sustained EB-3 Case: Roofing

~dentlfying data deleted to 
prevent ddy unwarranted 
invPsion dpcrsooel pdvacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services b& 
FEE: LIN-04-125-53955 Office: NEBRASKA SERVICE CENTER Date: 
 MAY 1 0 2006 
rN RE: Petitioner: 
Beneficiary: 
PETITION: 
 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. 5 1153(b)(3) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
~Abert P. Wiemann, Chief 
Administrative Appeals Office 
LIN-04-125-53955 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a roofing-waterproof firm. It seeks to employ the beneficiary permanently in the United 
States as an electrical design engineer. 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 December 30, 2004 denial, the single issue in this 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 Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
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 either 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 profifloss 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 petition's 
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 C.F.R. 5 204.5(d). The priority date in the instant 
petition is September 24, 2001. The proffered wage as stated on the Form ETA 750 is $23.40 per hour, which 
amounts to $48,672.00 annually.' 
1 
 The proffered wage, as calculated, is based on the assumption that the beneficiary is employed for 40 hours per week 
and for 52 weeks. No evidence in the record contradicts this assumption, and the Form ETA 750 corroborates that the 
beneficiary is to be employed for 40 hours per week. Thus, the director erred in stating that the proffered wage is 
LIN-04- 125-53955 
Page 3 
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 pertinent 
evidence in the record, including new evidence properly submitted upon appeaL2 Relevant evidence submitted on 
appeal includes copies of the petitioner's Form 1120 U.S. Corporation Income Tax Returns for 2000 and 2001.~ 
Other relevant evidence in the record includes a copy of the petitioner's Form 1120 U.S. Corporation Income Tax 
Return for 2002. The record does not contain any other evidence relevant to the petitioner's ability to pay the 
wage. 
The petitioner states on appeal that it has the ability to pay the proffered wage based on a correct analysis of its 
tax returns, its assets, its profitability, the fact that it paid salaries and wages, the fact that the beneficiary was 
already working for the petitioner at the time of the labor certification, and the fact that the petitioner would not 
have offered a job to the beneficiary without the ability to pay.4 
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 obtiins 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. Cornrn. 1977). See also 8 C.F.R. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial resources sufficient 
approximately $50,672.00. 
 The petitioner also erred in stating that the proffered wage is $44,928.00 because the 
petitioner's calculation is based on the assumption that the beneficiary is to be employed for 48 weeks per year. 
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). 
According to the record, the petitioner submitted a copy of its Form 1120 U.S. Corporation Income Tax Return for 
2002 on April 29, 2004. In a request for evidence (RFE) dated May 14, 2004, the director specifically requested the 
petitioner's federal tax returns for 2001, 2002, 2003. In response to the RFE, the petitioner stated that the director has 
the petitioner's federal tax returns for 2001, 2002, and 2003 because they were already submitted, and it submitted its 
federal tax return for 2002 again. On appeal, the petitioner submits copies of its federal tax returns for 2000,2001, and 
2002. The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The failure 
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(14). As in the present matter, where a petitioner has been put on notice of a deficiency in the evidence and 
has been given an opportunity to respond to that deficiency, the AAO generally will not accept evidence offered for the 
first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofobaigbena, 19 I&N Dec. 533 (BIA 
1988). If the petitioner had wanted its federal tax returns for 2000 and 2001 to be considered, it should have submitted 
the document in response to the director's request for evidence. Id. However, the AAO will exercise its discretion and 
accept the petitioner's Form 1120 U.S. Corporation Income Tax Returns for 2000 and 2001 because the petitioner 
appears to believe that it already submitted the requested evidence earlier. The AAO will not preclude consideration of 
the petitioner's federal tax returns for 2000 and 2001. 
' The record contains a Form G-28 Notice of Entry of Appearance as Attorney or Representative, and is 
listed as a law school graduate acting as the petitioner's representative. According to 8 C.F.R. 5 292.1(1)(2)(iii), (iv), a 
law graduate not yet admitted to the bar may be a representative where "he or she has filed a statement that he or she is 
appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing 
without direct or indirect remuneration from the alien he or she re resents," and his or her "appearance is permitted by 
the official before whom he or she wishes to appear." 
