dismissed EB-3 Case: Welding

PUBLIC Copy 
identify* data deleted t7r 
- 
invasion of personal privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. § 1 1 53(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 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 repair shop, and seeks to employ the beneficiary permanently in the United States as a 
welder/combination. 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 July 
28, 2005 denial, the case was denied based on the petitioner's failure to demonstrate that it can pay the 
beneficiary the proffered wage. 
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.' 
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 classifL the beneficiary as a skilled worker. The 
regulation at 8 C.F.R. 5 204.5(1)(2), and 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. See also 8 C.F.R. 5 204.5(1)(3)(ii)(b). 
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 5 204.5(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. 5 204.5(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. 
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. 5 103.2(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, 1 9 I&N Dec. 764 (BIA 1988). 
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 is $1 8.97 per hour, with an overtime rate of $28.46 per 
hour. The regular hourly wage would be equivalent to $39,457.60 per year, based on a schedule of 40 hours 
per week. The labor certification was approved on January 6, 2003, and the petitioner filed the 1-140 on the 
beneficiary's behalf on December 27, 2004. Counsel listed the following information on the 1-140 Petition 
related to the petitioning entity: date established: March 27, 1998; gross annual income: $353,849; net annual 
income: not listed; and current number of employees: 6. 
On March 11, 2005, the director issued a Request for Additional Evidence ("RFE") requesting additional 
documentation regarding the petitioner's ability to pay from April 30, 2001 to the present, including the 
petitioner's 2002, 2003, and 2004 federal tax returns, as well as of the beneficiary's Forms W-2. The 
petitioner responded to the RFE. Following review, the director denied the petition on July 28, 2005. 
Counsel appealed and the matter is now before the AAO. 
We will initially examine the petitioner's ability to pay based on the petitioner's prior history of wage 
payment to the beneficiary, if any. 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. On Form ETA 750B, signed by the beneficiary on 
April 27, 2001, the beneficiary listed that he was employed with the petitioner from February 1999 to the 
present (date of signature). The petitioner did not submit any W-2 statements, but did provide in response to 
the RFE that the petitioner had employed the b 
 8, 2005 ~nward.~ In support, the 
petitioner provided paystubs, which exhibit that 
 paid the beneficiary $9,384 year- 
to-date as of June 2, 2005. On appeal, the petitioner provided further 2005 paystubs showing that the - 
. had employed and paid the beneficiary $16,098, year-to-date as of August 18,2005. 
~rovided that "as of January 2003 my Company has changed its name 
. with the same owner." The letter further provided that 
was located at the same address as the petitioner, and performed the same type of 
work, but that it had a new and different tax identification number than the petitioner. The petitioner did not 
provide any incorporation documentation, certificate of name change, doing business as, or fictitious name, 
but provided only a notice fro 
 reasuj regarding the federal tax identification 
number for the petitioner and for 
 Each company has a different tax identification 
number, so that the corporate change appears to be more than solely a name change. Wages paid, and 
financial information related to one company, cannot be used to satisfy the petitioner's need to demonstrate 
that it can pay the proffered wage. It is an elementary rule that a corporation is a separate and distinct legal 
entity from its owners and shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite 
Investments, Ltd, 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. 
Comm. 1980). Consequently, 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. 
* The petitioner provided a letter, which stated that the beneficiary only began employment with the petitioner 
in February 2005, as prior to that date the beneficiary "did not have Employment Authorization and could not 
legally work." This statement conflicts with the beneficiary's listed ETA 750B representation that he has 
been employed with the petitioner since February 1999. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 
1988), "It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence 
pointing to where the truth, in fact, lies, will not suffice." 
Page 4 
Further, 
 has not demonstrated that it is the successor-in-interest to the initial 
qualifies as a successor-in-interest to the original petitioner requires 
documentary evidence that the new entity has assumed all of the rights, duties, and obligations of the 
predecessor company, and has the ability to pay from the date of the acquisition. See Matter of Dial Auto 
Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1986). 
 Moreover, the petitioner must establish that the 
predecesso; enterprise had the financial ability to pay the certified wage at the priority date. See Matter of 
Auto Repair Shop, Inc., 19 I&N Dec. 48 1 (Comm. 1986). The letter from the owner of - 
dh is insufficient to demonstrate that 
 is the successor-in-interest to the 
petitioner. 
