sustained EB-3 Case: Household Management

ldenwng data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
b s 
WAC 03 179 53153 
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. $ 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. 
~obert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Califomia Service Center, denied the preference visa petition that is now 
before the Administrative Appeals Office on appeal. The appeal will be sustained. The petition will be 
approved. 
The petitioner is a married couple seeking to employ the beneficiary permanently in the United States as a 
household 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 found that the 
petitioning couple had not established that they 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 submits a brief and additional evidence. 
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. 5 204.5(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. 
A 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. 5 204.5(d). Here, the Form ETA 750 was accepted for processing on 
May 10, 2000. The proffered wage as stated on the Form ETA 750 is $502 per week, which equals $26,104 
per year. 
On the petition, the petitioning couple stated that their annual income is "$1 10,000 +." On the Form ETA 
750, Part B, signed by the beneficiary, the beneficiary claimed to have worked for the petitioning couple since 
April 1997. Both the petition and the Form ETA 750 indicate that the petitioning couple will employ the 
beneficiary in Santa Monica, Califomia. 
In support of the petition counsel submitted the petitioning couple's joint 2000 and 2001 Form 1040 U.S. 
Individual Income Tax Returns. 
The petitioning couple's 2000 tax return shows that the couple declared adjusted gross income of $359,742 
during that year, and that they had three dependents. During that year the petitioning couple declared interest 
income of $1,014,378. 
The petitioning couple's 2001 tax return shows that the couple declared adjusted gross income of $1 10,856 
and that they had three dependents during that year. During that year the petitioning couple declared interest 
income of $979,946. 
On April 8, 2004 the California Service Center requested, inter alia, additional evidence pertinent to the 
petitioning couple's continuing ability to pay the proffered wage beginning on the priority date. The request 
specified that the evidence should be either copies of annual reports, federal tax returns, or audited financial 
statements. The service center also specifically requested that the petitioning couple provide a budget of their 
monthly expenses. Finally, the service center requested that, if the petitioning couple intended to rely on their 
assets to pay the proffered wage, they provide evidence pertinent to those assets. 
In response, counsel submitted (1) the petitioning couple's joint 2002 Form 1040 U.S. Individual Income Tax 
Return, (2) the petitioning couple's 2003 Form 4868 Application for Automatic Extension of Time to File 
U.S. Individual Income Tax Return, (3) the petitioning couple's budget and actual expenses for the period 
from January 1, through April 28, 2004, (4) the petitioning couple's budget for the entire 2004 calendar year, 
(5) confirmations of trades the petitioning couple placed with their broker, and (6) a letter dated June 29, 
2004. 
The petitioning couple's 2002 tax return shows that the petitioning couple declared a loss of $3 17,593 as their 
adjusted gross income during that year. During that year the petitioning couple had three dependents and 
declared interest income of $268,981. 
The 2003 Form 4868 shows that the petitioning couple applied for an extension of time during which to file 
that year's taxes. 
The January 1, through April 28, 2004 budget shows that during that period the petitioning couple budgeted 
$214,618.96 for total expenses and actually paid $145,393.68. 
The budget for the entire 2004 calendar year shows that during that year the petitioning couple spent 
$626,493.22 on household expenses. 
In the June 29, 2004 letter counsel states that the petitioning couple's loss during 2002 was occasioned by 
long-term carryover loss. Counsel also notes that the petitioning couple "earned $268,000 in taxable interest 
[during that year], which evidences a substantial level of assets." 
The director found that the evidence submitted did not establish that the petitioning couple had the continuing 
ability to pay the proffered wage beginning on the priority date and, on September 20, 2004, denied the 
petition. 
In a collateral matter, submission of the beneficiary's Form 1-485 Application to Adjust Status, the 
beneficiary's 1999, 2000, and 2001 personal tax returns were submitted with the corresponding Form W-2 
Wage and Tax Statements appended. Those W-2 forms show that the petitioning couple paid the beneficiary 
$15,500, $13,000, and $13,000 during 1999,2000, and 2001, respectively. 
Page 4 
On appeal, counsel reiterates the argument that the petitioning couple's 2002 loss sprang from carryover 
losses and that the petitioning couple's interest income evinces a large amount of principal at the petitioning 
couple's disposal. Counsel further argues that the petitioning couple's net current assets exceed the amount 
of the proffered wage and that the W-2 forms submitted show that they paid wages to the beneficiary. 
Counsel does not demonstrate that the petitioning couple has any net current assets. End-of-year net current 
assets are the taxpayer's end-of-year current assets less the taxpayer's end-of-year current liabilities. Current 
assets include cash on hand, inventories, and receivables expected to be converted to cash within one year. 
