remanded EB-3 Case: Retail Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
: FILE: 
IN RE: 
m Office: TEXAS SERVICE CENTER Date: BJOV 1 3 2006 
SRC 05 056 5 1695 
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. 9 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. 
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24 414 
$4 Robert P. dernann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition that is now before 
the Administrative Appeals Office on appeal. The matter will be remanded for further consideration and 
action. 
The petitioner is a convenience store. It seeks to employ the beneficiary permanently in the United States as a 
store manager. 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 counsel submitted a brief and additional evidence. 
I 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(i), 
provides for granting 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. fj 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 acco.mpanied 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 C.F.R. $204.5(d). Here, the Form ETA 750 was accepted for processing on 
 * 
April 6, 2001. 
 The proffered wage as stated on the Form ETA 750 is $16.74 per hour, which equals 
$34,8 19.20 per year. 
The Form ETA 750 also indicates that the proffered position is "evening manager" or "retail store manager." 
It further indicates that the beneficiary's duties would be to plan and prepare a work schedule and to assign 
employees to specific job duties. 
The Form 1-140 petition in this matter was submitted on December 20, 2004. On the petition, the petitioner 
stated that it was established on November 5, 1999 and that it employs three workers. The petition states that 
the petitioner's gross annual income is $391,003 and that its net annual income is "unknown." On the Form 
ETA 750, Part B, signed by the beneficiary, the beneficiary claimed to have worked for the petitioner since 
September 2000. Both the petition and the Form ETA 750 indicate that the petitioner would employ the 
beneficiary in Houston, Texas. 
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Page 3 
In support of the petition, counsel submitted (1) copies of the petitioner's 2001, 2002, and 2003 Form 1 120S, 
U.S. Income Tax Returns for an S Corporation, (2) copies of the petitioner's 2002 and 2003 W-3 transmittals, 
(3) copies of the petitioner's 2002 and 2003 W-2 Wage and Tax Statements, (4) a copy of the petitioner's 
2003 Form 940-EZ Unemployment (FUTA) Tax Return, (5) copies of the petitioner's Form 941 quarterly 
returns for all four quarter of 2002 and all four quarters of 2003, and (6) a copy of a certificate,of deposit 
(CD). 
The tax returns submitted indicate that the petitioner is a corporation, that it incorporated on October 18, 
1999, and that it reports taxes pursuant to cash convention accounting and the calendar year. 
During 2001 the petitioner declared ordinary income of $18,786. The corresponding Schedule L shows that 
at the end of that year the petitioner had current assets of $44,286 and current liabilities of $1,988, which 
yields net current assets of $42,298. 
Durlng 2002 the petitioner declared ordinary income of $17,222. The corresponding Schedule L shows that 
at the end of that year the petitioner had current assets of $36,813 and current liabilities of $2,322, whlch 
yields net current assets of $34,491. 
During 2003 the petitioner declared ordinary income of $18,221. The corresponding Schedule L shows that 
at the end of that year the petitioner had current assets of $37,18 1 and current liablllties of $3,178, which 
yields net current assets of $34,003. 
A Schedule K-1 submitted with the 2001 return shows that the beneficiary owned 25% of the petitioner 
during that year. A ScheduIe K-1 submitted with the 2002 return shows that the beneficiary owned 25% of 
the petitioner during that year. A Schedule K-1 submitted with the 2003 return shows that Fisal Momin then 
owned 100% of the petitioner. 
The 2002 W-3 transmittal shows that the petitioner paid total wages of $36,000 during that year. The 2002 
W-2 forms show that the petitioner paid those wages to the beneficiary and to another employee, both of 
whom earned $18,000 during that year. The other employee has the same family name as the beneficiary. 
The 2002 Form 941 quarterly returns show that the petitioner paid $9,000 during each of the four quarters of 
2002, thus confirming that the petitioner paid total wages of $36,000 during that year. 
