sustained EB-3 Case: Retail Management

identifying data deleted to 
prevat dearly unwmted 
invasion of p~d piMcy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W ., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
%G 
FILE: EAC 04 145 50738 Office: VERMONT SERVICE CENTER Date: N(K( 0 6 2006 
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. fj 1 153(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 
EAC 04 145 50738 
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 and the 
petition will be approved. 
The petitioner is a meat and food market. It seeks to employ the beneficiary permanently in the United States 
as a retail store 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 (DOL). 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. Therefore, the director 
denied the petition. 
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 the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's October 29,2004 denial, the single issue in this case is whether 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 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. 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, which is the date the Form ETA 750 is accepted for processing by any office within the employment 
system of the DOL. See 8 CFR fj 204.5(d). The petitioner must also demonstrate that, on the priority date, the 
beneficiary had the qualifications stated on its Form ETA 750 as certified by the DOL and submitted with the 
petition. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $24.14 per hour, 40 hours per week or $50,211.20 annually. The Form ETA 750 states that the 
position requires two years of experience in the proffered position and completion of high school. 
The AAO takes a de novo look at issues raised in the denial of this 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 
EAC 04 145 50738 
Page 3 
pertinent evidence in the record, including new evidence properly submitted on appeal.' Relevant evidence in 
the record includes: the petitioner's Form 1120S, U.S. Income Tax Return for an S Corporation, for the years 
2001, 2002 and 2003; and a copy of a portion of the petitioner's 2004 payroll record. The record does not 
contain any other evidence relevant to the petitioner's ability to pay the wage. 
The record shows that the petitioner is structured as an S corporation. On the petition, the petitioner claimed 
that it was established in 1994. The petition does not state the number of workers currently employed by the 
petitioner. According to the tax returns in the record, the petitioner's fiscal year coincides with the calendar 
year. On the revised Form ETA 750B, which was signed by the substituted beneficiary on April 8, 2004, the 
beneficiary did not claim to have worked for the petitioner. It is noted that a Form 1-140, Immigrant Petition 
for Alien Worker, filed for a substituted beneficiary retains the same priority date as the original Form ETA 
750. See Memorandum from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization 
Service, to Regional Directors, et al., Immigration and Naturalization Service, Substitution of Labor 
Certification Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fdfm96/fm28-96a.pdf (March 7, 1996). 
On appeal, the petitioner asserts that its tax returns demonstrate its ability to pay the proffered wage. The 
petitioner also indicates that the beneficiary will replace one of its employees who must quit because of ill 
health. In addition, the petitioner asserts that CIS should look to the fact that the petitioner has been able to 
pay all of its employees since it was established in 1994 and should find that the petitioner has demonstrated 
its ability to pay the beneficiary the proffered wage. The petitioner submits copies of its payroll records for a 
portion of 2004 to support its claim that it is able to pay its employees. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of the Form 
ETA 750 establishes a priority date for any immigrant petition later based on that Form 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 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. 8 204.5(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. 612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, 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. In this 
case, the petitioner has not established that it employed and paid the beneficiary the full proffered wage 
during any relevant timeframe from the priority date through the present. 
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 
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. 4 103.2(a)(l). The record in this 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). 
EAC 04 145 50738 
Page 4 
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, documenting that the wages which the 
petitioner paid overall were more than the proffered wage is not sufficient, contrary to the petitioner's 
assertions. 
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 figures 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 tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered annual wage of $50,211.20 from the priority date: 
In 2001, the Form 1120s states a net income2 of $7,968. 
In 2002, the Form 1120s states a net income of $2,110. 
In 2003, the Form 1120s states a net income of $24,609. 
Therefore, for the years 2001, 2002 and 2003, the petitioner did not have sufficient net income to pay the 
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 may not, therefore, be considered funds available to pay the proffered wage. Also the 
petitioner's liabilities must be subtracted fiom the petitioner's total assets, when analyzing the petitioner's 
ability to pay the proffered wage, contrary to the petitioner's assertions. Thus, 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 
2 
Ordinary income (loss) from trade or business activities as reported on Line 21 of the Form 1120s. 
EAC 04 145 50738 
Page 5 
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. 
The petitioner's net current assets during 2001 were $26,777. 
The petitioner's net current assets during 2002 were $66,788. 
The petitioner's net current assets during 2003 were $82,359. 
Thus, for the year 200 1, the petitioner did not have sufficient net current assets to pay the proffered wage. For 
the years 2002 and 2003, the petitioner did have sufficient net current assets to pay the proffered wage. 
In sum, the petitioner has not established through wages paid to the beneficiary, net income, or net current 
assets that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date and 
through subsequent years. 
In the alternative, where a petitioner has not demonstrated sufficient net income or personal assets to pay the 
proffered salary from the priority date onwards, CIS may consider the overall magnitude of the entity's 
business activities and the totality of the circumstances concerning a petitioner's financial performance, when 
determining its ability to pay the proffered wage, particularly where the petitioner's ability to pay is marginal 
or borderline. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In this instance, the petitioner 
has already demonstrated the ability to pay the proffered wage in two of the three years in the relevant period 
of analysis. The record indicates: that the petitioner regularly grosses over $1,000,000 annually; it employs 
five full-time workers and one part-time worker; and it compensates its officers between approximately 
$55,000 and $65,000 each year, in addition to paying combined annual wages as high as $1 13,000. It has 
demonstrated the financial strength needed to remain in business for over twelve years and to continue as a 
financially sound enterprise. Thus, assessing the totality of the circumstances in this individual case, it is 
concluded that the petitioner has proven its financial strength and viability and that it has the ability to pay the 
proffered wage. 
It is noted that any suggestion that the petitioner will have the beneficiary replace an employee who currently 
holds the proffered position and who is leaving because of ill health, and that accordingly this employee's 
salary may be seen as funds available to pay the proffered wage is misplaced. The petitioner failed to provide 
any Form W-2, Wage and Tax Statement, or other documentation to identify the employee who is terminating 
or to verify what salary the petitioner paid this other employee from the priority date onwards. Also, there is 
no notarized, sworn statement from the petitioner in the record which attests to the claim that the beneficiary 
will replace this employee. In addition, there is no evidence in the record that this employee performed the 
duties of the proffered position. Moreover, according to the Form 1-140 at part 6, the proffered position is a 
new position, not a position which the petitioner has already e~tablished.~ There is no documentation in the 
record to refute this. Going on record without supporting documentary evidence is not sufficient for purposes 
3~ccording to Barron's Dictionary of Accounting Terms 117 (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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
4 
 The petitioner concedes in his statement submitted on appeal that he indicated on the Form 1-140 that the 
proffered position represented a new position rather than an established position within its business.