remanded EB-3 Case: Construction

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
DL 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 3 1 153(b) 
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 Off~ce 
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 remanded for further 
consideration. 
The petitioner is a residential construction business. It seeks to employ the beneficiary permanently in the 
United States as a cement mason. 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. 
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 ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's January 14,2005 denial, the single issue in ths case is whether or not the petitioner 
established its continuing ability to pay the proffered wage beginning on the priority date of the visa petition. 
Section 203(b)(3)(A)(i) of 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 slulled 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, 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. In a case where the prospective United States employer employs 100 or more 
workers, the director may accept a statement fiom 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 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 CFR $ 204.5(d). The priority date in the instant petition is April 
25,2001. The proffered wage as stated on the Form ETA 750 is $17.00 per hour or $35,360 annually. 
The AAO takes a de novo look at issues raised in the denial of ths 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 appeal1. Relevant evidence submitted on 
I 
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. €J 103.2(a)(l). The record in the instant case 
appeal includes counsel's brief, a copy of the beneficiary's 2001 Form W-2, Wage and Tax Statement, and a copy 
of a memorandum, dated February 16, 2005, from William R. Yates, Associate Director, Operations, entitled 
Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). Other relevant evidence includes copies of 
the petitioner's 2000 through 2002 Forms 1120, U.S. Corporation Income Tax Returns, and copies of the 
petitioner's 2001 bank statements from two separate checkng accounts. The record does not contain any other 
evidence relevant to the petitioner's ability to pay the proffered wage. 
The petitioner's 2000 through 2002 tax returns reflect a taxable income before net operating loss deduction and 
special deductions or net incomes of $28,553, -$11,044, and $27,279, respectively. The petitioner's 2000 through 
2002 tax returns also reflect net current assets of $19,352, $9,852, and $34,944, respectively. 
The beneficiary's 2001 Form W-2, issued by the petitioner, reflects wages earned by the beneficiary of 
$22,389.75 in 2001 or $12,970.25 less than the proffered wage of $35,360. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $35,360 
based on its cash flow and its longevity. Counsel also states that the director erred in not issuing a request for 
evidence, thereby, arriving at a conclusion based on a lack of substantial evidence. Counsel cites a 
memorandum from William R. Yates, several non-precedent decisions, a Board of Alien Labor Certification 
Appeals (BALCA) case, Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), and Full Gospel Portland 
Church v. Thornburgh, 730 F. Supp. 441 (D.C. 1988) in support of his contentions. 
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. 9 204.5(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. Comrn. 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 consideredprima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed on April 20, 20012, the beneficiary claims to have been 
employed by the petitioner from August 1997 to the present. However, the petitioner has only provided the 
beneficiary's 2001 Form W-2 showing earnings of $22,389.75 as evidence that it employed the beneficiary in 
2001. Therefore, CIS has no evidence that the petitioner compensated the beneficiary for his employment in 
1997 through 2000 or in 2002 to the present. Therefore, any funds paid to the beneficiary in those years 
cannot be used as evidence of the petitioner's ability to pay the proffered wage in 2002 to the present. 
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). 
2 
 It is noted that the signature does not appear to be that of the beneficiary. 
As an alternative 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, 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 (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), af'd., 703 F.2d 571 (7~ Cir. 1983). In K.C.P. Food Co., Inc., the court held that 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 
CIS 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 also Elatos Restaurant Corp., 632 F. Supp. at 1054. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a 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 
liabilibes are shown on lines 16 through 18. If a corporation's end-of-year 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 petitioner's net current assets in 2000 through 2002 were $19,352, $9,852, and $34,944, 
respectively. The petitioner is obligated to show that it had sufficient funds to pay the difference between the 
proffered wage of $35,360 and the actual wages paid to the beneficiary. In this case that difference was 
$12,970.25 in 2001. The petitioner could not have paid the difference of $12,970,25 between the proffered 
wage of $35,360 and the actual wages paid to the beneficiary of $22,389.75 from its net current assets in 
2001. In addition, since no Forms W-2 were provided for 2000 or 2002, the AAO cannot determine if the 
petitioner had sufficient funds to pay the difference between the proffered wage of $35,360 and the actual 
wages paid to the beneficiary in 2000 and 2002~. 
Counsel states that the petitioner has established its ability to pay the proffered wage through its bank 
statements or cash flow. However, counsel's reliance on the balances in the petitioner's bank accounts is 
misplaced. First, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. 
3 
 According to Barron's Dictionary of Accounting Terms 117 (3'* 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. 
