dismissed EB-3 Case: Baking

identieing data deleted to 
prevent clearly unwd 
invasion of personal psivacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
IN RE: 
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. 5 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 
Page 2 
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 dismissed. 
The petitioner is a baked goods corporation. It seeks to employ the beneficiary permanently in the United 
States as a baker. 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 submitted documents that have any relationship to the petitioner, to show the ability to 
pay the proffered wage, or to the location where the alien beneficiary will work. 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. fj 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 slalled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
gving 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 slulled 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. 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. Cornm. 1977). 
Page 3 
Here, the Form ETA 750 was accepted on April 27, 2001. The proffered wage as stated on the Form ETA 
750 is $9.40 per hour ($17,108.00 per year based upon a 35 hourlweek). The Form ETA 750 states that the 
position requires three 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, copies of documentation concerning the beneficiary's 
qualifications as well as other documentation. 
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. 4 204.5(g)(2), the director requested on November 26, 2003, pertinent evidence of the petitioner's ability 
to pay the proffered wage beginning on the priority date. The director requested copies of the following 
documentation: 
Articles of Incorporation. 
Petitioner's U.S. federal tax returns for 2002. 
Form 941 Employer's Quarterly Federal Tax Returns for 1999 and 2002 with information to include the 
names, social security numbers and number of weeks worked for all employees for each quarter. 
Occupancy license. 
License to conduct business. 
Tax resale permit. 
Health Department permits for 200 1,2002, and 2003. 
Petitioner's leaselmortgage agreement. 
Franchise agreement. 
Assumed name registration. 
Regarding the beneficiary, the director requested copies of the following documentation: 
Documentation concerning the beneficiary's education, degrees, transcripts, training certificates according 
to the regulation at 8 CFR 4 204.5(1)(3)(ii). 
A foreign language letter with English translation. 
Social security card. 
Passport biographic pages, all visas, biometric information, validity dates. 
hvalldeparture card. 
In response to the request for evidence of the petitioner's ability to pay the proffered wage begnning on the 
priority date, petitioner submitted Articles of Incorporation of ISP of America Inc. orignally filed October 6, 
1997; Form 941 Employer's Quarterly Federal Tax Returns for 1999 and 2002; a U.S. federal tax return for 
2002; a sales and use tax registration; annual food permit for Dunkin Donuts #4496, 7340 W. Commercial 
Blvd., Lauderhill FL 333 19; an Agreement of Sales dated June 8, 1998 between Third Dunkin7 Donuts Realty 
Inc. andnd for the premises at 7340 W. Commercial Blvd. Lauderhill FL 33319;' 
1 
 According to the Agreement at closing the seller shall grant a new franchise agreement for the premises 
sold with a term of 20 years. 
a real estate mortgage for 7340 W. Commercial Blvd. Lauderhill FL 33319; an English language employment 
verification letter dated October 15,2001; and, the beneficiary's Pakistan passport pages and its renewal. 
The director denied the petition on February 27, 2004, finding that that the petitioner had not submitted 
documents that have any relationship to the petitioner, documents to show the ability to pay the proffered 
wage, or, to the location where the alien beneficiary will work. 
On appeal, counsel asserts that the director denied the petition rather than issuing a request for additional 
evidence. Counsel asserts that since the director did not request additional evidence that therefore the 
petitioner could not prove its ability to pay or the petitioner's address. The burden of proof in these 
proceedings rests solely with the petitioner. Section 29 1 of the Act, 8 U.S.C. 5 136 1. There is no regulatory 
requirement for CIS to issue or to re-issue such a request. When petitions on their face, do not demonstrate 
eligibility for the preference visa classification sought, the director may review and act upon the petition as 
submitted. See 8 C.F.R. 5 103.2 (b)(8). 
Counsel asserts that because the director requested Form 941 Employer's Quarterly Federal Tax Returns for 
1999 and 2002 with information to include the names, social security numbers and number of weeks worked for 
all employees for each quarter, and only received Form 941 Employer's Quarterly Federal Tax Returns 
without the requested information, that the director unfairly raised this omission. The explanation for the 
withholding of the employee information in the record of proceeding is that the certified public accountant 
who has been filing Form 941 for his clients for almost 20 years stated that the form has no attachments. This 
statement is not a reasonable excuse for the lack of the requested information. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. 5 
103.2(b)(14). 