The 2003 Form 940-EZ shows that the petitioner again paid total wages of $36,000 during that year. The 
2003 W-3 transmittal confirms that amount. The 2003 W-2 forms show that amount the petitioner paid that 
amount to the beneficiary and two other employees, all three of whom earned $12,000 dunng that year. Both 
of the other employees have the same family name as the beneficiary. The 2003 Form 941 quarterly returns 
show that the petitioner paid $9,000 during each of'the four quarters of 2003, thus confirming that the 
petitioner paid total wages of $36,000 during that year. 
The certificate of deposit shows that the petitioner deposited $30,000 on October 28, 2004 into a CD that 
would mature on June 28,2005. 
Page 4 
On February 8, 2005 the Director, Texas Service Center, issued a notice of intent to deny in this matter. The 
director stated that the evidence provided does not indicate that the petitioner has had the continuing ability to 
pay the proffered wage beginning on the priority date. The director also noted that the petitioner had failed to , 
provide an employment verification letter showing that the beneficiary has the requisite two years of 
qualifying experience. Finally, the director noted that the number of workers the petitioner has historically 
employed does not appear to be sufficient that the beneficiary could supervise employees on the evening shift 
while leaving sufficient employees to work on the day shift. 
In response, counsel submitted additional copies of evidence previously submitted in support of the petition, 
an employment verification letter dated March 2,2000, and counsel's own letter dated March 7,2005. 
The March 2, 2000 employment verification letter is from Enlight Corporation Incorporated [sic] dba Metro 
Market and states that the beneficiary worked there as a store manager from April 1997 to August 2000. This 
office notes that a letter verifying employment through August 2000 could not be dated March 2,2000. 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Further, the petitioner must resolve any 
inconsistencies in the record by independent objective evidence. Attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence sufficient to demonstrate where the truth, in fact, lies, will 
not suffice. Matter of Ho, 19 I&N Dec. 582 (Cornrn. 1988). 
In his March 7, 2004 letter counsel acknowledged that the "labor certification states that the [beneficiary 
would] supervise two employees." Counsel asserts, however, that whether the petitioner actually has two 
employees for the beneficiary to supervise is irrelevant to the approvability of the petition. Counsel stated 
that the petitioner, in stating that the beneficiary would supervise two people, was only trying to provide "a 
simple guidance for the Department of Labor to be able to determine the correct wage level of the alien and . . 
. [supervision of other employees] is not a job requirement." Counsel noted that, in any event, the petitioner 
now has three employees, including the beneficiary, and the beneficiary will therefore have two employees to 
supervise. 
Counsel further noted that the petitioner is not obliged to pay the beneficiary the proffered wage until after 
permanent residency is granted to him and stated that the amount of the proffered wage that the petitioner is 
required to demonstrate the ability to pay during 2001 should be prorated to reflect that only 38 weeks of that 
year remained as of the priority date. Counsel also asserted that both the wages paid to the beneficiary during 
2001 and his share of the petitioner's ordinary income were funds available to pay the beneficiary the 
proffered wage during 2001. Finally counsel asserted that the petitioner's CD should be considered a net 
current asset. 
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 April 29, 2005, denied the petition. 
The director noted that counsel's explanation for the incl'usion on the labor certification of the requirement 
that the beneficiary be able to supervise two employees was unclear. The director further noted that, although 
the petitioner now employs three workers, if the beneficiary were to supervise both of the other employees on 
the evening shift this would leave no employees available to work the day shift.' 
Page 5 
On appeal, counsel submitted monthly statements pertinent to the petitioner's bank account and a brief. 
In the brief counsel stated, as to the issue of the number of employees the beneficiary will supervise, that the 
petitioner need not employ the requisite number of employees until permanent resident status is granted. 
Further, counsel cited an unpublished decision of this office for the proposition that the amounts shown on the 
petitioner's checking account statements should be considered. Counsel also reiterates the proposition that 
the shareholder dividends paid to the beneficiary during 2001 represent funds available to pay the proffered 
wage. 'i 
J 
Counsel's assertion that the amount of the proffered wage should be prorated during 2001 is unconvincing. 
