sustained EB-3 Case: Information Technology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
identifying data deleted to 
 Urn S. Citizenship 
prevent clearly unwananted and Immigration 
invasion of p0na1 p"vac~ 
EAC 04 219 51929 
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. $ 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
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 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the preference visa petition that is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will be 
approved. 
The petitioner is an information and technology development firm. 
 It seeks to employ the beneficiary 
permanently in the United States as a programmer analyst. 
 As required by statute, Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor (DOL) 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. 
The record shows that the appeal was properly and timely filed and makes a specific allegation of error in law 
or fact. The procedural history of this case is documented in the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. As set forth in the director's 
decision of denial the sole issue in this case is whether or not the petitioner has demonstrated the continuing 
ability to pay the proffered wage beginning on the priority date. 
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. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3)(A)(ii), 
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
The regulation at 8 C.F.R. 9; 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 Application for Alien Employment Certification was accepted for processing 
by any office within the employment system of the DOL. See 8 C.F.R. 9;204.5(d). Here, the Form ETA 750 
was accepted for processing on November 20, 2002. The proffered wage as stated on the Form ETA 750 is 
$80,000 per year. 
The Form 1-140 petition in this matter was submitted on July 20, 2004. On the petition, the petitioner stated 
that it was established during 1993 and that it employs 80 workers. The petition states that the petitioner's 
gross annual income is "7 millions." The petitioner did not state its net annual income in the space provided. 
On the Form ETA 750, Part B, signed by the beneficiary on November 18,2002, the beneficiary did not claim 
to have worked for the petitioner. The petition and the Form ETA 750 both indicate that the petitioner would 
employ the beneficiary in Wilmington, Delaware. 
The AAO reviews de novo issues raised on appeal. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The AAO considers all evidence properly in the record including evidence properly submitted on appeal.' 
In the instant case the record contains the petitioner's 2002, 2003, and 2004 Form 1120s' U.S. Income Tax 
Returns for an S Corporation, and the petitioner's 2002 and 2003 compiled financial statements. The record 
does not contain any other evidence relevant to the petitioner's continuing ability to pay the proffered wage 
beginning on the priority date. 
The petitioner's tax returns show that it is a corporation, that it incorporated on December 5, 1993, and that it 
reports taxes pursuant to accrual convention accounting and the calendar year. 
During 2002 the petitioner reported a loss of $747,798 as its ordinary income. At the end of that year the 
petitioner had current assets of $1,860,697 and current liabilities of $1,061,834, which yields net current 
assets of $798,863. 
During 2003 the petitioner reported ordinary income of $58,402. At the end of that year the petitioner had 
current assets of $764,491 and current liabilities of $673,045, which yields net current assets of $91,446. 
During 2004 the petitioner reported ordinary income of $155,294. At the end of that year the petitioner had 
current assets of $1,022,309 and current liabilities of $499,841, which yields net current assets of $522,468. 
The director denied the petition on May 11, 2005. On appeal, counsel asserted that the petitioner's net 
income and net current assets during various years demonstrate its continuing ability to pay the proffered 
wage beginning on the priority date. 
The petitioner must establish that its job offer to the beneficiary is realistic. Because filing 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. 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 WaN, 16 I&N Dec 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. 
5 204.5(g)(2). In evaluating whether a job offer is realistic, Citizenship and Immigration Services (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. 6 12 (Reg. Comm. 1967). 
1 
The submission of additional evidence on appeal is allowed by the instructions to the Forrn I-290B, which 
are incorporated into the regulations at 8 C.F.R. 5 103.2(a)(l). The record in the instant case provides no 
reason to preclude consideration of any documents newly submitted on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988). 
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 did not establish that it employed and paid the beneficiary. 
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 
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, 7 19 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 57 1 (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 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 at 537. See also Elatos 
Restaurant, 623 F. Supp. at 1054. 
The petitioner's net income is not the only statistic that may be used to show the petitioner's ability to pay the 
proffered wage. If the petitioner's net income, if any, during a given period, added to the wages paid to the 
beneficiary during that period, if any, do not equal the amount of the proffered wage or more, the AAO will 
review 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 petitioner's total 
assets include those assets the petitioner uses in its business, which will not, in the ordinary course of 
business, be converted to cash, and will not, therefore, become funds available to pay the proffered wage. 
Only the petitioner's current assets -- the petitioner's year-end cash and those assets expected to be consumed 
or converted into cash within a year -- may be considered. Further, the petitioner's current assets cannot be 
viewed as available to pay wages without 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 liabilities, 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. Current 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. 
2 
 The location of the taxpayer's current assets and current liabilities varies slightly from one version of the 
Schedule L to another. 
The proffered wage is $80,000 per year. The priority date is November 20,2002. 
During 2002 the petitioner reported a loss. The petitioner is unable, therefore, to demonstrate the ability to 
pay any portion of the proffered wage out of its profit during that year. At the end of that year, however, the 
petitioner had net current assets of $798,863. That amount is sufficient to pay the proffered wage. The 
petitioner has demonstrated the ability to pay the proffered wage during 2002. 
During 2003 the petitioner reported ordinary income of $58,402. That amount is insufficient to pay the 
proffered wage. At the end of that year, however, the petitioner had net current assets of $92,446. That 
amount is sufficient to pay the proffered wage. The petitioner has demonstrated the ability to pay the 
proffered wage during 2003. 
During 2004 the petitioner reported ordinary income of $155,294. That amount is sufficient to pay the 
proffered wage. The petitioner has demonstrated the ability to pay the proffered wage during 2004. 
The petition in this matter was submitted on July 20, 2004. On that date the petitioner's 2005 tax return was 
unavailable. On November 2, 2004 the service center issued a request for evidence in this matter, requesting 
additional evidence of the petitioner's continuing ability to pay the proffered wage beginning on the priority 
date. On that date the petitioner's 2005 tax return was still unavailable. The petitioner is relieved of the 
burden of demonstrating its ability to pay the proffered wage during 2005 and later years. 
The petitioner has demonstrated the ability to pay the proffered wage during each of the salient years. The 
petitioner's argument pertinent to Matter of Sonegawa 12 I&N Dec. 612 (Reg. Comm. 1967) need not, 
therefore, be addressed. 
The sole basis for the decision of denial has been overcome. The burden of proof in these proceedings rests 
solely upon the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.