4 
 It is noted that the petitioner failed to provide its 2003 tax return on appeal; and, therefore, the AAO is 
unable to determine if the petitioner had sufficient funds to pay the proffered wage in 2003. 
$ 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While ths regulation allows 
additional material "in appropriate cases," the petitioner in thls 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. 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 above in determining the petitioner's net current assets. 
Counsel claims that the "Center Director failed to issue a Request for Evidence and made an error when applying 
the facts to the law and anived at the conclusion that the Petitioner did not establish its ability to pay the offered 
wage at the time of filing." Counsel cites Full Gospel Portland Church v. Thornburgh, Matter of Sonegawa, 
several non-precedent decisions, and a BALCA case in support of his contention that CIS must consider all facts, 
including but not limited to taxable income. Counsel also cites the internal memorandum by William Yates to 
support hs contention that the director erred in not issuing a Request for Evidence. 
In the instant case, with regard to Full Gospel Portland Church v. Thornburgh, the AAO 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). In addition, with regard to the non-precedent cases, whle 8 C.F.R. 4 
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. 4 103.9(a). Furthermore, the language of the regulation at 8 
C.F.R. $ 204.5(g)(2) clearly indicates what the basic evidentiary standard is to determine the ability to pay. 
There is nothing to indicate that the three basic evidentiary forms outlined in the regulation, e.g., federal tax 
forms, annual reports, and audited financial statements, are to become secondary or tangential evidence. 
Rather, the regulations clearly state that in "appropriate cases," CIS might request or a petitioner might submit 
additional evidence such as bank accounts, profit/loss statements, or personnel records. What is required is 
verifiable evidence that supports the entire record. 
The regulation at 8 C.F.R. $ 103.2(b)(8) states in pertinent part: 
Request for evidence. If there is evidence of ineligibility in the record, an application or 
petition shall be denied on that basis notwithstanding any lack of required initial evidence. . . 
Except as otherwise provided in this chapter, in other instances where there is no evidence of 
ineligibility, and initial evidence or eligibility information is missing or the Service finds that 
the evidence submitted either does not fully establish eligibility for the requested benefit or 
raises underlying questions regarding eligibility, [CIS] shall request the missing initial 
evidence, and may request additional evidence, including blood tests. 
In the instant case, the petitioner submitted its 2000 through 2002 income tax returns as proof of its ability to 
pay the proffered wage. The tax returns reflect net incomes of $28,553, -$11,044, and $27,279, respectively. 
The tax returns also reflect net current assets of $19,352, $9,852, and $34,944, respectively. Since the 2001 
tax return represented the year of the priority date and since the petitioner could not pay the difference of 
$12,970.25 between the proffered wage of $35,360 and the actual wage of $22,389.75 paid to the beneficiary 
in 2001 from its net income or net current assets, the director determined that the petitioner was ineligible at 
that point, and he was not obligated to continue the adjudication further by issuing a RFE. The director is not 
responsible for the type or amount of evidence submitted initially. That responsibility is correctly placed with 
the petitioner. However, since Form ETA 750 indicated that the petitioner employed the beneficiary from 
1997 to the present, the director could have issued a request for evidence for copies of the beneficiary's 
Forms W-2 or other evidence indicating wages paid to the beneficiary and any other documentation 
determined to be useful. In addition, the petitioner may have been able to establish its ability to pay the 
proffered wage based on Matter of Sonegawa, which will be discussed below. 
If the petitioner does not have sufficient net income or net current assets to pay the proffered salary, CIS may 
consider the overall magnitude of the entity's business activities. Even when the petitioner shows insufficient 
net income or net current assets, CIS may consider the totality of the circumstances concerning a petitioner's 
financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter of 
Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The district director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In the instant case, counsel has provided three tax returns (2000 
through 2002) for the petitioner. None of the tax returns currently demonstrate that the petitioner has the 
ability to pay the proffered wage. In addition, the three tax returns are not enough evidence to establish that 
the business has met all of its obligations in the past or to establish its historical growth. There is also no 
evidence of the petitioner's reputation throughout the industry. 
As the petitioner may meet the requirements of Matter of Sonegawa, the director must afford the petitioner 
reasonable time to provide evidence of its ability to pay the beneficiary the proffered wage of $35,360, to 
provide copies of the beneficiary's Forms W-2, payroll summaries, cancelled checks, etc., and any other 
evidence the director may deem necessary. The director shall then render a new decision based on the 
evidence of record as it relates to the regulatory requirements for eligibility. As always, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
ORDER: 
 The director's January 14, 2005 decision is withdrawn. The petition is remanded to the director 
for entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for 
review.