The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Construction and Design Company, Myroslav Posatskyy, and Jan Ozlanski filed suit against the United States Bureau of Citizenship and Immigration Services ("BCIS") under the Administrative Procedure Act, 5 U.S.C. § 706, seeking to overturn BCIS's decision to deny Construction and Design Company's petition for a visa for its employee, Myroslav Posatskyy, and BCIS's decision to deny R.G. Construction's petition for a visa for its former employee, Jan Ozlanski.*fn1 This matter is before the Court on cross motions for summary judgment, filed by Plaintiffs on September 6, 2007  and by Defendant on November 15, 2007 . For the following reasons, the Court denies Plaintiffs' motion and grants Defendant's cross motion.
Plaintiffs, a local construction company and two construction employees seeking permanent residence, filed this lawsuit claiming that visa petitions filed on behalf of the two employees were improperly denied by BCIS. Construction and Design Company ("CDC") sought to employ Myroslav Posatskyy as a finish carpenter, and R.G. Construction Company ("RG") sought to employ Jan Ozlanski as a custom woodworker. Both companies classified the employees as "skilled workers" for which qualified workers are not available in the United States. 8 U.S.C. § 1153(b)(3)(A)(I). The visa petition process for skilled workers involves a number of steps. The Immigration and Nationality Act, 8 U.S.C. § 1182(a)(5), forbids an alien from entering the United States "for the purpose of performing skilled or unskilled labor" unless the Department of Labor certifies that there is a shortage of American workers able and willing to perform the labor in question and that employing an alien to perform such labor will not harm American workers. Thus, a petitioning employer must obtain certification from the Department of Labor establishing that the employment of the alien will not adversely affect similarly employed American workers. 8 U.S.C. § 1182(a)(5)(A).
Once the certification has been obtained, the employer must file a visa petition on behalf of the employee with BCIS. In order to secure BCIS's approval of the visa petition, the employer must establish that it has the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The regulation at 8 C.F.R. § 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 profit/loss statements, bank account records, or personnel records, may be submitted by the petitioner or requested by the Service.
BCIS denied the visa applications of Jan Ozlanski and Myroslav Posatskyy because it determined that R.G. Construction and CDC did not have the continuing ability to pay Ozlanski and Posatskyy the proffered wage beginning on the priority dates of the visa petitions.
Jan Ozlanski is a citizen of Poland and a custom woodworker. On March 23, 2001, R.G. Construction Company, Ozlanski's former employer, filed a labor certification application on his behalf with the Department of Labor. The rate of pay shown on the application was $28.00/hour. The Department of Labor approved Ozlanski's labor certification on December 19, 2002.
R.G. Construction then filed a visa petition on March 13, 2003. According to the petition, R.G. Construction was established in 1984, had a gross annual income of $530,227, and employed twelve workers. Ozlanski's proffered wage once again was $28.00/hour (which amounts to $58,240 per year based on a forty-hour work week over fifty-two weeks). In support of its obligation to demonstrate a continuing ability to pay Ozlanski the proffered wage beginning on March 23, 2001 (the priority date of the visa petition), R.G. Construction submitted an incomplete copy of its S Corporation tax return for 2001, which showed a net income of $13,131. On October 2, 2003, the Director of the Nebraska Service Center for BCIS requested additional evidence on R.G. Construction's ability to pay the proffered wage, specifically, a copy of R.G. Construction's last quarterly federal tax return and copies of Ozlanski's W-2s for 2001 and 2002. On December 23, 2003, RG Construction submitted its complete 2002 federal income tax return and its most recent quarterly federal tax return.
On March 11, 2004, the Director of the Nebraska Service Center for BCIS denied the visa petition filed on behalf of Ozlanski, finding that R.G. Construction did not establish "the ability to pay the proffered wage at the time the priority date was established and continuing to the present." AR at 40. R.G. Construction appealed the denial of the visa petition to the Administrative Appeals Office (AAO). R.G. Construction's primary argument on appeal was that it had filed visa petitions in the past on behalf of other employees and those petitions had been approved. It also argued that the regulations do not require a petitioner to actually pay the proffered wage but only demonstrate an ability to pay the employee's salary.
On appeal, the AAO concluded that neither R.G. Construction's 2001 net income ($13,131), nor net current assets ($2,346), were sufficient to pay Ozlanski's wage, and, similarly, that neither R.G. Construction's 2002 net income ($5,054), nor net current assets ($6,778), were enough to demonstrate that R.G. had the continuing financial ability to pay Ozlanski beginning on the priority date.
Myroslav Posatskyy is a citizen of Ukraine and a finish carpenter. On April 19, 2001, CDC, Posatskyy's employer, filed a labor certification application on his behalf with the Department of Labor. The rate of pay shown on the application was $25.10/hour. The ...