We will not consider 12 months of income toward an ability. to pay a proffered wage during some shorter 
period any more than we would consider 24 months of income towards paying the annual amount of the 
proffered wage. While CIS will prorate the proffered wage if the record contains evidence of net income or 
payment of the beneficiary's wages specifically covering the portion of the year that occurred after the 
priority date (and only that period), the petitioner has not submitted such evidence. 
Counsel's reliance on the bank statements in this case is misplaced. First, bank statements are not among the 
three types of evidence, enumerated in 8 C.F.R. fj 204.5(g)(2), which are the requisite evidence of a 
petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate 
cases," the petitioner has not demonstrated that the evidence required by 8 C.F.R. fj 204.5(g)(2) is 
inapplicable or that it 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 reported on its tax returns. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will examine 
whether the petitioner employed 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 demonstrated that it employed the beneficiary and paid him $18;000 during 2002 
and $12,000 during 2003. The petitioner is obliged to show the ability to pay the balance of the proffered 
wage during those years. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during a given period, the AAO will, in addition, examine the net income figure reflected on 
the petitioner's federal income tax return, without consideration of depreciation or other expenses. 'CIS may 
rely on federal income tax returns to assess a petitioner's ability to pay a proffered wage. Elatos Restaurant 
1 
 A possible exception exists to the general rule that bank accounts are ineffective in showing a petitioner's continuing 
ability to pay the proffered wage beginning on the priority date. If the petitioner's account balance showed a monthly 
incremental increase greater than or equal to the monthly portion of the proffered wage, the petitioner might be found to 
have demonstrated the abdity to pay the proffered wage with that incremental increase during that month. If that trend 
continued, with the monthly balance increasing during each month in an amount at least equal to the monthly amount of 
the proffered wage, then the petitioner might have shown the ability to pay the proffered wage during the entire salient 
period. That scenario is absent from the instant case, however, and this office does not purport to decide the outcome of 
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that hypothetical case. 
i 
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Page 6 
Gorp. 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), affd, 703 F.2d 571 (7th Cir. 1983). See also 8 C.F.R. 5 204.5(g)(2). 
Showing that the petitioner's gross receipts exceeded the proffered wage, or greatly exceeded it, is 
insufficient. Similarly, showing that the petitioner paid total wages in excess of the proffered wage, or greatly 
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 CIS should have consldered income before 
expenses were paid rather than net income. Finally, no precedent exists that would allow the petitioner to add 
back to net cash the depreciation expense charged for the year. Chi-Feng Chang at 537. See also Elatos 
Restaurant, 623 F. Supp. at 1054. 
The petitloner's net income is not the only stat~st~c that may be used to show the petitioner's ability to pay the 
proffered wage. If the petitioner's net income, ~f any, dunng a glven period, added to the wages paid to the 
beneficiary during that penod, if any, do not equal the amount of the proffered wage or more, the AAO will 
revlew the petitioner's assets as an alternative method of demonstrating the ability to pay the proffered wage. 
The petitioner's total assets, however, are not available to pay the proffered wage. The pet~tioner's total 
assets include those assets the petitioner uses in ~ts busmess, which will not, m the ord~nary course of 
business, be converted to cash, and w~ll not, therefore, become funds available to pay the proffered wage. 
Only the petitioner's current assets -- the pet~t~oner's year-end cash and those assets expected to be consumed 
oi- converted into cash within a year -- may be consldered. Further, the pet~tioner's current assets cannot be 
viewed as available to pay wages w~thout reference to the petitioner's current liabilities, those liabilities 
projected to be paid within a year. CIS will consider the petitioner's net current assets, its current assets 
minus its current liabihties, in the determination of the petitioner's ability to pay the proffered wage. 
