remanded EB-3 Case: Carpentry

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I~UB1LKC COf>Y
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration·
Services
FILE:
EAC-05-02l-50542
Office: VERMONT SERVICE CENTER Date:APR,~ 5ztJS1 .
INRE: Petitioner:
Beneficiary:
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. § ll53(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
www.uscis.gov
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 petition will be remanded' to the
director.
The petitioner is a landscaping/construction company. It seeks to employ the beneficiary permanently in the
United States as a carpenter. As required by statute, the petition is accompanied by a Form ETA 750,
Application for Alien Employment Certification, approved by the 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 August 3, 2005 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. § 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. § 204.5(g)(2) states in pertinent part:
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 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 isthe 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. §
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.
Comm. 1977).
Here, the Form ETA 750 was accepted on June 23, 2003. The proffered wage as stated on the Form ETA 750
is $21.53 per hour ($44,782.40per yeart The Form ETA 750 states that the position requires two years of
1 The director erred in stating $17.00 per hour, and further erred in calculating the annual salary as $35,360.00
in his decision dated August 3,2005.
Page 3
experience in the job offered. On the petition, the petitioner claimed to have been established in 1993, to have
gross annual income of $27,744.00, to have net annual income of $28,391.00, and to currently employ two
workers. On the Form ETA 750B signed by the beneficiary on June 18,2003, the beneficiary did not claim to
have worked for the petitioner.
The AAO takes a de novo look at issues raised in the denial of this petition. See Dar 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.rec 'n I ding new evidence properly submitted upon appeal2. Relevant evidence
in the record includes the Form 1040 U.S. Individual Income Tax Return for 2003 and 2004
statements of investment account from
statements of Ms. etirement plan account from Sc~vestments, letters and statements from
banks regarding Ms. _ accounts, a statement of Ms_ household expenses, and invoices of
vehicles purchased by the petitioner. The record does not contain any other evidence relevant to the
petitioner's ability to pay the wage.
On appeal, counsel asserts that with the balance in Ms.•savings account added to the adjusted gross
income reported in the petitioner's income tax returns, the petitioner has established its ability to pay the
proffered wage as of the priority date.
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, Citizenship and Immigration Services (CIS) requires the petitione~ 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 ofSonegawa, 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 did not submit any evidence showing that it employed and paid the beneficiary
from the priority date in 2003 onwards. Therefore, it failed to establish its ability to pay with wages already
paid to the beneficiary.
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)
2 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)(1). The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988).
Page 4
(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.CP. Food Co., Inc. v. Sava, 623 F. Supp. 1080
(S.D.N.V. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), a!f'd, 703 F.2d 571 (7th Cir. 1983).
The evidence indicates that the petitioner in the instant case is a sole proprietorship. Unlike a corporation, a
sole proprietorship is not legally separate from its owner. Therefore the sole proprietor's income, liquefiable
assets, and personal liabilities are also considered as part of the petitioner's ability to pay. Sole proprietors
report income and expenses from their businesses on their individual (Form 1040) federal tax return each
year. The business-related income and expenses are reported on Schedule C and are carried forward to the
first page of the tax return. Sole proprietors must show that they can cover their existing business expenses as
well as pay the proffered wage out of their adjusted gross income or other available funds. Counsel's·
argument that the depreciation should be added back to adjusted gross income is misplaced? In addition, they
must show that they can sustain themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D.
Ill. 1982), a!f'd, 703 F.2d 571 (7th Cir. 1983).
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioning entity
structured.as a sole proprietorship could support himself, his spouse and five dependents on a gross income of
slightly.more than $20,000 where the beneficiary's proposed salary was $6,000 (approximately thirty percent
of the petitioner's gross income). ..
Therefore, for a sole proprietorship, CIS considers net income to be the figure shown on line 334, Adjusted
Gross Income, of the owner's Form 1040 U.S. Individual Income Tax Return. Since adjusted gross income
has already excluded the business expenses including depreciation, the petitioner needs to demonstrate that
the adjusted gross income reflected on the sole proprietor's tax return covers the proffered wage and the sole
. proprietor's household living expenses. The record contains copies of the Form 1040 U.S. individual Income
Tax Return of the sole proprietor for 2003· and 2004. The tax returns for 2003 and 2004 demonstrated the
following financial information concerning the petitioner's ability to pay the proffered wage of $44,782.40:
In 2003, the Form 1040 stated adjusted gross income of $27,744.
In 2004, the Form 1040 stated adjusted gross income of $22,318.
