dismissed EB-3 Case: Welding

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., p. 3000 
Washington, DC 20529 
\ 
FILE: Office: VERMONT SERVICE CE~~TER Date: 2 1 2006 
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. 
 1153(b)(3) . 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All' documents have been re6med to 
the office that originally decided your case. Any further inquiry must be made to that office": 
mwi;.. 
Robert P. Wiemann, hief 
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 an iron workshop. It seeks to employ the beneficiary permanently in the United States as a 
combination welder. 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. 
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 September 8, 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. 8 11530>)(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. 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. 
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.. 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 ~m~lo~ment 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. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on April 23, 2001. The proffered wage as stated on the Form ETA 
750 is $1 8.00 per hour ($32,760 per year'). The Form ETA 750 states that the position requires two years of 
experience in the job offered. 
 , 
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Based on worlung 35 hours per week as set forth on the Form ETA 750. 
Page 3 
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 redord, including new evidence properly submitted upon appeal2. Relevant evidence 
in the record includes the petitioner's corporate federal tax returns for 2001 through 2003 and a letter fi-om the 
petitioner's accountant. 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. On the 
petition, the petitioner claimed to have a gross annual income of $125,042 and a net annual income of 
$10,416. However, the petitioner did not provide information about the date established and current number 
of employees on the form. 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 March 24,2001, the beneficiary did not 
claim to have worked for the petitioner. 
On appeal, counsel asserts that the petitioner's total income, salaries and wages paid, and retained earnings 
establish its ability to pay the proffered wage. 
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. 8 204.5(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. 612 (Reg. Comm. 1967). 
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 has not established that it employed and paid the beneficiary the full proffered 
wage from the priority date in 2001 onwards. 
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 counsel's 
assertions. Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the 
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 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, 7 19 F. Supp. 532 (N.D. Texas 1989); K. C. P. Food Co., Inc. v. Sava, 
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). 
Page 4 
623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), ard, 703 F.2d 571 
(7th Cir. 1983). Counsel's 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. 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 tax returns demonstrate the following financial information concerning the petitioner's ability ,to pay the 
proffered wage of $32,760 per year. from the priority date: 
In2001,theForm1120statedanetincome30f$10,416. 
In 2002, the Form 1120 stated a net income of $17,156. 
In 2003, the Form 1120 stated a net income of $29,273. 
Therefore, for the years 2001 through 2003, 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 liabilitie~.~ A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
30rdinary income (loss) from trade or business activities as reported on Line 28 of the Form 1120. 
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Page 5 
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 $10,605. 
The petitioner's net current assets during 2002 were $(19,138). 
The petitioner's net current assets during 2003 were $(29,850). 
Therefore, for the years 2001 through 2003, the petitioner did not have sufficient net current assets to pay the 
proffered wage. 
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. 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
continuing ability to pay the proffered wage from the priority date. Counsel mentions the petitioner had over 
$20,000 retained earnings in 2003 and recommends the use of retained earnings to pay the proffered wage. 
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. Adding retained earnings to net income and/or net current assets is therefore duplicative. Therefore, 
CIS looks at each particular year's net income, rather than the cumulative total of the previous years' net 
incomes represented by the line item of retained earnings. 
Further, even if considered separately from net income and net curre,nt assets, retained earnings might not be 
included appropriately in the calculation of the petitioner's continuing ability to pay the proffered wage 
because retained earnings do not necessarily represent funds available for use. Retained earnings can be 
either appropriated or unappropriated. Appropriated retained earnings are set aside for specific uses, such as 
reinvestment or asset acquisition, and as such, are not available for shareholder dividends or other uses. 
Unappropriated retained earnings may represent cash or non-cash and current or non-current assets. The 
record does not demonstrate that the petitioner's retained earnings are unappropriated and are cash or current 
assets that would be available to pay the proffered wage. 
Counsel cites Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989). The MO is not bound 
to follow the published decision of a United States district court in cases arising within the same district. See 
Matter of K-4, 20 I&N Dec. 715 (BIA 1993). Although part of this decision mentions the ability of the 
beneficiary to generate income, the holding is based on other grounds and is primarily a criticism of CIS for 
failure to specify a formula used in determining the proffered wage. Further, in this instance, no detail or 
documentation has been provided to explain how the beneficiary's employment as a welder will significantly 
increase profits. This hypothesis cannot be concluded to outweigh the evidence presented in the corporate tax 
returns. 