Current liabilities are liabilities due to be paid within a year. A corporation's year-end current assets and 
current liabilities are shown on its Schedule L. The term is not generally applicable to an individual or 
couple. 
In determining the petitioning couple's ability to pay the proffered wage during a given period, CIS will 
examine whether the petitioning couple employed the beneficiary during that period. If the petitioning couple 
establishes by documentary evidence that they employed the beneficiary at a salary equal to or greater than 
the proffered wage, the evidence will be considered prima facie proof of the petitioning couple's ability to 
pay the proffered wage. In the instant case, the petitioning couple established that they employed the 
beneficiary during 1999, 2000, and 2001 and paid her $15,500, $1 3,000, and $13,000 during those years, 
respectively. 
If the petitioning couple does not establish that they 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 petitioning couple'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 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), affd, 703 F.2d 571 (7th Cir. 1983). 
Showing that the petitioning couple's gross receipts exceeded 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 income tax 
returns, rather than the petitioner's gross income. 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 petitioning couple 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 petitioner, however, is a married couple. Analysis of an individual's or married couple's ability to pay the 
proffered wage is different from that pertinent to a corporation or other limited liability business entity. Because 
the petitioning couple is obliged to satisfy debts and obligations out of their own income and assets, the 
petitioning couple's income and assets are properly considered in the determination of the petitioning couple's 
ability to pay the proffered wage. The petitioning couple is obliged to demonstrate that they could have paid the 
proffered wage and still sustained themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 
1982), afld, 703 F.2d 571 (7" Cir. 1983). 
The proffered wage is $26,104 per year. The priority date is May 10, 2000. 
During 2000 the petitioning couple paid the beneficiary $15,500. The petitioning couple is only obliged to 
demonstrate the ability to pay the $10,604 balance of the proffered wage during that year. During that year 
the petitioning couple declared adjusted gross income of $359,742. That amount is sufficient to pay the 
balance of the proffered wage. The petitioning couple has demonstrated the ability to pay the proffered wage 
during 2000. 
During 2001 the petitioning couple paid the beneficiary $13,000. The petitioning couple is only obliged to 
demonstrate the ability to pay the $13,104 balance of the proffered wage during that year. During that year 
the petitioning couple declared adjusted gross income of $1 10,856. That amount is sufficient to pay the 
balance of the proffered wage. The petitioning couple has demonstrated the ability to pay the proffered wage 
during 200 1. 
During 2002 the petitioning couple declared a loss of $3 17,593. The petitioning couple is unable to show the 
ability to pay any portion of the proffered wage out of their income during that year.' 
Despite the petitioning couple's loss during 2002 counsel argues that the instant petition is approvable. He 
states that the petitioning couple's loss during that year was the result of carryover losses and that the amount 
of the petitioning couple's interest income during the salient years evinces considerable principal. During 
2000, 2001, and 2002 the petitioning couple declared interest income of $1,014,378, $979,946, and $268,981, 
respectively. 
Counsel argues that the petitioning couple's 2001 interest income, if the result of an interest rate of 5%, 
indicates principal of approximately $15 to $20 mi~lion.~ The petitioning couple may, of course, be earning a 
better return on their principal. If so, the amount of principle required to produce that annual interest income 
would be less. Even during 2002, however, when the petitioning couple had the least interest income, and 
even if they earned 15% on their principal the petitioning couple still had almost $1.8 million earning interest. 
Although the petitioning couple's adjusted gross income during 2002 does not, in itself, evince funds 
sufficient to pay the proffered wage of $26,104 annually, every other aspect of the tax returns and the other 
evidence submitted demonstrates that they can afford that amount. Pursuant to the principles enunciated in 
Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Cornrn. 1967) the petitioning couple has demonstrated the 
continuing ability to pay the proffered wage beginning on the priority date and the petition will be approved. 
Under these circumstances this office need not address whether counsel has sufficiently proven the assertion 
that the petitioning couple's losses during 2002 were the result of carryover losses from previous years or 
whether, in a different case, that would render the petition approvable. 
' Because counsel demonstrated that the petitioning couple's 2003 tax return was unavailable on the date of the request 
for evidence the petitioning couple is excused from providing evidence pertinent to that year or subsequent years. 
2 
 The principal required to produce that annual income at 5% would be almost $19.5 million. 
The petitioning couple has demonstrated their continuing ability to pay the proffered wage beginning on the 
priority date. 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 met that burden. 
ORDER: The appeal is sustained. The petition is approved.