remanded EB-3 Case: Food Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Y 
Washington, DC 20529 
- .Q 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER 
 Date: a 0 ( 
4 
IN RE: Petitioner: 
Beneficiary: 
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. tj 1153(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, .Nebraska 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 retailer of food, pastries, and beverages. It seeks to employ the beneficiary permanently in 
the United States as an area supervisor, retail chain store. 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 establikhed 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 original March 30, 2005 denial, the single issue in ths 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 lawhl permanent residence. 
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 skilled 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. 5 204.5(g)(2) states, in pertinent,part: 
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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 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 profitlloss 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 6, 
2001. The proffered wage as stated on the Form ETA 750 is $20.50 per hour (37 hour work week) or $39,442 
annually. 
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 
ri. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all pertinent 
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Page 3 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
appeal includes counsel's brief, a copy of a memorandum, dated May 4, 2004, from William R. Yates, Associate 
Director of Operations, entitled Determination of Ability to Pay under 8 C.F.R. J 204.5(g)(2), copies of the 
petitioner's 2001 through 2003 Forms 1120S, U.S. Income Tax Returns for an S Corporation, and a copy of the 
petitioner's Form 7004, Application for Automatic Extension of Time To File Corporation Income Tax Return, 
for 2004. Other Relevant evidence includes copies of the petitioner's January 2004 through June 2004 bank 
balances. The record does not contain any other evidence relevant to the petitioner's ability to pay the proffered 
wage. 
The petitioner's 2001 through 2003 Forms 1120s reflect ordinary incomes or net incomes of $53,124, -$5,917, 
and -$5,789, respectively. The petitioner's 2001 through 2003 Forms 1120s also reflect net current assets of 
$141,269, $137,416, and $140,320, respectively. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $39,442 
based on its net current assets. Counsel cites the "Yates Memorandum" in support of his contention. 
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 March 30, 2001, the beneficiary did not 
include the petitioner as a past or present employer. In addition, counsel has not provided any Forms W-2, 
Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, issued by the petitioner for the 
beneficiary indicating that the petitioner employed the beneficiary in 2001 through 2003. Therefore, the 
petitioner has not established that it employed the beneficiary in 2001 through 2003. 
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'h Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
1 
 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. fj 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 
1989); K.C.P. Food Co., Inc. v. Suva, 623 F.Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. 111. 1982), afd., 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 c'ourt 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 Cop, 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 assets2. 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 
liabilities 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 2001 through 2003 were $141,269, $137,416, and 
$140,320, respectively. The petitioner could have paid the proffered wage of $39,442 in 2001 through 2003 
from its net current assets. 
After a review of the record, it is concluded that the petitioner has established its ability to pay the salary 
offered as of the priority date of the petition and continuing until the beneficiary obtains lawful permanent 
residence. 
Nevertheless, the record of proceeding presents another issue that warrants further explanation. Under 20 
C.F.R. $5 626.20(~)(8) and 656.3, the petitioner 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 bona fide 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, 00-INA-93 (BALCA May 15, 2000). Where the person applying for a position 
owns the petitioner, 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). In Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 
2 
 It is noted that counsel appears to have confused total assets and net current assets. 
3 
 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. 
Page 5 
(Comm. 1986), the commissioner noted that while it is not an automatic disqualification for an alien 
beneficiary to have an inteiest in a petitioning business, if the alien beneficiary's true relationship to the 
petitioning business is not apparent in the labor certification proceedings, it causes the certifying officer to fail 
to examine more carefully whether the position has clearly open to qualified U.S. workers and whether U.S. 
workers were rejected solely for lawful job-related reasons. That case relied upon a Department of Labor 
advisory opinion in invalidating the labor certification. The regulation at 20 C.F.R. 5 656.30(d) provides that 
[CIS], the Department of State or a court may invalidate a labor certification upon a determination of fraud or 
willful misrepresentation of a material fact involving the application for labor certification. 
In Hall v. McLaughlin, 864 F.2d 868 (D.C. Cir. 1989), the court affirmed the district court's dismissal of the 
alien's appeal from the Secretary of Labor's denial of his labor certification application. The court found that 
where the alien was the founder and corporate president of the peGtioning corporation, absent a genuine 
employment relationship, the alien's ownership in the corporation was the functional equivalent of self- 
employment. 
Given that the beneficiary has the same last name as the petitioner, the facts of the instant case suggest that 
further investigation, including consultation with the Department of Labor may be warranted, in ol'der to 
determine whether any family or business relationship between the.petitioner and the beneficiary represents 
an impediment to the approval of any employment-based visa petition filed by this petitioner on behalf of the 
this beneficiary. For this reason, the decision of the director will be withdrawn, and the petition will be 
remanded to determine the beneficiary's relationship to the petitioner. 
Also, beyond the decision of the director, there is another issue that must be resolved before the petition may 
be approved. That issue is whether the position meets the requirements of a skilled worker, as petitioned for. 
The regulation at 8 C.F.R. § 204.5(1)(3) states, in pertinent part: 
\ 
(ii) Other documentation - (A) General. Any requirements of training or experience for skilled 
workers, professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the training 
received or the experience of the alien. 
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied 
by evidence that the alien meets the educational, training or experience, and any other 
 , 
requirements of the individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information Pilot Program 
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occupational designation. The minimum requirements for this classification are at least two 
years of training or experience. 
To be eligble for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the Department of 
Labor's employment service system. Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Cornm. 1977). In this 
case, that date is April 6,2001. 
The approved alien labor certification, "Offer of Employment," (Form ETA-750 Part A) describes the terms and 
conditions of the job offered. Block 14 and Block 15, which should be read as a whole, set forth the educational, 
training, and experience requirements for applicants. In ths case, Block 14 requires that the beneficiary have a 
high school education and one year of experience in the job offered. Block 15 contains no requirements. It is 
noted that a change was made by the petitioner on September 20, 2002 to one year of experience in the job 
offered. It is unclear what the amount of time was origmally required on the ETA 750. 
As the petitioner has not established that the position requires at least two years training or experience as 
necessary for the skilled worker position, the beneficiary cannot be found qualified for classiiibation as a 
skilled worker. 
For the reasons discussed above, the director must afford the petitioner reasonable time to provide evidence of 
its relationship to the beneficiary, whether the job position meets the requirement of a skilled worker, 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. 4 1361. 
ORDER: 
 The director's March 30, 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.