Counsel contends on this issue " . . . Further, it is unclear as to the relevance of the request regarding the 
number of employees as it pertains to the "approvability" of the visa petition. Whether the petitioner employs 
2, 5, 9 or 20 employees is not the issue. The only issue is the need for a Baker which the Department of 
Labor reviewed and approved." 
Counsel's assertion is incorrect. The regulation at 8 C.F.R. 5 204.5(g)(2) states that the director may request 
additional evidence in appropriate cases. Although specifically and clearly requested by the director, the 
petitioner declined to provide Form 941 Employer's Quarterly Federal Tax Returns for 1999 and 2002 with 
information to include the names, social security numbers and number of weeks workedsfor all employees for 
each quarter. It is not the number of employees that is as important as verification through the statements that 
the employer has a verifiable workforce receiving compensation, although a large payroll would indicate that 
the employer is able to meet a substantial payroll obligation. The quarterly tax returns would have 
demonstrated the amount of wages for each employee for its workforce the petitioner reported to the IRS and 
further reveal its ability to pay the proffered wage. The petitioner's failure to submit these documents cannot 
be excused. The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. See 8 C.F.R. 5 103.2(b)(14). 
In determining the respective jurisdictions of the Department of Labor and the CIS, one may turn to the entire 
body of recent court proceedings interpreting the interplay of the agencies and strictly confining the final 
determination made by the Department of Labor. See Stewart InJi-a-Red Commissaly, Etc. v. Coomey, 661 F.2d 
1 (1st Cir. 198 1); Denver Tofu Company v. District Director, Etc., 525 F. Supp. 254 (D. Colo. 1981); and, 
Joseph v. Landon, 679 F.2d 113 (7th Cir. 1982). 
These cases recognize the labor certification process and the authority of the Department of Labor in this 
process stem from section 214(a)(14) of the Act, 8 U.S.C. 1182(a)(14). In labor certification proceedings, the 
Secretary of Labor's determination is limited to analysis of the relevant job market conditions and the effect, 
which the grant of a visa would have on the employment situation. The CIS, through the statutorily imposed 
requirement found in section 204 of the Act, 8 U.S.C. 1154, must investigate the facts in each case and, after 
consultation with the Department of Labor, determine if the material facts in the petition including the 
certification are true. 
Although the advisory opinions of other Government agencies are gven considerable weight, CIS has authority 
to make the final decision about a beneficiary's eligibility for occupational preference classification. The 
Department of Labor is responsible for decisions about the availability of United States workers and the effect of 
a prospective employee's employment on wages and worlung conditions. The Department of Labor's decisions 
concerning these factors, however, do not limit CIS'S authority regarding eligbility for occupational preference 
classification. Therefore, the issuance of a labor certification does not necessarily mean a visa petition will be 
approved. 
Further, on the same point, 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. 
Evidence was submitted to show that the petitioner employed the beneficiary as a baker since October 2000 at 
1801 West Oakland Park Blvd., Oakland Park Florida, 333 1 1 according to the Form G-235A in the record of 
proceeding. 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. If the beneficiary was listed as an employee in information 
provided then that information is used as mentioned above and in other examinations by the director and 
AAO to determine the ability to pay based upon the particular facts in each case. 
Also, the regulation 8 C.F.R. $ 204.5(g)(2) Ability of prospective employer to pay wage states in pertinent 
part: ". . . 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 [emphasis added]. 
Counsel raises another issue based upon the director's findings. Counsel asserts that there is an incorrect 
finding by the director that the various addresses found in documents in the record of proceeding are a 
substantive issue. The petition (1-140) states that the corporate address is 1801 West Oakland Park Blvd., 
Oakland Park Florida, 333 11. Part 6 of the petition has a section that is entitled "Address where the person 
[the beneficiary] will work if different from address in part I. The petitioner left this section blank so the 
inference is that the beneficiary will work at 1801 West Oakland Park Blvd., Oakland Park Florida, 333 1 1. 
The Alien Employment Application in Form 750 Part A in Section 6 requested the address of the employer. 
The petitioner inserted "1801 West Oakland Park Blvd., Oakland Park Florida, 3331 1." In Section 7 on that 
page, the section requested, "Address where the alien will work." The employer, who is the petitioner herein, 
stated "Same as #6" (i.e. 1801 West Oakland Park Blvd., Oakland Park, Florida, 3331 1). The location of the 
work site, not the location of the employer, will determine where the labor certification application must be 
filed and job posting is accomplished. 