Therefore, the wages paid to the beneficiary in 2005 would not be considered as evidence of the petitioner's 
ability to pay the proffered wage for that year. The petitioner would need to demonstrate that it could pay the 
full proffered wage for the years 200 1,2002,2003,2004, and 2005. 
Next, we will examine the net income figure reflected on the petitioner's federal income tax returns. 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. 1 049, 1 054 (S .D.N.Y. 1 986) 
(citing Tongatapu Woodcrafi 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., Znc. 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 petitioner is a C corporation. 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. Line 28 demonstrates the following concerning the petitioner's ability to pay the proffered wage: 
Tax year 
 Net income or (loss) 
200 1 $1 5,990~ 
' The petitioner provided its 2001 tax return, which listed the company in the petitioner's name of BBL 
Bodies, Inc. The petitioner did not provide its federal tax returns for any other year, despite the RFE request, 
or on appeal. The regulation at 8 C.F.R. 5 204.5(g)(2) requires that the petitioner demonstrate its continuing 
ability to pay. Based on date of filing the 1-140 Petition, the petitioner's 2002, and 2003 tax returns should 
have been available. Additionally, the petitioner's 2004 tax return should have been available at the time of 
the petitioner's response to the RFE. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See 
Matter of Brantigan, 1 1 I&N Dec. 493 (BIA 1966). The regulation at 8 C.F.R. 5 204.5(g)(2) states that the 
director may request additional evidence in appropriate cases. The purpose of the request for evidence is to 
elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the 
time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (1 2). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. 5 103.2(b)(14). 
Page 5 
Based on the above, the petitioner's net income would not allow for payment of the beneficiary's proffered 
wage in any of the above years, even if the wages paid to the beneficiary were added to the petitioner's net 
income. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities4 Current assets include cash on hand, inventories, and receivables expected to be 
converted to cash within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. 
Its current liabilities are shown on lines 16 through 18, or, if filed on Form 1 120-A, on Part 111. If a 
corporation's net current assets are equal to or greater than the proffered wage, the petitioner is expected to be 
able to pay the proffered wage out of those net current assets, and, thus, would evidence the petitioner's 
ability to pay. The net current assets, if available, would be converted to cash as the proffered wage becomes 
due. 
Tax year Net current assets 
200 1 -$90, 129 
The petitioner cannot establish its ability to pay the beneficiary the proffered wage based on its net current 
assets either. 
On atmeal. the onlv new evidence that counsel submitted on the ~etitioner's behalf were Daystubs issued to 
I-' 
the time period June 3, 2005 through ~u~usi 18, 2005 exhibiting payment by - 
and not the petitioner. The paystubs reflect that paid the 
beneficiary at a rate of $18.00 per hour, which counsel contends is 94.89% of the proffered wage. Counsel 
further contends that the 2005 paystubs would not reflect the beneficiary's annual wages, as the paystubs 
submitted only cover three months or part of the year, but shows that the petitioner is currently paying an 
amount close to the proffered wage. 
While it is not necessary for the petitioner to pay the proffered wage until the beneficiary adjusts his status to 
permanent residence, as noted above, wages previously paid to the beneficiary are considered in establishing 
whether the petitioner can demonstrate the ability to pay the proffered wage. The petitioner must demonstrate 
this ability from the time of the priority date, here, April 30, 2001, until the beneficiary obtains permanent 
residence. See 8 C.F.R. 5 204.5(g)(2). 
In the case at hand, the petitioner provided its tax return for 2001. Both the petitioner's net income and net 
current assets are deficient and cannot be used to demonstrate the petitioner's ability to pay the proffered wage. 
For the years 2002, 2003, and 2004, the petitioner has failed to provide its federal tax returns, despite the RFE 
request, or other regulatory prescribed evidence in the form of an audited financial statement or annual report. 
Counsel did not provide any explanation why the petitioner could not provide such information in response to the 
RFE. Similarly, counsel failed to provide any regulatory prescribed evidence for these years on appeal. The 
evidence provided for 2005, paystubs, exhibits payment to the beneficiary by an entity whose affiliation to the 
petitioner has not been properly established, and is insufficient to show that the petitioner can pay the full 
proffered wage of $39,457.60 per year. 
4 
According to BarronJs Dictionav 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 accounts payable, 
short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
Accordingly, based on the foregoing, the petitioner has failed to establish that it has the ability to pay the 
beneficiary the required wage from the priority date until the time of adjustment. 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. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.