sustained EB-3 Case: Construction Painting

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 
 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 04 257 50580 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be sustained. 
The petitioner is an interior and exterior painting corporation. It seeks to employ the beneficiary permanently 
in the United States as a construction painter. As required by statute, the petition is accompanied by a Form 
ETA 750, Application for Alien Employment Certification, approved by the U. S. Department of Labor. 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. 
According to the petition, the business was established in 1990, and, it employs six individuals. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(iii), 
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 unslulled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
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 regulation at 8 CFR § 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
gving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
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 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. 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. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 27, 2001. The proffered wage as stated on the Form ETA 
750 is $60,496.80 per year. The Form ETA 750 states that the position requires two years experience. 
On appeal, counsel submits additional evidence. 
EAC 04 257 50580 
Page 3 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; a U.S. Internal 
Revenue Service Fonn tax return for 2001; a bank statement; and, copies of documentation concerning the 
beneficiary's qualifications as well as other documentation. 
The director denied the petition on November 17, 2004, finding that the evidence submitted did not establish 
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts that the director improperly interpreted Schedule L from the petitioner's tax return 
for 2001 and did not include disposal liquid assets. 
Counsel has submitted the following copies of documents to accompany the appeal statement: a letter from an 
accountant; the petitioner's 2001 U.S. federal tax return; and, a bank statement. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. 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. Evidence was submitted to show that the petitioner employed 
the beneficiary as a construction painter from October 1991 to November 1995. No wage information was 
submitted. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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. 111. 1982), affd, 703 
F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered 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 
v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054. 
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $60,496.80 per year fi-om the priority date of April 27,2001: 
In 200 1, the Form 1020s stated taxable income of $40,589.00. 
Examining the Form 1020s U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each 
of those returns indicates the following: 
In 2001, petitioner's Form 1020s return stated current assets of $4,991.00 and $10,839.00 in 
current liabilities. Therefore, the petitioner had <$5,848.00> in net current assets. Since the 
proffered wage is $60,496.80 per year, this sum is less than the proffered wage. 
EAC 04 257 50580 
Page 4 
Therefore, for the period from the date the Form ETA 750 was accepted for processing by the U. S. Department 
of Labor, the petitioner had not established that it had the ability to pay the beneficiary the proffered wage at the 
time of filing through an examination of its net current assets. 
Counsel asserts that the director improperly interpreted Schedule L from the petitioner's tax return for 2001 
and did not include disposal liquid assets. The petitioner's net current assets can be considered in the 
determination of the ability to pay the proffered wage especially when there is a failure of the petitioner to 
demonstrate that it has taxable income to pay the proffered wage. In the subject case, as set forth above, the 
petitioner did not have taxable income sufficient to pay the proffered wage at any time for 2001 for which the 
petitioner's tax returns are offered for evidence. 
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.' A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1020s federal tax return. The petitioner's 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. 
According to the petitioner's accountant, the certificate of deposit in the amount of $1 13,727.00 noted as 
"Other Investments" on Schedule L is evidence of the ability to pay the proffered wage. Although not listed 
on the tax return as a current asset, the account is liquid and does contain sufficient funds together with the 
taxable income to pay the proffered wage. 
The evidence submitted does establish that the petitioner had the continuing ability to pay the proffered wage 
beginning on the priority date. 
The petitioner has demonstrated its ability to pay the proffered wage from the day the Form ETA 750 was 
accepted for processing by any office within the employment system of the Department of Labor. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained. 
1 
 According to Barron's Dictionary of Accounting Term 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118.