sustained EB-3 Case: Manufacturing

identifying data deleted to 
prevent clearly i.: ni-darrantee 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
 SRC 07 010 5 1850 Office: TEXAS SERVICE CENTER Date: 
 4UG QS ?qfJT 
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. 8 11 53(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. 
Robert P. Wiemann, ~hiey 
Administrative Appeals Office 
SRC07010 51850 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a furniture manufacturer. It seeks to employ the beneficiary permanently in the United 
States as a maintenance machine repairer. As required by statute, a Form ETA 9089, Application for 
Permanent 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 
proffered wage fi-om the priority date. The director 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 ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original December 7, 2006 denial, the issue in ths case is whether or not the 
petitioner has the beneficiary meets the experience requirements of the labor certification. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 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. $ 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 9089 was accepted for processing by any office within the employment 
system of the Department of Labor. See 8 CFR 204.5(d). The priority date in the instant petition is July 14, 
2006. The proffered wage as stated on the Form ETA 9089 is $38,314.00 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 pertment 
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. 5 103.2(a)(l). The record in the instant case 
SRC07 010 51850 
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appeal includes counsel's brief and copies of the petitioner's bank statements for the period January 2005 through 
November 2006. Other relevant evidence includes copies of the petitioner's 2003 through 2005 Forms 1120, 
U.S. Corporation Income Tax Returns, copies of the beneficiary's 2006 pay stubs up to October 28, 2006, and a 
copy of a 2005 Forrn W-2, Wage and Tax Statement, issued by the petitioner for the beneficiary. The record does 
not contain any other evidence relevant to the petitioner's ability to pay the proffered wage. 
The petitioner's 2003 through 2005 Forms 1120 reflect taxable incomes before net operating loss deduction 
and special deductions or net incomes of $23,478, $12,103, and $18,548, respectively. The petitioner's 2003 
through 2005 Forms 1 120 also reflect net current assets of -$189,46 1, -$142,403, and -$19,082, respectively. 
The beneficiary's 2005 Form W-2 reflects wages earned by the beneficiary as an employee of the petitioner of 
$16,704 in 2005. 
The beneficiary's 2006 pay stubs reflect wages earned by the beneficiary as an employee of the petitioner of 
$24,937.50 as of October 28, 2006. 
On appeal, counsel contends that the petitioner has established its ability to pay the proffered wage of $38,3 14 
based on its net income, the wages paid to the beneficiary, its checlung account balances, and depreciation. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 9089 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 9089, 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 lawful 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. 9 204.5(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. Cornrn. 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 consideredprima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 9089, Part K, unsigned by the beneficiary, the beneficiary claims to have been 
employed by the petitioner from February 1, 2000 to the present. However, the petitioner has only submitted 
the beneficiary's 2005 Form W-2 and 2006 pay stubs as of October 28, 2006 to corroborate the beneficiary's 
claim. Therefore, the petitioner has established that it employed the beneficiary in 2005 and part of 2006. 
The petitioner is obligated to show that it has sufficient funds to pay the difference between the proffered 
wage of $38'3 14 and the actual wages paid to the beneficiary in the pertinent years (2005~ and 2006). Those 
differences would have been $2 1,610 in 2005 and $7,976.50) in 2006, respectively. 
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). 
Please note that although the priority date is July 14,2006, the petitioner's 2006 tax return would have been 
unavailable at the time the visa petition and the appeal were filed with CIS. Therefore, the 2005 tax return is 
SRC07 010 51850 
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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 Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraff Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 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), aff'd., 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 Corp., 632 F. Supp. at 1054. Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income Jigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537. 
