sustained EB-3 Case: Retail Management

11/n I . 
prevent ~le~ i'd ul:ii~ar.rali~a;td 
invasion of personal privacy 
PUBLIC COW 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W. Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. 9 1153@)(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 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office on appeal. The appeal will be sustained. 
The petitioner is a convenience store with gasoline service. It seeks to employ the beneficiary permanently in 
the United States as a manager. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the U. S. 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. 
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 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 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. 
The regulation at 8 CFR 5 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters fkom trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
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 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. 
9 204.5(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 House, 16 I&N Dec. 158 (Act. Reg. 
Comrn. 1977). 
Page 3 
Here, the Form ETA 750 was accepted on April 25, 2001.' The proffered wage as stated on the Form ETA 
750 is $36,650.00 per year. The Form ETA 750 states that the position requires two years experience. 
On appeal, counsel submits a legal brief and additional evidence. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal 
Revenue Service Form tax returns for 2001 and 2002. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. § 204.5(g)(2), the director requested on February 2, 2005, pertinent evidence of the petitioner's ability to 
pay the proffered wage beginning on the priority date. 
The director requested evidence in the form of copies of annual reports, U.S. federal tax returns for 2000, 2003 
and 2004, and, audited or reviewed financial statements for 2004, and, U.S. Employers Quarterly Federal Tax 
Form (Form-941) for 2004. 
The director also requested the petitioner provide copies of the beneficiary's W-3 Statement for 2004 for all of its 
three employees. 
In response to the request for evidence, counsel submitted an explanatory letter dated April 1, 2005. Counsel 
provided copies of the following documents: the petitioner's U.S. Internal Revenue Service (IRS) Form 1120s 
tax returns for years 2000 (as requested by the director), 2001,2002 and 2003. 
The director denied the petition on June 1, 2005, finding that the evidence submitted did not establish that the 
petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts that CIS " . . . incorrectly calculated the net current assets, . . . [utilizing the U.S. 
federal tax returns submitted] which clearly establish the Petitioner's ability to pay the proffered wage." 
Counsel has not submitted the any documents to accompany the appeal statement. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and 
Immigration Services (CIS) will first examine whether the petitioner employed and paid 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. No evidence was submitted to show that the petitioner 
employed the beneficiary. 
1 
 It has been approximately five years since the Alien Employment Application has been accepted and the 
proffered wage established. According to the employer certification that is part of the application, ETA Form 
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the 
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins 
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work." 
Page 4 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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), afd, 703 
F.2d 57 1 (7th Cir. 1983). In K. C. P. Food Co., Inc. v. Sava, the court held that the Service 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. Id. at 1084. 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 at 537. 
The tax returns2 demonstrated the following financial information concerning the petitioner's ability to pay 
the proffered wage of $36,650.00 per year from the priority date of April 25,2001: 
In 200 1, the Form 1 120s stated taxable income3 of $7,273.00. 
In 2002, the Form 1120s stated taxable income of $8,855.00. 
In 2003, the Form 1120s stated taxable income of $28,536.00. 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage at any time between the years 2001 through 2003 for which the petitioner's tax returns 
are offered for evidence. 
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. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120s federal tax return. The petitioner's 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. 
Examining the Form 1120s U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each 
of those returns indicates the following: 
In 2001, petitioner's Form 1 120s return stated current assets of $84,616.00 and $24,13 8.00 in 
current liabilities. Therefore, the petitioner had $60,478.00 in net current assets. Since the 
proffered wage is $36,650.00 per year, this sum is more than the proffered wage. 
2 
 Tax returns submitted for years prior to the priority date, have little probative value to show the ability to 
pay the proffered wage. The petitioner's tax return for 2000 stated taxable income of $34,592.00. 
IRS Form 1120S, Line 21. 
4 
 According to Barron 's Dictionary of Accounting Terms 1 17 (3'* 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
Page 5 
In 2002, petitioner's Form 1120s return stated current assets of $1 19,247.00 and $29,528.00 
in current liabilities. Therefore, the petitioner had $89,719.00 in net current assets. Since the 
proffered wage is $36,650.00 per year, this sum is more than the proffered wage. 
In 2003, petitioner's Form 1120s return stated current assets of $1 10,572.00 and $17,146.00 
in current liabilities. Therefore, the petitioner had $93,426.00 in net current assets. Since the 
proffered wage is $36,650.00 per year, this sum is more than the proffered wage. 
Therefore, for the period 2001 through 2003 from the date the Form ETA 750 was accepted for processing by 
the U. S. Department of Labor, the petitioner had established that it had the ability to pay the beneficiary the 
proffered wage at the time of filing through an examination of its net current assets. 
The evidence submitted does establish that the petitioner had the continuing ability to pay the proffered wage 
beginning on the priority date. 
The petitioner has demonstrated its ability to pay the proffered wage the evidence presented in the corporate 
tax returns from the day the Form ETA 750 was accepted for processing by any office within the employment 
system of the Department of Labor. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.