In 2003 the sole proprietor's adjusted gross income on Form 1040 was insufficient to pay the beneficiary the
proffered wage which is $17,038.40 less than the proffered wage in that year without taking into account the
sole proprietor's household living expense~; in 2004 the adjusted gross income was also insufficient to pay
the beneficiary the proffered wage with a shortage of $22,464.40 that year without taking into account the
sole pro'prietor's household living expenses. Therefore, the petitioner did not have sufficient adjusted gross
income to pay the proffered wage in 2003 and 2004. The petitioner failed to establish that the sole proprietor
could cover the business expenses and the proffered wage for the beneficiary as well as his household living
expenses 'for 2003 and 2004 with the sole proprietor's adjusted gross income. In response to the director's
3 Counsel refers to a decision ,issued by the AAO concerning the depreciation to be added back to the taxable
income, but does not provide its published citation. While 8 C.F.R. § 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. § 103.9(a).
4 The line for adjusted gross income on Form 1040 is Line 33 for most years, however, it is Line 34 for 2003
and Line 36 for 2004.
",
request for evidence (RFE) counsel stated that the monthly expenses for the sole proprietor's household is
$1,810.00 (or $21,720:00 per year), including $1,000 of mortgage, $300 of food, $200 of utilities, $10 of
clothing and $300 of transportation. Counsel did not submit any supporting documents to the statement of
monthly expenses for the soie proprietor's household. However, the sole proprietor reported itemized
deductions on Schedule A. The schedule A's show that the sole proprietor paid medical expenses of $7,419
in 2003 and $5,828 in 2004 (average $6,623.50 per year), paid home mortgage interest of $5,792 in 2003 and
$6,111 in 2004 (average $5,951.50 per year), and contributed cash to charity of $409 in 2003 and $990 in
2004 (average $699.50 per year). The petitioner claimed that the sole proprietor paid $12,000 of mortgage
per year and the tax returns indicate that about 50% of the total amount paid as mortgage was mortgage
interest. The figures reflected on the tax return do not appear against the sole proprietor's statement about the
amount of mortgage payment. However, it appears more likely that $6,623.50 per year as medical expenses,
and $699.50 per year as charity contributions should be added to the sole proprietor's yearly expenses per the
tax returns since the statement of expenses does not include health insurance expenses, medical expenses or
charity contributions. Therefore, the AAO will consider $29,043 as the sole proprietor's yearly living
expenses in determining the petitioner's ability to pay. Thus, the petitioner is obligated to demonstrate that it
had additional income or liquefiable assets of $46,081.40 in 2003 and $51,507.40 in 2004 to pay the proffered
wage and to sustain the sole proprietor's family of five.
CIS will consider the sole proprietorship's income and his or her liquefiable assets and personal liabilities as
part of the petitioner's ability to pay. In the instant case, counsel submitted evidence showing the sole
proprietor has additional liquefiable assets to be considered in determining the petitioner's ability to pay, such
as balances in checking account, savings account, retirement plan account and investment account, certificate
of deposits, and invoices of vehicles the sole proprietor purchased. If the accounts are savings accounts,
money market accounts, certificates of deposits, or other similar accounts, such money should be considered
to be available for the sole proprietor to pay the proffered ,wage and/or personal expenses. If the accounts
represent what appears to be the sole proprietor's business checking accounts, these funds are most likely
shown on Schedule C of the sole proprietor's returns as gross receipts and expenses. Therefore, the balances
in the sole proprietor's business checking accounts with Citizens Bank and -Sharon Credit Union cannot be
considered as additional liquefiable assets in determining the petitioner's ability to pay. The AAO does not
generally accept a claim that the sole proprietor relies on the value of his or her business or equipment to show
the ability to pay because it is not likely that the petitioner will liquidate such assets in order to pay a wage.
Therefore, counsel's reliance on the sole proprietor's vehicles purchased for the business to demonstrate her
ability to pay is misplaced.
However, the record contains letters and statements from banks and investment companies regarding the sole
proprietor's accounts as evidence of her additional liquefiable assets to pay the proffered wage and to cover
living expenses. Statements from for Ms. investment account show
that she had a balance of $39,435.66 as of March 1,2004, $39,107.87 as of March 31, 2004, $38,641.06 as of
June 1, 2004 and $39,706.64 as of June 30, 2004. Statements from Scudder Investments for Ms. ••••
retirement plan account show that the sole proprietor had a' balance of $8,766.99 as of January 1, 2004,
$10,011.36 as of April 1,2004 and $10,935.75 as of June 30, 2004. The letter dated'Au gust-,,62005 fr m
The Sharon Co-operative Bank verifies that the sole proprietor has held the savings account
since August 28, 2002 with an average balance throughout the year 2003 of $24,000 and $53,000 or 2004.