4~ccording 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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
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I 
Against the projection of future earnings, Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. 
Cornrn. 1977) states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could 
not pay the offered wage at the time the petition was filed, should subsequently become eligble 
to have the petition approved under a new set of facts hinged upon probability and projections, 
even beyond the information presented on appeal. 
Counsel cites Matter of Oriental Pearl Restaurant, 92-INA-59 (Aug. 24, 1993) to support the argument that the 
petitioner has been in business for 4 years that it would be "reasonable to expect them to continue operating well 
into the future." However, counsel does not state how case law developed by the Board of Alien Labor 
Certification Appeals (BALCA) is applicable to the instant petition before the Department of Homeland 
Security's CIS' AAO. While 8 C.F.R. 8 103.3(c) provides that precedent decisions of CIS are binding on all its 
employees in the administration of the Act, BALCA decisions are not similarly binding. Precedent decisions 
must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 8 103.9(a). 
Counsel refers to two decisions issued by the MO concerning the beneficiary adding to the petitioner's ability to 
pay and the petitioner's ability to pay solely upon its assets and worhng capital. Counsel, however, does not 
provide its published citation. While 8 C.F.R. 8 103.3(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. tj 103.9(a). 
Counsel also cites 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 three years 2001 through 2003 were uncharacteristically unprofitable years for the 
petitioner in a framework of profitable or successful years. 
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 Department of Labor. 
Beyond the director's decision and assertions on appeal, the MO will discuss some other issues. An 
application or petition that fails to comply with the technical requirements of the law may be denied by the 
MO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the MO reviews 
appeals on a de novo basis). 
The MO notes that the instant petition was improperly signed by the beneficiary instead of the authorized 
representative of the petitioner. The Form G-28, Notice of Appearance as At me or Re resentative, for the 
instant petition and the Form ETA 750A were signed by a person named mas the owner of the 
ver, the petitioner's tax retums for 2001 through 2003 submitted show in Schedule E that 
as been the sol 
not contain any evidence verifyin 
Instead in a letter dated March 2 
1992 to 2000, he confirms that 
~atter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states 
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition." "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." 
Under 20 C.F.R. $8 626.20(~)(8) and 656.3, the petitioser has the burden when asked to show that a valid 
employment relationship exists, that a bonafide job opportunity is available to U.S. workers. See Matter of 
Amger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bonafide job offer may arise where. 
the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through 
friendship." See Matter of Summart 374,OO-INA-93 (BALCA May 15,2000). 
Where the petitioner is owned by the person applying for position, it is not a bonafide offer. See Bulk Farms, 
Inc. v. Martin, 963 F.2d 1286 (9th Cir. 1992) (denied labor certification application for president, sole 
shareholder and chief cheese maker even where no person qualified for position applied). 
Therefore, without independent objective evidence to resolve these inconsistencies and to establish the 
signer's status as an authorized representative of the petitioner, the petition cannot be accepted as properly 
filed. This issue should be addressed in any further proceedings. 
The certified Form ETA 750 in the instant case states that the position of combination welder requires two (2) 
years of expenence in the job offered. On the Form ETA 750B, 
forth his work experience as a "Welder" at 
from February 1992 to December 2000. 
The petitioner must 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. Matter 
of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornrn. 1977). 
The regulation at 8 C.F.R. $ 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) of trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
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Page 8 
The instant 1-140 petition was submitted with an experience letter from 
 Security pertinent to the 
beneficiary's qualification as required by' the above regulation. This letter was signed by 
without his title in the company. The letter states in pertinent part that: 
[The beneficiary] worked for our company from February 1, 1992 to December 2000 as a 
combination welder. During this time he worked 40 hours a week. He was paid a salary of 
$320.00. 
The author of the lette is a welder of the company, therefore, it appears that he is a co- 
worker of the beneficiary not an employer or trainer. The regulation at 8 C.F.R. 5 204.5(g)(l) requires a letter 
' relating to qualifying experience or training fi-om a current or former employer or trainer. 
 Only in the 
circu 
 idence is unavailable is other documentation considerable. Therefore, the experience letter 
from 
 cannot be considered as sufficient regulatory-prescribed evidence to establish that the 
beneficiary had worked as a welder for two years as required by 8 C.F.R. 5 204.5(g)(l). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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 burden has 
not been met. 
ORDER: The appeal is dismissed. 
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