dismissed EB-3 Case: Wholesaler

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
0 A: 
FILE: EAC-03-258-56638 Office: VERMONT SERVICE CENTER 
 Date: NAY 1 1) 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 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. fj 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 
your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-03-258-56638 
Page 2 
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 a market place. It seeks to employ the beneficiary permanently in the United States as a 
wholesaler. As required by statute, a Form ETA 750, Application for Alien Employment Certification 
approved by the Department of Labor, accompanied the petition. 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 and denied the petition accordingly. 
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 ths paragraph, of performing sllled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 204.5(g)(2) states: 
Ability ofprospective 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 either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. tj 204.5(d). The priority date in the instant 
petition is February 5, 2001. The proffered wage as stated on the Form ETA 750 is $54.90 per hour, which 
amounts to $1 14,192.00 annually. On the Form ETA 750B, signed by the beneficiary on January 30,200 1, 
the beneficiary claimed to have worked for the petitioner beginning in January 2000 and continuing through 
the date of the ETA 750B. The ETA 750 was certified by the Department of Labor on October 3 1,2002. 
The 1-140 petition was submitted on September 15, 2003. On the petition, the petitioner claimed to have been 
established in February 1997, to currently have two employees and to have a gross annual income of $2.6 
million. The item on the petition for net annual income was left blank. With the petition, the petitioner 
submitted supporting evidence. 
In a decision dated September 30, 2003, the director determined that the evidence did not establish that the 
petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawfil permanent residence, and denied the petition. 
On appeal, counsel submits a brief and no additional evidence. Counsel states on appeal that the petitioner's 
bank statements show balances which exceed the monthly proffered wage. Counsel also states that the director 
EAC-03-258-56638 
Page 3 
did not appear to have used generally accepted accounting practices in concluding that the petitioner's liabilities 
exceeded its assets. 
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 
evaluating whether a job offer is realistic, 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, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on January 30,2001, the beneficiary claimed to 
have worked for the petitioner beginning in January 2000 and continuing through the date of the ETA 750B. 
However, the record contains no evidence corroborating the beneficiary's claim to have worked for the petitioner, 
and no evidence indicating the amount of any compensation paid by the petitioner to the beneficiary. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 COT. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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), affd., 703 F.2d 571 (7" Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a corporation. The record contains copies of the petitioner's Form 
1120 U.S. Corporation Income Tax Return for 2001. That return covers the petitioner's tax year begnning 
February 1, 2001 and ending January 31, 2002. Since no request for additional evidence was issued by the 
director, the record before the director closed on September 15,2003 with the receipt by the director of the 1-140 
petition. As of that date, the petitioner's federal tax return for its 2002 tax year should have been available, which 
presumably covered the period February 1, 2002 until January 3 1, 2003. However, a copy of the petitioner's 
federal tax return for its 2002 tax year was not submitted prior to the director's decision, nor has a copy of that 
return been submitted on appeal. 
EAC-03-258-56638 
Page 4 
For a corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of the Form 1120 U.S. Corporation Income Tax Return. The 
petitioner's tax return for 2001 states an amount for taxable income on line 28 as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage (deficit) 
200 1 $14,354.00 $1 14,192.00* $(99,838.00) 
2002 not submitted $1 14,192.00* no information 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in either of 
the years at issue in the instant petition. 
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 a corporate taxpayer's current assets less its current 
liabilities. 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. 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. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L attached to the petitioner's tax return for 2001 yield the amounts for 
year-end net current assets as shown in the following table. 
Tax 
year 
Net 
current Wage increase needed Surplus or 
assets to pay the proffered wage (deficit) 
200 1 $(14,638.00) $1 14,192.00* $(128,830.00) 
2002 not submitted $1 14,192.00* no information 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in either of 
the years at issue in the instant petition. 
Tne record also contains copies of bank statements for an account of the petitioner. However, bank statements 
are not among the three types of evidence listed in 8 C.F.R. § 204.5(g)(2) as acceptable evidence to establish a 
petitioner's ability to pay a proffered wage. While that regulation allows additional material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. §204.5(g)(2) 
is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Moreover, bank statements 
show the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. 
EAC-03-258-56638 
Page 5 
Funds used to pay the proffered wage in one month would reduce the monthly ending balance in each succeeding 
month. 
On the petitioner's bank statements the ending balances are as follows: 
200 1 : Ending balances Ending balances 
January July $13,888.41 
February $818.35 August $17,843.99 
March $1,576.99 September $8,265.55 
April $4,043.5 1 October $3,732.62 
May $2,639.16 November $21,386.57 
June $15,724.00 December $2 1,184.26 
2002: 
January 9,380.94 
In the instant case, the ending balances do not show monthly increases by amounts which would be sufficient to 
pay the proffered wage. Finally, no evidence was submitted to demonstrate that the funds reported on the 
petitioner's bank statements show additional available funds that are not reflected on its tax returns, such as the 
cash specified on Schedule L that is considered in determining a corporate petitioner's net current assets. 
Counsel cites the figure of $10,351 .OO as the petitioner's average balance for February through December 2001. 
The petitioner's bank statements contain figures for "Average Gross Bal" and for "Average Coll Bal." For some 
months, those figures are higher than the ending balances, and for other months, those figures are lower than the 
ending balances. Nonetheless, the differences between the average balances and the ending balances are not so 
great as to change the above analysis. 
The record contains no other evidence relevant to the petitioner's financial situation. The evidence therefore fails 
to establish the petitioner's ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains lawful permanent residence. 
In her decision, the director correctly stated the petitioner's net income in 2001. The director stated that the 
petitioner's liabilities that year exceeded its assets by $28,288.00. It appears that the director may not have 
limited her analysis to current assets and current liabilities. The correct figure for the excess of current 
liabilities over current assets is $14,638.00. Nonetheless, the error did not affect the director's conclusion, 
since the both director's figure and the correct figure indicate negative net current assets. The director also 
found that the copies of bank statements in the record failed to establish the petitioner's ability to pay the 
proffered wage. The decision of the director to deny the petition was correct, based on the evidence in the 
record before the director. 
For the reasons discussed above, the assertions of counsel on appeal fail to overcome the decision of the 
director. 
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.