For a "C" corporation, CIS considers net income to be the figure shown on line 28 of the petitioner's Form 
1120, U.S. Corporation Income Tax Return. The petitioner's tax returns demonstrate that its net incomes in 
2003 through 2005 were $23,478, $12,103; and $1 8,548, respectively. The petitioner could not have paid the 
difference of $21,610 between the proffered wage of $38,314 and the actual wages of $16,704 paid to the 
beneficiary in 2005 out of its net income. Since the petitioner's 2006 tax return was unavailable when the 
visa petition was filed, the AAO is unable to determine if the petitioner had sufficient funds to pay the 
difference of $7,976.50 between the proffered wage of $38,3 14 and the estimated wages of $30,337.50 paid 
to the beneficiary in 2006. 
the appropriate tax return to use when determining the petitioner's continuing ability to pay the proffered 
wage of $38,3 14 fiom the priority date. 
This figure was anived at by determining that as of October 28, 2006, there were approximately nine weeks or 
360 hours left in the year 2006. As the petitioner was paying the beneficiary $600 per week or $1 5 per hour, the 
remaining nine weeks would have culminated in the beneficiary earning an additional $5,400 in the year 2006. 
By adding the $5,400 to the $24,937.50 already earned by the beneficiary as of October 28, 2006, the total 
estimated wages of the beneficiary in 2006 would have been $30,337.50. Those wages subtracted from the 
proffered wage of $38'3 14 equals the difference of $7,976.50. 
4 
Please note that the 2003 and 2004 income tax returns are before the priority date of the visa petition, July 14, 
2006; and, therefore, are of limited evidentiary value in determining the petitioner's continuing ability to pay the 
proffered wage of $38,314 fiom the priority date. Consequently, they will not be considered when determining 
the petitioner's ability to pay the proffered wage except when talung into account the totality of the circumstances 
affecting the petitioning business. 
SRC 07 010 51850 
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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 liabilities.' 
 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 2005 were -$19,082. The petitioner could not have paid 
the difference of $2 1,6 10 between the proffered wage of $3 8,3 14 and the actual wages of $16,704 paid to the 
beneficiary fiom its net current assets in 2005. In addition, since the petitioner's 2006 tax return was 
unavailable when the visa petition was filed, the AAO is unable to determine if the petitioner had sufficient 
funds to pay the difference of $7,976.50 between the proffered wage of $38,3 14 and the estimated wages of 
$30,337.50 paid to the beneficiary in 2006. 
On appeal, counsel contends that the petitioner has established its ability to pay the proffered wage of $38,3 14 
based on its net income, the wages paid to the beneficiary, its checking account balances, and depreciation. 
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. Sava, 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. 
5 
According to Barron S Dictionary of Accounting Terms 117 (3d 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. 
SRC07010 51850 
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In addition, counsel's reliance on the balances in the petitioner's bank account is misplaced. First, bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. 4 204.5(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. Thlrd, 
no evidence was submitted to demonstrate that the hnds 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. 
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 
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 this case, in light of the petitioner's long and continuing 
business presence (more than 31 years), since the petitioner has shown that it has paid total wages to 
employees and subcontractors between $249,308 and $274,066 yearly, since the petitioner's gross receipts 
have consistently been above $1,200,000 each year, and since the proffered wage obligation after 
consideration of compensation already paid in the significant years is meager when compared to the 
petitioner's continuous earnings of over approximately $1.2 million yearly, the AAO finds that the petitioner 
could pay the proffered wage in 2006 and continuing to the present. 
In examining a petitioner's ability to pay the proffered wage, the fbndamental focus of the CIS7 determination 
is whether the employer is making a realistic job offer and has the overall financial ability to satisfy the 
proffered wage. Matter of Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Comm. 1977). Accordingly, after 
a review of the petitioner's federal tax returns and all other relevant evidence, we conclude that the petitioner 
has established that it had the ability to pay the salary offered as of the priority date of the petition and 
continuing to present. 
SRC 07 010 51850 
Page 7 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal 
overcome the decision of the director. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 4 1361. Here, that burden has been met. 
ORDER: 
 The appeal is sustained. The director's decision of December 7, 2006 is withdrawn, and the 
petition is approved.