remanded EB-3 Case: Farming

identiQing deta &kted 
prevent clearly UIIW~~~ 
invasion ofpewd $V~Y 
PUBLIC COPY 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC-03-177-54204 Office: VERMONT SERVICE CENTER Date: MAY 0 9 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional ~ursuant to section 
- . . - - - . . 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 3 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 
the office that originally decided your case. Any further inquiry must be made to that office. 
sc obert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-03-177-54204 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded 
to the director. 
The petitioner is a farm. It seeks to employ the beneficiary permanently in the United States as a heating and 
air conditioning installer servicer. 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. 
On appeal, the petitioner submits a brief statement. 
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. 
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. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, the day the Form ETA 750 was accepted for processing by any office within the employment system of 
the Department of Labor. See 8 CFR 5 204.5(d). Here, the Form ETA 750 was accepted for processing on 
January 14, 1998. The proffered wage as stated on the Form ETA 750 is $34.25 per hour ($71,240 per year). 
On the Form ETA 750B, signed by the beneficiary, the beneficiary claimed to have worked for the petitioner 
since June 1992. 
On the petition, the petitioner claimed to have been established in 1882, but left other items in Part 5 blank. 
In support of the petition, the petitioner submitted its unaudited financial statements as of December 3 1, 2000. 
Because the director deemed the evidence submitted insufficient to demonstrate the petitioner's continuing 
ability to pay the proffered wage beginning on the priority date, on April 23, 2004, the director requested 
additional evidence (RFE) pertinent to that ability. The director specifically requested the 1998 tax return or 
annual reports for 1998 which are accompanied by audited or reviewed financial statements and copies of the 
beneficiary's W-2 forms. In response, counsel submitted the petitioner's tax return for 1998 along with 
financial statements prepared pursuant to a compilation. 
The director determined that the evidence submitted did not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date, and, on August 19, 2004, denied the petition. 
EAC-03-177-54204 
Page 3 
On appeal, counsel submits a letter from the petitioner asserting that the gross income and labor expenses, 
"which incorporated the salary of the [bleneficiary," reflected on the financial statements and tax return were 
sufficient to pay the beneficiary the proffered wage. The petitioner also asserts that a "one-time plant 
disease" limited its sales in 1998. 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (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 establish that it 
employed and paid the beneficiary the proffered wage with any documentary evidence. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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) 
(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.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), afd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's 
gross receipts 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 court 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 that 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. 
Counsel submitted the petitioner's financial statements. Counsel's reliance on unaudited financial statements 
is misplaced. The regulation at 8 C.F.R. 5 204.5(g)(2) makes clear that where a petitioner relies on financial 
statements to demonstrate its ability to pay the proffered wage, those financial statements must be audited. 
EAC-03-177-54204 
Page 4 
An audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable 
assurance that the financial statements of the business are free of material misstatements. The unaudited 
financial statements that counsel submitted with the petition are not persuasive evidence. The accountant's 
report that accompanied those financial statements makes clear that they were produced pursuant to a 
compilation rather than an audit. As the accountant's report also makes clear, financial statements produced 
pursuant to a compilation are the representations of management compiled into standard form. The 
unsupported representations of management are not reliable evidence and are insufficient to demonstrate the 
ability to pay the proffered wage. 
The evidence indicates that the petitioner is a general partnership. 
 The record contains copies of the 
petitioner's Form 1065 U.S. Return of Partnership Income for 1998. 
 Where a partnership's income is 
exclusively from a trade or business, CIS considers net income to be the figure for ordinary income, shown on 
line 22 of page one of the petitioner's Form 1065. The instructions on the Form 1065 U.S. Income Tax 
Return of Partnership Income state on page one, "Caution: Include only trade or business income and 
expenses on lines la through 22 below." In the instant case, the petitioner's tax return Line 22 of page one of 
Form 1065 shows the petitioner's ordinary income (loss) from trade or business activities of $(114,708). 
