
of filing. Counsel submits the petitioner's bank account statements for March 2001 and April 2001 as further 
evidence of the petitioner's ability to pay the proffered wage. 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 
this regulation allows additional material "in appropriate cases," the petitioner in this case has not demonstrated 
why the documentation specified at 8 C.F.R. 9 204.5(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 funds reported on the petitioner's bank statements somehow reflect additional available funds 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. 
Counsel refers to a decision issued by the AAO pertinent to considering bank account balances in determining the 
petitioner's ability to pay the proffered wage, but does not provide its published citation. 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. 5 103.9(a). 
Counsel contends that: "[tlhe loss of balance on Form 1120 is due to special situation after September 11, 
2001 and cannot represent petitioner's normal ability of paying proffered wages. Therefore, the alternative 
way to demonstrate the petitioner's ability should be considered." Matter of Sonegawa, 12 I&N Dec. 612 
(BIA 1967) 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 2001 was an uncharacteristically unprofitable year in a framework of profitable or successful 
years for the petitioner. Because the business happens to be located in the New York area and the labor 
certification application was filed in 2001 are not sufficient reasons to apply the Sonegawa rule to the instant 
case. The petitioner must establish that the year 2001 (of September 11) was an uncharacteristically 
unprofitable year in a framework of profitable or successful years for the petitioner. The petitioner did not 
provide any evidence showing its profitability and successfulness for the years before and after 2001. 
Counsel states that: "[oln the line 25, Schedule L of Form 1120, it shows the petitioner has retained earnings 
of $13,865 from the prior years, but sharply decreased to $8,920 in 2001. According to this record, it means 
that the normal business profit of the petitioner was in the good condition." However, the same Schedule L 
Page 6 
also shows the petitioner had net current assets of $(2,826) at the end of 2000 while its net current assets were 
$8,453 at the end of 2001. Furthermore, retained earnings are the total of a company's net earnings since its 
inception, minus any payments to its stockholders. That is, this year's retained earnings are last year's 
retained earnings plus this year's net income. Therefore, the figures cannot exactly reflect the profitability. 
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). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornrn. 1972)). 
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 any office within the employment system of the 
Department of Labor. 
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. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.