P 
as not filed the above-mentioned statement, and the 
AAO does not ~ermit law graduates to act as counse s. 
 us. t e AAO will treat the ~etitioner in this case as self- 
represented and brief will be treated as the brief. 
LIN-04-125-53955 
Page 4 
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 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 July 3,2001, the beneficiary did not claim to 
have worked for the petitioner. 
The petitioner states on appeal that "[tlhe alien was already working for the employer at the time that the labor 
certification was filed and was able to meet the [alien's] salary at that time, this fact is important and demonstrates 
the ability to pay." The petitioner points to its Form 1120 U.S. Corporation Income Tax Return for 2002 and 
states that the beneficiary's wage is included in the amount listed as salaries and wages. 
Evidence that CIS will look at in determining whether the petitioner paid the beneficiary includes Form W- 
2's, Form 1099's, or other evidence of compensation from the petitioner. The petitioner's statement alone, 
without supporting documentary evidence, is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of SofSici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In addition, the petitioner's statement seems to contradict 
the information on the Form ETA 750B that the beneficiary was not working for the petitioner at the time of 
the Form ETA 750 was filed, and Matter of Ho, 19 I&N Dec. 582,591-592 (BIA 1988) states: 
It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective 
evidence pointing to where the truth, in fact, lies, will not suffice. 
Even if the beneficiary was in fact employed by the petitioner, the record does not indicate the exact amount the 
beneficiary received in wages. 
As another 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 for a given year, 
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), affd., 703 F.2d 571 (7" Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service 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 Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a corporation. The record contains copies of the petitioner's Form 
1120 U.S. Corporation Income Tax Returns for 2000, 2001, and 2002. The record before the director closed on 
July 19, 2004 with the receipt by the director of the petitioner's submissions in response to the request for 
LIN-04-125-53955 
Page 5 
evidence (RFE). As of that date the petitioner's federal tax retum for 2004 was not yet due. Therefore the 
petitioner's tax return for 2003 is the most recent retum available. A close look of the petitioner's tax returns 
reveals that they are based on fiscal years lasting from November 1 to October 31. Thus, the petitioner's Form 
1120 U.S. Corporation Income Tax Return for 2000 is for fiscal year 2001, its Form 1120 for 2001 is for fiscal 
year 2002, and its Form 1120 for 2002 is for fiscal year 2003. 
For a corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of the Form 1120 U.S. Corporation Income Tax Return, or the 
equivalent figure on line 24 of the Form 1120-A U.S. Corporation Short Form Tax Return. The petitioner's tax 
returns show the amounts for taxable income on line 28 as shown in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001,2002, and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, CIS may review the 
petitioner's net current assets. Net current assets are a corporate taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. If a corporation's 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 net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield the amounts for net 
current assets as shown in the following table. 
Tax Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
LIN-04-125-5395s 
Page 6 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001,2002, and 2003. 
The above information is sufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
The petitioner states that the director "made obvious mistakes, confused the employer's ID [nlumber [on the tax 
return for fiscal year 20031 with the preparer's EIN [number]." The director did err in stating that the petitioner's 
ID number is 91-1415469. However, this error is immaterial to the petitioner's ability to pay the proffered wage. 
The petitioner states that the director erred in only looking at one number on the tax return. The director, in his 
decision, looked at the petitioner's net income loss, cash on hand, inventory, other current assets, accounts 
payable, mortgages, notes, bonds payable, and other current liabilities. Thus, the petitioner's statement is without 
merit. 
The petitioner states that "the net income test is not applicable, it is an onerous one, particularly given the 
propensity of most businesses to try to minimize net income for tax purposes." As stated above, 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 Woodcrafi 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), affd., 703 F.2d 571 (7" Cir. 1983). In K.C.P. Food 
Co., Inc., the court specifically 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. 623 F. Supp. at 1084. 
The petitioner calculates the amount of money it has by combining gross receipts of sales, total assets, inventory, 
cash, and retained earnings. The AAO does not look at the figure for gross receipts of sales because that figure 
does not take liabilities into consideration. The AAO does not look at total assets because 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. 
The AAO also does not look at retained earnings because retained earnings are the total of a company's net 
earnings since its inception, minus any payments to its stockholders. That is, this year's retained earnings are 
last year's retained earnings plus this year's net income. Adding retained earnings to net income and/or net 
current assets is therefore duplicative. Therefore, the AAO looks at each particular year's net income, rather 
than the cumulative total of the previous years' net incomes represented by the line item of retained earnings. 