Therefore, the petitioner had insufficient net income to pay the proffered wage in 1998. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may 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 liabilities.' Current assets include cash on 
hand, inventories, and receivables expected to be converted to cash within one year. A partnership's year-end 
current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 
15 through 17. If a partnership'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 tax return shows that the partnership had current assets of $92,054 and current liabilities of 
$738,381, thus net current assets of $(646,327) in 1998. Therefore, the petitioner had insufficient net current 
assets to pay the proffered wage in 1998. 
A partnership consists of a general partner(s) and may also have limited partners. 
 In the instant case, 
Schedule K-1 of Form 1065 for 1998 shows that the petitioner is a partnership consisting of four general 
partners. A general partner is personally liable for the partnership's total liabilities. As such, a general 
partner's personal assets may be utilized to show the ability to pay the proffered wage. However, a general 
partner's personal expenses and liabilities must also be examined in order to make a determination that his or 
her assets are truly available to pay the proffered wage. The record of proceeding contains Schedule F to 
Form 1040. However, it is unclear whether the schedule F is for one of the four general partners and has no 
indication about the general partner's adjusted gross income and living expenses or information pertaining to 
any other general partners' situation. Therefore, the record does not contain enough information regarding the 
1 
 According 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 118. 
EAC-03- 177-54204 
Page 5 
general partners' personal assets or expenses to be utilized to show the petitioner's ability to pay the proffered 
wage. 
Beyond the director's decision, the AAO also notes that the record does not contain any documentary evidence to 
establish the beneficiary's qualification prior to the filing. A labor certification is an integral part of ths petition, 
but the issuance of a Form ETA 750 does not mandate the approval of the relating petition. To be elig~ble for 
approval, a beneficiary must have all the education, training, and experience specified on the labor certification as 
of the petition's priority date. 8 C.F.R. 9 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 
159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). The 
priority date 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. 9 204.5(d). The priority date in the instant petition is January 
14, 1998. 
The certified Form ETA 750 in the instant case states that the position of heating and air conditioning installer 
servicer requires two (2) years of experience in the job offered or as heating mechanic in any industry. On the 
Form ETA 750B, signed by the beneficiary on January 13, 1998, the beneficiary set forth his work 
experience. He listed his experiences as a full time "green house heating mechanic" with the petitioner since 
June 1992 and as a full time "mechanic" at PPS Inc. in Lomza, Poland from May 1970 to January 1992. 
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. Comrn. 1977). 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 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 
1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissaiy of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
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) fi-om 
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. 
The instant 1-140 petition was submitted without any documentation concerning the beneficiary's 
qualifications as required by the above regulation. The director did not address the issue of the beneficiary's 
qualifications as required by the regulation at 8 C.F.R. 9 204.5(g)(l). Counsel does not submit any such 
evidence on appeal. Therefore, the record of proceeding does not contain any evidence to establish that the 
beneficiary possessed the requisite two years experience prior to the priority date. 
The director failed to request evidence and determined that the petitioner did not establish its ability to pay the 
proffered wage without consideration of the general partners' personal assets and personal expenses. The 
director failed to request and consider the petitioner's tax returns for 1999 through the present. The director 
also failed to request evidence to determine whether the petitioner establishes that the beneficiary possessed 
the requisite two years experience prior to the priority date. Therefore, the petition must be remanded to the 
director for requesting additional evidence and making a new decision upon receipt of additional evidence. 
EAC-03-177-54204 
Page 6 
Although CIS will not consider gross income without also considering the expenses that were incurred to 
generate that income, the overall magnitude of the entity's business activities should be considered when the 
entity's ability to pay is marginal or borderline. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 
1967). In the present case, the petitioner is in farming business since 1882, had more than $3 million in gross 
receipts and paid out more than $1 million in wages and salaries labor expenses. Finally, the Immigrant 
Petition for Alien Worker (Form 1-140) indicated that the proffered position was not a new position, thereby 
implying that the beneficiary would be replacing a previously hired employee. 
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to 
the director consideration of the issue 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.