Beyond the decision of the director, in applications filed under $9 656.21 (Basic Process), 656.21a (Special 
Handling) and 656.22 (Schedule A), the employer shall document that notice of the filing of the Application for 
Alien Employment Certification was provided: 
Page 6 
(i) To the bargaining representative(s) (if any) of the employer's 
employees in the occupational classification for which certification of 
the job opportunity is sought in the employer's location(s) in the area of 
intended employment. 
(ii) 
 If there is no such bargaining representative, by posted notice to the 
employer's employees at the facility of location of the employment 
[emphasis added]. 
Here, the 1-140 petition and the Alien Employment Application stated that the beneficiary would be employed 
at 1801 West Oakland Park Blvd., Oakland Park, Florida, 3331 1. A labor certification for a specific job offer 
is valid only for the particular job opportunity, the alien for whom the certification was granted, and for the 
area of intended employment stated on the Form ETA 750. 20 C.F.R. 656.30(C)(2). The labor certification 
states 1801 West Oakland Park Blvd., Oakland Park, Florida, 3331 1, but not 7340 W. Commercial Blvd., 
Lauderhill FL 333 19. The latter address is not mentioned. Counsel has submitted the following documents to 
accompany the appeal statement that were not already submitted: several street maps of Lauderhill, Florida, 
and the street address of the petitioner at 7340 W. Commercial Blvd., Lauderhill FL 33319 that is the address 
where the beneficiary will work. 
Counsel has submitted documents stating that the location of the retail store where the beneficiary will work 
is 7340 W. Commercial Blvd., Lauderhill FL 33319, and that 1801 West Oakland Park Blvd., Oakland Park, 
Florida, 3331 1 is the corporate business address. This is an admission against the petitioner's interest. As 
already stated by the director, "The documents in evidence do not appear to have any relationship to the 
petitioner, or to the location where the alien will work." 
Counsel raises another issue based upon the director's findings. Counsel contends that that the director " . . . 
erred in determining that a reference letter from Pakistan is invalid because it is written in English rather than 
Urdu." The only evidence in the record of proceeding that states the beneficiary's prior employment 
experience as a baker is a photocopy of a un-notarized job verification in English dated October 15, 2001 
from the Friscu Sweet House, Faisalabad, Pakistan stating that the beneficiary was employed full time as a 
baker from June 1995 to May 1999. 
According to the request for evidence the petitioner was asked to submit a copy of the foreign language letter 
with certified English translation. The petitioner did not submit the requested evidence, and upon appeal, 
states that the letter was written in English. 
The AAO's concern concerning the beneficiary's prior employment history is that the employment letter is 
not verified by notarization, and, not that it is in English rather than a foreign language of the country from 
where it was made. There is no independent objective evidence such as supporting letters from the business 
or the beneficiary's associates there, cancelled checks, cash disbursements receipts, government occupational 
permits or licenses, or any other evidence whatsoever except this unsigned letter photocopy to demonstrate 
the three years of prior job experience as a baker in Pakistan. Notwithstanding the above, we find the job 
verification from Friscu Sweet House to be credible. 
Counsel raises another issue based upon the director's findings. The director denied the petition on February 
27, 2004, finding that that the petitioner had not submitted documents to show the ability to pay the proffered 
wage. While the petitioner has submitted U.S. federal tax returns, the returns state taxable income for the 
petitioner's business at 7340 W. Commercial Blvd., Lauderhill FL 33319, and not the business location 
Page 7 
designated in both the petition and certified Alien Employment Application located at 1801 West Oakland 
Park Blvd., Oakland Park, Florida, 333 1 1. 
As more fully above explained, the petitioner had not submitted documents relating the petitioner located at 
1801 West Oakland Park Blvd., Oakland Park, Florida, 33311, documents to show the ability to pay the 
proffered wage from a business located at 1801 West Oakland Park Blvd., Oakland Park, Florida, 3331 1, or, 
to the location where the alien the petition and certified Alien Employment Application state he will work, 
that is 1801 West Oakland Park Blvd., Oakland Park, Florida, 333 1 1 .' 
ORDER: The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has 
not been met. The appeal is dismissed 
2 
 According to the Form G-235A, the beneficiary was working as a baker since October 2000 at 1801 West 
Oakland Park Blvd., Oakland Park, Florida, 333 11. The job offer letter dated September 10, 2002, from the 
petitioner to the beneficiary is on letterhead with an address of 1801 West Oakland Park Blvd., Oakland Park, 
Florida, 333 1 1.