sustained EB-3 Case: Plumbing

PUBLIC COPY 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
'i3s 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Nebraska 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
sustained. The petition will be approved. 
The petitioner is a plumbing service. It seeks to employ the beneficiary permanently in the United States as a 
plumber. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification (labor certification or Form ETA 750), approved by the 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. 
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. 8 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 nature, for which qualified workers are not available in the United 
States. 
The regulation 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
~bilit~ 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 demonstratt 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. See 8 C.F.R. 5 
204.5(d). 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 ~ouse, 16 I&N Dec. 158 (Act. Reg. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 16, 2001. The proffered wage as stated on the Form ETA 
750 is $16.32 per hour ($33,945.60 per year). The Form ETA 750 states that the position requires two (2) 
years experience in the job offered. 
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. § 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). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the 
petition, the petitioner claimed to have been established in 1996, to have a gross annual income of $206,000, 
to have a net annual income of $21,000, and to currently employ four (4) workers. According to the tax 
returns in the record, the petitioner's fiscal year is based a calendar year. On the Form ETA 750B, signed by 
the beneficiary on April 2,2001, the beneficiary claimed to have worked for the petitioner since April 1999. 
With the petition, the petitioner submitted the following documents pertinent to its ability top ay the proffered 
wage from the priority date: Form 1120S, U.S. Income Tax Return for an S Corporation for 20002 through 
2002. 
The director denied the petition on February 28, 2005, determining that the evidence submitted did not 
establish that the petitioner has the ability to pay the full proffered wage of $33,945 in 2002 with its net 
income of $20,985 or net current assets of $12,026 that year. 
On appeal, counsel asserts that the director erred in assuming the beneficiary has not been employed and paid 
by the petitioner, and with wages actually paid to the beneficiary the petitioner established its ability to pay 
the proffered wage. 
Agreeing with counsel's assertion on appeal, Citizenship and Immigration Services (CIS) should first 
examine whether the petitioner employed and paid the beneficiary during a given period in determining the 
petitioner's ability to pay the proffered wage 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. On appeal counsel 
submits the beneficiary's Form W-2 Wage and Tax Statement for 2002, 2003 and 2004. These W-2 forms 
establish that the petitioner paid the beneficiary $25,360 in 2002, $33,684.63 in 2003 and $41,046 in 2003. 
The petitioner did not submit any documentary evidence of the beneficiary's compensation Erom the 
petitioner in 2001, the year of the priority date. The petitioner paid $8,585.60 less than the proffered wage in 
2002 and $260.97 less than the proffered wage in 2003. However, the petitioner established that it paid the 
beneficiary the full proffered wage in 2004. Therefore, the petitioner is obligated to demonstrate that it could 
pay the full proffered wage in 2001, the difference of $8,585.60 in 2002 and $260.97 in 2003 between the 
ages actually paid to the beneficiary and the proffered wage. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next 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. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's 
gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages 
in excess of the proffered wage is insufficient. 
2 
 The priority date in the instant case is April 16, 2001, therefore, the petitioner's tax return for 2000 is not 
necessarily dispositive in determining its ability to pay the proffered wage. 
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 the Service should have considered income before expenses were paid rather than net income. 
The court in 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. 
The petitioner's tax returns for 2001, 2002 and 2003 demonstrate the following financial information 
concerning the petitioner's ability to pay the proffered wage or difference between the wage already paid to 
the beneficiary and the proffered wage from the priority date. 
Wage difference 
Tax year Net income Need to pay Surplus or deficit 
Therefore, for the years 2002 through 2003, the petitioner did have sufficient net income to pay the difference 
between the wages actually paid to the beneficiary and the proffered wage while the petitioner had a deficit of 
$4,546.60 to pay the proffered wage with its net income in 2001. 
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. 
Ordinary income (loss) from trade or business activities as reported on Line 2 1 of Form 1 120s. 
4 
 The director erred in prorating the proffered wage for the portion of the year that occurred after the priority 
date for 2001. We do not consider 12 months of income towards an ability to pay a lesser period of the 
proffered wage any more than we would consider 24 months of income towards paying the annual proffered 
wage. While CIS will prorate the proffered wage if the record contains evidence of net income or payment of 
the beneficiary's wages specifically covering the portion of the year that occurred after the priority date (and 
only that period), such as monthly income statements or pay stubs, the petitioner has not submitted such 
evidence. 
Net current assets are the difference between the petitioner's current assets and current liabi~ities.~ 
 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 the, total of a corporation's end-of-year net current assets and 
the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. Schedule L attached to the 
petitioner's tax return for 2001 yields that the net current assets were $6,5 18. Therefore, the petitioner did not 
have sufficient net current_assets to cover the proffered wage in 2001. 
Counsel's argument concerning the overall financial condition of the petitioner, however, cannot be 
overlooked. Although CIS will not consider gross income without also considering the expenses that were 
incurred to generate that income, the overall magnitude of the entity's business activities.should be considered 
when the entity's ability to pay is marginal or borderline. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. 
Comm. 1967). In the instant case, the petitioner's net income was short $4,546.60 for the proffered wage in 
2001 without considering the possible wages already paid to the beneficiary in that year. 'The petitioner was 
established in 1996 and had been in business for 5 years at the time the Form ETA 750 was filed. The 
petitioner's gross income has always been above $200,000 and has a steady increase. The petitioner pays 
more than $75,000 in officer's compensation and wages every year in the relevant years. The petitioner has 
established its ability to pay the proffered wage for all other years with wages actually paid to the beneficiary 
and net income. The petitioner and the beneficiary claimed that the beneficiary has been working for the 
petitioner and been paid since April 1999. It is most likely that the beneficiary was paid more than $4,546.60 
in 2001 if the petitioner had submitted evidence for it. Thus, assessing the totality of circumstances in this 
individual case, it is concluded that the petitioner has proven its financial strength and viability and has the 
ability to pay the proffered wage. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner has established that it had the continuing ability to pay the beneficiary the difference between 
the wage paid and the proffered wage as of the priority date through an examination of its totality of 
circumstances. 
Counsel's assertions on appeal have overcome the director's finding in his decision to deny the petition. The 
evidence submitted establishes that the petitioner had the continuing ability to pay the proffered wage 
beginning on the priority date. 
The burden of proof in these proceedings rests solely with 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 1s approved. 
5 
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 118.