sustained EB-3 Case: Landscaping

identifying data &!deb ba 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Elomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC COPY - 
Bb 
FILE: -~ Office: VERMONT SERVICE CENTER Date: HAY 1 8 2006 
EAC 04 028 5 1825 
IN RE: 
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. 5 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. 
R be . Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a landscaping company. It seeks to employ the beneficiary permanently in the United States 
as a landscaping worker. 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. 
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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's October 21, 2004 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 lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. tj 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. tj 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. 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 tj 204.5(d). The priority date in the instant petition is April 
30, 2001. The proffered wage as stated on the Form ETA 750 is $12.88 per hour or $26,790.40 annually. 
The AAO takes a de novo look at issues raised in the denial of ths petition. See Dor v. INS, 891 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all pertinent 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
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). 
appeal includes copies of the petitioner's 2002 and 2003 Forms 1120S, U.S. Income Tax Returns for an S 
Corporation, a copy of the beneficiary's 2003 Form W-2, Wage and Tax Statement, a copy of the petitioner's 
2002 depreciation schedule, a copy of a non-precedent decision, a letter from the petitioner's accountant, a copy 
of the Interpreter Releases, Vol. 81, No. 29 - July 26, 2004, Pages 963-968, and copies of the petitioner's 2002 
and 2003 (through September 30, 2003) bank statements. Other relevant evidence in the record includes copies 
of the beneficiary's 2001 and 2002 Forms W-2 and a copy of the petitioner's 2001 Form 1120s. 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 taxable incomes before net operating loss deduction and 
special deductions or net income of $10,560, -$3,034, and $24,109, respectively. The petitioner's 2001 through 
2003 Forms 1120s also reflect net current assets of 439,569, -$52,703, and -$5 1,604, respectively. 
The beneficiary's 2001 through 2003 Forms W-2 issued by the petitioner reflect wages earned of $19,800, 
$1 8,600, and $1 8,600, respectively. 
The petitioner's 2002 through 2003 (through September 30,2003) bank statements reflect balances rangmg from 
a low of $1,469.00 to a high of $17,034.34. 
The accountant's letter states that "the Company's tax returns may reflect minimal taxable income and retained 
earnings for each of the three years, [however] ths does not represent an accurate account of the Company's 
financial condition" due to its tax reporting being on a hybrid cash basis of accounting. The accountant further 
states that the petitioner's revenues are recorded when received and expenses are recorded when actually paid; 
that its customer's receivables are not recorded as assets; that the company takes advantage of Section 179 
deductions for all qualified property purchased, resulting in a lower taxable income and a lower net worth; and 
that work in progress is not recorded resulting in an improper matching of revenue and expenses in a gven year, 
and since the asset is not recorded, a lower net worth will result. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $26,790.40 
based on its bank statements, its depreciation, and the wages paid to the beneficiary. Counsel cites a non- 
precedent decision and the Interpreter Releases, Vol. 81, No. 29 - July 26, 2004, Pages 963-968 in support of 
her claims. 
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 la*l 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 April 27, 2001, the beneficiary claims to 
Page 4 
have been employed by the petitioner from April 1998 until the present. In support of the petition, the 
petitioner submitted copies of the beneficiary's 2001 through 2003 Forms W-2 which reflect wages earned of 
$19,800 or $6,990.40 less than the proffered wage of $26,790.40 in 2001, $18,600 or $8,190.40 less than the 
proffered wage of $26,790.40 in 2002, and $18,600 or $8,190.40 less than the proffered wage of $26,790.40 
in 2003. The petitioner is obligated to establish that it has sufficient funds to pay the difference between the 
wages actually paid to the beneficiary and the proffered wage. 
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 COT. v. Sava, 632 F. Supp. 1049,1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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), 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 court 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 assets. 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 -$39,569, -$52,703, and 
-$5 1,604, respectively. As the net current assets were all negative in 2001 through 2003, the petitioner could 
not have paid the difference between the actual wages paid to the beneficiary and the proffered wage in those 
years fiom its net current assets. 
2 
 According to Barron 's Dictionary of Accounting Terms 1 17 (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 1 18. 
Counsel contends that the petitioner's depreciation expenses should be considered when determining the 
petitioner's ability to pay the proffered wage of $26,790.40. However, counsel's argument that the 
petitioner's depreciation deduction should be included in the calculation of its ability to pay the proffered 
wage is unconvincing. 
A depreciation deduction does not require or represent a specific cash expenditure during the year claimed. It 
is a systematic allocation of the cost of a tangible long-term asset. It may be taken to represent the diminution 
in value of buildings and equipment, or to represent the accumulation of funds necessary to replace perishable 
equipment and buildings. But the cost of equipment and buildings and the value lost as they deteriorate is an 
actual expense of doing business, whether it is spread over more years or concentrated into fewer. 
While the expense does not require or represent the current use of cash, neither is it available to pay wages. 