Current assets include cash on hand, inventories, and receivables expected to be converted to cash or cash 
equivalent within one year. ~'urrent liabilities are liabilities due to be paid within a year. On a Schedule L the 
petitioner's current assets are typically found at lines l(d) through 6(d). Year-end current liabilities are 
typically2 shown on lines 16(d) through 18(d). 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. 
Counsel asserts that the amount of the eight-month CD in evidence should be considered an additional current 
asset available to pay wages. The CD was'purchased for $30,000 on October 28,2004 and was due to mature 
on June 28, 2005. This does apparently represent a current asset, and should likely have been reported as 
such on the petitioner's 2005 Schedule L. As was noted above, however, a petitioner's current assets cannot 
be considered without reference to counterbalancing current l~ab~lities. Further, that the petitioner had this 
current asset during 2005 does not demonstrate that it had the ability to pay additional wages, beyond those 
shown with its copies of annual reports, federal tax returns, or audited financial statements, during previous 
years. 
The proffered wage is $34,8 19.20 per year. The priority date is April 6,2001. 
The location of the taxpayer's current assets and current liabilities varies slightly from one version of the Schedule L to 
another. 
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Page 7 
The petitioner has not demonstrated that it paid any wages to the beneficiary during 2001 and must show the 
ability to pay the entire proffered wage during that year. During that year the petitioner declared net income 
or ordinary income of $18,786. That amount is insufficient to pay the proffered wage. At the end of that 
year, however, the petitioner had net current assets of $42,298. That amount is sufficient to pay the proffered 
wage. The petitioner has demonstrated its ability to pay the proffered wage during 200 1. 
The petitioner paid the beneficiary $18,000 during 2002 and must show the ability to pay the remaining 
$16,289.30 balance of the proffered wage during that year. During that year the petitioner declared ordinary 
income of $17,222. That amount is sufficient to pay the balance of the proffered wage. The petitioner has 
demonstrated the ability to pay the proffered wage during 2002. 
The petitioner paid the beneficiary $12,000 during 2003 land must show the ability to pay the remaining 
$22,819.20 of the proffered wage during that yLar. During that year the petitioner declared ordinary income 
of $1 8,221. That amount is insufficient to pay the balance of the proffered wage. At the end of that year, 
however, the petitioner had net current assets of $34,003. That amount is sufficient to pay the balance of the 
proffered wage. The petitioner has demonstrated the ability to pay the proffered wage during 2003. 
The Texas Service Center issued a notice of intent to deny in this matter on February 8, 2005. On that date 
the petitioner's 2004 tax return may not have been available. The petitioner was not obliged, therefore, to 
provide evidence pertinent to 2004 and subsequent years. 
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The petitioner demonstrated the ability to pay the proffered wage during each of the salient years. Therefore, 
the petitioner has established that it had the continuing ability to pay the proffered wage beginning on the 
priority date. 
The record suggests additional issues, however, that were not addressed in the decision of denial. 
All three of the petitioner's employees have the same family name. The record contains a marriage certificate 
showing that the beneficiary married Rukhsana Momin on October 22, 1996. The petitioner's wife and the 
petitioner's owner, Fisal Momin, share the same family name. Finally, the record contains 2001 and 2002 
Schedules K-1 that indicate that the beneficiary owned 25% of the petitioner during both of those years. 
These factors suggest that the beneficiary has some relationship to the petitioner or the petitioner's owner 
other than the employer/employee relationship. 
Pursuant to 20 C.F.R. §656.20(~)(8) the petitioner has the burden when asked to show that a valid 
employment relationship exists and that a bonafzde job opportunity is ava~lable to U.S. workers. See Matter 
of Amger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bona fzde job offer may arise 
where the beneficiary is related to the petitioner by blood or the relationship may be financial, by marriage, or 
through fnendship." 
 See Matter of Summart, 374, 00-INA-93 (BALCA May 15, 2000). 
 Where the 
beneficiary owns the petitioner, the job offer is not bonafzde. See Bulk Farms, Inc. v. Martin, 963 F.2d 1286 
(9th Cir. 1992). 