These documents demonstrate -that the combined balances of savings account, retirement plan account and
investment account were approximately $70,000 in 2003 and $100,000 in 2004. The sole proprietor's
liquefiable assets were greater than the shortage amounts of $46,081.40 in 2003 and $51,507.40 in 2004
which the sole proprietor needed to be added to her adjusted gross income to pay the proffered wage and to
sustain her family in each of these years. Thus, assessing these additional liquefiable assets of the, sole
Page 6
proprietor, it is concluded that the, petitioner has proven its financial strength and viability and has the ability
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 established .that it had the continuing ability to pay the beneficiary the proffered wage and
meet iis personal expenses as of the priority date through an examination of wages paid to the beneficiary, its
adjusted gross income or other liquefiable assets in 2003 and 2004. This portion of the director's decision is
withdrawn.
However, beyond the director's decision and counsel's assertions on appeal, the AAO has identified an
additional ground of ineligibility and will discuss whether or not the petitioner has demonstrated with
regulatory-prescribed evidence that the beneficiary possessed the requisite two years of experience as a
carpenter. An application or petition that fails to comply with the technical requirements of the law may be
denied by the AAO 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 Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the
AAO reviews appeals on a de novo basis).
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, Item 14 requires
two years of experience in the job offered 5• The beneficiary set forth his credentials on Form ETA-750B and
signed his name under a declaration that the contents of the form are true and correct under the penalty of perjury.
On Part 15, eliciting information of the beneficiary's work experience, he represents that he have been working
for City Hall of Santa Cruz dasFlores as a carpenter since August 1995 to the present (he signed the Form ETA
750B on June 18, 2003). He does' not provide any additional information cORcerning his employment
background on that form.
The regulation at 8 C.F.R. § 204.5(g)(I) 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) or 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.
The instant 1-140 petition was submitted with an experience letter from Jose Francisco Salvador Fernandes,
President of the City Council of the City Hall of Santa Cruz das Flores pertinent to the beneficiary's
qualification as required by the above regulations with an English translation. . The translation of the
experience letter did not comply with the terms of 8 C.F.R. § 103.2(b)(3):
j'
Translations. Any document containing foreign language submitted to [CIS] shall be
5 CIS must look to the job offer portion of the labor certification to determine the required qualifications for
the position. CIS may not ignore a term of the labor certification, nor may it impose additional requirements.
See Matter of Silver Dragon Chinese Restaurant, 19 J&N Dec. 401,406 (Comm. 1986). See'also, Mandany
v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K Irvine, Inc. v: Landon, 699 F.2d 1006 (9th Cir. 1983);
Stewart Infra-Red Commissary 6JMassachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Page 7
accompanied by a full English language translation which the translator has certified as
complete and accurate, and by the translator's certification that he or she is competent to
translate from the foreign language into English.
The translation contains inconsistencies with the original foreign language document. The translation states.
that the beneficiary "performed the service of Carpenter from August 15, 1995 until to date." However, the
original letter does not mention any beginning date of employment. The translation indicates the letter was
signed on May 23, 2003, however, the original letter shows that it was signed on December 23, 2002. The
original letter verifies that the beneficiary worked as a carpenter for 9 years and as a gardener for 4 years.
This is not stated in the translation. Per the original letter the beneficiary should have started his employment
either 13 years ago or 9 years ago from 2002, that is 1989 or 1993. However, the beneficiary claims on the
Form ETA 750B that he worked for this employer from August 1995 to June 18, 2003 when he signed the
form. The concurrently filed Form 1-485 indicates that the beneficiary entered the United States on April 11,
2003. The beneficiary did not explain how he could have worked for the City Hall of SantaCruz das Flores
from April 11, 2003 to June 18,2003 while he was also in the United States.
The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit
sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA
1988); Matter of Sao Hoo, 11 I&N Dec. 151 (BIA 1965). Generally, when something is to be established by
a preponderance of evidence, it is sufficient that the proof establish that it is probably true. Matter ofE-M-,
20 I&N De~. 77 (Comm. 1989). 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. Matter ofHo, 19 I&N
Dec. 582, 591-592 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.
Matter ofHo, 19 I&N Dec. at 582.
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to
the director for consideration of the issue pertinent to the beneficiary's requisite experience as stated above.
The director may request any additional evidence considered pertinent. Similarly, the petitioner may provide
additional evidence within a reasonable period of time to be determined by the director. Upon receipt of all
the evidence, the director will review the entire record and enter a new decision.
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further
action in accordance with the foregoing and entry of a new decision, which, if adverse to the
petitioner, is to be certified to the AAO for review.