No precedent exists that would allow the petitioner to add its depreciation deduction to the amount available 
to pay the proffered wage. Chi-Feng Chang v. Thornburgh, 719 F.Supp. 532 (N.D. Texas 1989). See also 
Elatos Restaurant Corp. v. Suva, 632 F.Supp. 1049 (S.D.N.Y. 1985). The petitioner's election of accounting 
and depreciation methods accords a specific amount of depreciation expense to each given year. The 
petitioner may not now shift that expense to some other year as convenient to its present purpose, nor treat it 
as a fund available to pay the proffered wage. Further, amounts spent on long-term tangible assets are a real 
expense, however allocated. 
Counsel asserts that the petitioner's bank statements should be considered when CIS determines the 
petitioner's ability to pay the proffered wage and cites a non-precedent decision in support of her assertion. 
Counsel's reliance on the balances in the petitioner's bank accounts is misplaced. First, bank statements are 
not among the three types of evidence, enumerated in 8 C.F.R. $204.5(g)(2), required to illustrate a petitioner's 
ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases," the 
petitioner in ths case has not demonstrated why the documentation specified at 8 C.F.R. $ 204.5(g)(2) is 
inapplicable or otherwise 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 reflected on its tax return, such as the petitioner's taxable income 
(income minus deductions) or the cash specified on Schedule L that will be considered below in determining the 
petitioner's net current assets. In addition, while 8 C.F.R. 9 103.3(c) provides that precedent decisions of CIS are 
binding on all its employees in the administration of the Act, unpublished decisions are not similarly binding. 
Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 
$ 103.9(a). 
Counsel points to the accountant's letter in support of her contention that cwent assets did exceed current 
liabilities; and, therefore, CIS was in err in its interpretation of the petitioner's tax returns. The petitioner's tax 
returns were prepared pursuant to cash convention, in which revenue is recognized when it is received, and 
expenses are recognized when they are paid. This office would, in the alternative, have accepted tax returns 
prepared pursuant to accrual convention, if those were the tax returns the petitioner had actually submitted to 
IRS. 
Page 6 
This office is not, however, persuaded by an analysis in which the petitioner, or anyone on its behalf, seeks to 
rely on tax returns or financial statements prepared pursuant to one method, but then seeks to shift revenue or 
expenses from one year to another as convenient to the petitioner's present purpose. If revenues are not 
recognized in a given year pursuant to the cash accounting then the petitioner, whose taxes are prepared 
pursuant to cash rather than accrual, and who relies on its tax returns in order to show its ability to pay the 
proffered wage, may not use those revenues as evidence of its ability to pay the proffered wage during that 
year. Similarly, if expenses are recognized in a given year, the petitioner may not shift those expenses to 
some other year in an effort to show its ability to pay the proffered wage pursuant to some hybrid of accrual 
and cash accounting. The amounts shown on the petitioner's tax returns shall be considered as they were 
submitted to IRS, not as amended pursuant to the accountant's adjustments. If the accountant wished to 
persuade this office that accrual accounting supports the petitioners continuing ability to pay the proffered 
wage beginning on the priority date, then the accountant was obliged to prepare and submit audited financial 
statements pertinent to the petitioning business prepared according to generally accepted accounting 
principles. 
Counsel cites the Interpreter Releases with regard to statements made by William Yates, then Service Center 
Director, at an AILA conference, in support of her assertion that CIS has misinterpreted the underlying 
purpose behind the requirement of an employer demonstrating an ability to pay. Counsel quotes: 
". . . .the statutory requirement (of establishing the ability to pay) is to establish that it's a 
bona fide company. Ability to pay was actually meant, when it was first put into [the] 
regulations, to be a tool that officers apply, not a sword, if you will. So if you have a 
company that's been in business for years, there really is no question about the ability to 
pay or the bona fides of the company." 
In evaluating whether a job offer is realistic as of the priority date and that the offer remained realistic for each 
year thereafter, CIS requires the petitioner to demonstrate financial resources sufficient to pay the first year of the 
beneficiary's proffered wages and continuing until the beneficiary obtains lawful permanent residence, 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. Comrn. 1967). When adjudicating a petition, 
CIS must follow the clear language of the regulations, which may not be usurped by an interoffice guidance 
memorandum without binding legal effect. 
Finally, if the petitioner does not have sufficient net income or net current assets to pay the proffered salary, 
CIS may consider the overall magnitude of the entity's business activities. Even when the petitioner shows 
insufficient net income or net current assets, CIS may consider the totality of the circumstances concerning a 
petitioner's financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter 
of Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The district director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Page 7 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In the instant case, the petitioner has provided three tax retums. 
Two of these tax retums (2001 and 2003) demonstrate that the petitioner has the ability to pay the proffered 
wage. Since the petitioner has been in business for 23 years, there is no reason to doubt that the petitioner 
will not remain in business. Therefore, the petitioner has established that the job offer is bona fide based on 
the totality of the circumstances. 
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. 
For the reasons discussed above and the assertions of counsel on appeal, the evidence submitted on appeal 
overcomes the decision of the director. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has been met. 
ORDER: The appeal is sustained.