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Page 8 
In this case, given the evidence'cited above, the relationship of the beneficiary to the petitioner, and whether 
the proffered position was truly open to qualified U.S. workers, were insufficiently investigated. Because 
these issues were not addressed in the decision of denial, and the petitioner was not accorded an opportunity 
to address them, this office does not rely on these issues, even in part, as a basis for today's decision. On 
remand, however, the director may request additional related evidence or require the petitioner to address 
these issue. 
Further, as was noted above, the employment verification letter submitted is flawed in that it purports to 
verify employment that occurred after the date of the letter. Again, because that issue was not addressed in 
the decision of denial, and the petitioner was not accorded an opportunity to address it, this office does not 
rely on that issue, even in as a basis for today's decision. On remand, however, the director may require 
the petitioner to address this issuc3 
Counsel has asserted that the amount of the CD in evidence should be considered to have been a current asset 
- during 2005. If the amount of that CD is reflected as a current asset on the petitioner's 2005 tax return then it 
should, of course, be considered. If that amount 'is not reflected in that return then the petitioner should 
address why it is not and why it should then be considered as a current asset of the petitioner during that year. 
This office notes that the Form ETA 750 does not explicitly state that the beneficiary will supervise two 
employees. Rather, it states that the beneficiary will "plan and prepare work schedule and assign employees 
to specific job duties," thus implying that the beneficiary will supervise two or more. 
The director does not appear to have based the denial, even in part, on this perceived discrepancy, but only to 
have mentioned it. Although it is not made clear the director appears to have considered that if the petitioner 
had insufficient employees to require a night manager then it did not have a legitimate need to fill the 
proffered position and the job offer was not bonafide. 
In response, counsel appears to state that even though the duties of the proffered position as stated on the 
Form ETA 750 specify that the beneficiary would assign job duties to more than one employee, the petitioner 
is not required to demonstrate that it has the need, at the time of the prionty date or at any time prior to the 
approval of the petition, for a "retail store manager" or "evening manager" who would oversee two or more , 
employees. Counsel indicates that the petitioner need only have more than one employee for the beneficiary 
to supervise subsequent to the approval of the petition. 
 Counsel asserts that the only reason that the 
petitioner specified that the beneficiary would supervise more than one employee on the Form ETA 750 was 
to allow the Department of Labor to correctly calculate the proffered wage. Counsel further notes that the 
petitioner now has three employees, including the beneficiary, and that the beneficiary therefore has two other 
employees to supervise. 
Counsel's response is unconvincing. The petitioner has the burden of establishing that it will employ the 
beneficiary in a position that complies with the tks of the Form ETA 750 as certified by the Department of 
Labor. See Matter of Izdebska, 12 I&N Dec. 54 (Reg. Comm. 1966). Consequently, the director was correct to 
examine whether the petitioner's business had sufficient employees to need a "retail store manager" as defined on 
3 
 Pursuant on Matter of Ho, supra, the director may require contemporaneous evidence of that claimed employment. 
Page 9 
the Form ETA 750. Further, as the proffered position is "evening manager" or "retail store manager", the director 
was correct to question the assertion that the beneficiary will supervise both of the petitioner's two other current 
employees, assuming that the petitioning convenience store is also open during the day. 
The director does not appear to have based the denial on this issue, and neither does this office base today's 
decision, even in part, on this issue. On remand, however, the director may further explore this issue. 
The matter will be remanded for further consideration and action. On remand the director may consider the 
additional issues noted above or any other issues material to the approvability of the petition. The director 
may also request evidence salient to those or any relevant issues, including the petitioner's ability to pay the 
proffered wage during the years since 2003. 
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not met that burden. 
L 
ORDER: The director's decision is withdrawn. The matter is remanded for fiu-ther consideration and entry of 
a new decision, which, if adverse to the petitioner, is to be certified to the AAO for review.