The AAO does look at the petitioner's inventory and cash when it calculates the petitioner's net current assets. 
However, the AAO will not consider the petitioner's inventory and cash without also considering the petitioner's 
liabilities. In addition, the petitioner seems to advocate combining inventory and cash, as listed under its current 
assets, with the petitioner's income, and this is unacceptable. The AAO views net income and net current assets 
as two different ways of methods of demonstrating the petitioner's ability to pay the wage--one retrospective 
and one prospective. Net income is retrospective in nature because it represents the sum of income remaining 
LIN-04-125-53955 
Page 7 
after all expenses were paid over the course of the previous tax year. Conversely, the net current assets figure 
is a prospective "snapshot" of the net total of petitioner's assets that will become cash within a relatively short 
period of time minus those expenses that will come due within that same period of time. Thus, the petitioner 
is expected to receive roughly one-twelfth of its net current assets during each month of the coming year. 
Given that net income is retrospective and net current assets are prospective in nature, the AAO does not 
agree with the petitioner that the two figures can be combined in a meaningful way to illustrate the petitioner's 
ability to pay the proffered wage during a single tax year. Moreover, combining the net income and net 
current assets could double-count certain figures, such as cash on hand and, in the case of a taxpayer such as 
the petitioner who reports taxes pursuant to the accrual convention, accounts receivable. 
The petitioner states that "[tlhe net income loss of $215,720.00 was deducted from the petitioner's cash on hand 
by mistake." The AAO examines the petitioner's net income, and in the alternative the petitioner's net current 
assets, which includes cash on hand, in determining whether the petitioner has the ability to pay the proffered 
wage. Thus, the director should not have combined the petitioner's net income with other incomes listed as the 
petitioner's current assets. 
The petitioner states that the director "erroneously offsets the liabilities with the current assets, alleging that the 
current liabilities offset most of the current assets." As stated above, CIS looks to a corporation's current assets 
and current liabilities to determine the corporation's net current assets, and if a corporation's 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. Thus, CIS will not look at the petitioner's current assets without also 
looking at its current liabilities. 
The petitioner states that it "DISPOSED of important assets, money, income, things of value . . . that demonstrate 
that [it] has [the] ability to pay the minor salary." The AAO is unclear whether the petitioner is referring to assets 
listed in the petitioner's tax returns or other assets not documented in the record. If it is assets listed in the tax 
returns, the AAO has considered all relevant figures, as shown above. If it is assets not documented in the record, 
the assertions of the petitioner alone do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The petitioner states that "the petitioner is a millionaire," "he is absolute owner of a huge asset," and "the 
petitioner's business is profitable." It is unclear whether the petitioner is referring to its owner or to the 
petitioning corporation. If the petitioner is referring to the petitioning corporation, statements alone are 
insufficient to show ability to pay. Instead, the AAO, as it did above, examines the evidence in the record to 
determine whether the petitioner has the ability to pay. If the petitioner is referring to its owner, CIS may not 
"pierce the corporate veil" and look to the assets of the corporation's owner to satisfy the corporation's ability 
to pay the proffered wage. It is an elementary rule that a corporation is a separate and distinct legal entity 
from its owners and shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite 
Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. 
Comm. 1980). Consequently, assets of its shareholders or of other enterprises or corporations cannot be 
considered in determining the petitioning corporation's ability to pay the proffered wage. 
The petitioner states that "[tlhe petitioner is owner, has a fee simple absolute, he has the largest estate recognized 
by law." Again, if the petitioner is referring to the petitioning corporation's estate, documentary evidence is 
needed for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 
165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972)). If 
the petitioner is referring to the petitioner's owner, then the AAO, as stated above, will not "pierce the 
corporate veil." 
LIN-04-125-53955 
Page 8 
The petitioner states that "[ilt is obvious that the petitioner does not offer a position to an alien or any other 
employee without the ability to meet the salary." Noting in the record supports this statement, and going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
After a review of the federal tax returns, 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, the evidence submitted on appeal has overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has met that burden. 
ORDER: The appeal is sustained.