dismissed EB-3 Case: Beauty Salon

identifying data deletat to 
prevent clearly unwarranted 
Mvmh of personat privacy 
PUBLIC COPY 
U.S. Department of IIorneland Security 
20 Mass. Ave.. N.W.. Rrn. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
46 
FILE: EAC-04-163-52235 Office: VERMONT SERVICE CENTER 
  date:^^^ 0 5 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. $ 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-04-163-52235 
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 dismissed. 
The petitioner is a beauty salon. It seeks to employ the beneficiary permanently in the United States as a 
barber. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification, approved by the 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. 
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 January 10, 2005 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 nature, for which qualified workers are not available in the United 
States. 
The regulation 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 
*::it If-represented despite receiving assistance from 
The record of proceeding only contains a proper w y ex u 
Notice of Entry o 
 ppearance as Attorney or Representative (Form G-28) by the petitioner and - - filed the instant appeal and indicated that he was an attorney and represented the petitioner. 
There is no Form G-28 filed by him or the petitioner; however, since he shares an address with 
presumably he had the petitioner's consent to file the instant appeal based on her representat~on q~ o t e 
petitioner. indicates that she works for the National Federation of Paralegals Associations, Inc. 
and marked a box stating that it was an accredited organization. However, a review of recognized 
organizations and accredited representatives reported in July 2006 by the Executive Office for Immigration 
Review, does not mention 
 - - 
 , or the National Federation of Paralegals 
Associations, Inc. See http://www.usdoi.rzov/eoir/statspub/accreditedreproster.pdf and 
http://www.i~sdo~i.govleoir/statspublreco~nitionaccreditationroster.df (accessed August 23, 2006). Under 
8 C.F.R. 5 292.1, persons entitled to represent individuals in matters before the Department of Homeland 
Security ("DHS"), and the Immigration Courts and Board of Immigration Appeals ("Board"), or the DHS 
alone, include, among others, accredited representatives. Any such representatives must be designated by a 
qualified organization, as recognized by the Board. A recognized organization must apply to the Board for 
accreditation of such a representative or representatives. Therefore, the petitioner is considered self- 
represented in these proceedings. 
EAC-04-163-52235 
Page 3 
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 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 CFR 
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. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on June 27, 20012. The proffered wage as stated on the Form ETA 
750 is $12.17 per hour ($25,3 13.60 per year). The Form ETA 750 states that the position requires two years 
of experience in the proffered position and the ability to obtain a license. 
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 
3 
pertinent evidence in the record, including new evidence properly submitted upon appeal . The petitioner did 
not submit any evidence on appeal. Relevant evidence in the record includes compiled but unaudited 
financial statements and bank records. The record does not contain any other evidence relevant to the 
petitioner's ability to pay the wage. 
On the petition, the petitioner claimed to have been established in 1999, to have a gross annual income of 
$26,985 and net annual income of $2,415, and to currently employ two workers. On the Form ETA 750B, 
signed by the beneficiary on November 1, 2004, the beneficiary did not claim to have worked for the 
petitioner 
On appeal, the petitioner asserts that it complied with the director's request for financial statements and has 
sufficient net income to pay the proffered wage. The petitioner also claims that its tax returns reflect its gross 
and net profits. 
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 
The instant petition is for a substituted beneficiary. An 1-140 petition for a substituted beneficiary retains 
the same priority date as the original ETA 750. Memo. 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/fm/fm96/fm~28-96a.pdf 
(March 7, 1996). 
3 
 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). The record in the instant 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-04-163-52235 
Page 4 
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. 9 204.5(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. 61 2 (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 the 
instant case, the petitioner has not established that it employed and paid the beneficiary the full proffered 
wage during any relevant timeframe including the period from the priority date in 2001 or subsequently. 
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 
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, 7 19 F. Supp. 532 (N.D. Texas 1989); K. C. P. Food Co., Znc. 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, showing that the petitioner paid wages 
in excess of the proffered wage is insufficient. 
In K.C.P. Food Co., Znc. 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. 
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, including real property that counsel asserts should be considered. Those depreciable 
assets will not be converted to cash during the ordinary course of business and will not, therefore, become 
EAC-04-163-52235 
Page 5 
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. Rather, 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 liabi~ities.~ A corporation's year-end current assets are shown on 
Schedule L, lines 1 through 6. Its year-end current 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 income and net current assets would be ascertained through regulatory-prescribed 
evidence such as federal tax returns, audited financial statements, or annual reports. In this case, the 
petitioner failed to submit regulatory-prescribed evidence of its continuing ability to pay the proffered wage 
beginning on the priority date. The director, in her request for evidence dated September 3, 2004, requested 
tax returns or in the alternative annual reports accompanied by audited or reviewed financial statements. The 
director was incorrect in stating that the petitioner could submit reviewed financial statements. Regardless, 
the burden of proof is on the petitioner. In visa petition proceedings, the burden is on the petitioner to 
establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The 
petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit 
sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 
1988); Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965). The regulation at 8 C.F.R. tj 204.5(g)(2) makes 
clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, 
those financial statements must be audited. An audit is conducted in accordance with generally accepted 
auditing standards to obtain a reasonable assurance whether the financial statements of the business are free of 
material misstatements. The unaudited financial statements that counsel submitted with the petition are not 
persuasive evidence. The accountant's report that accompanied those financial statements makes clear that 
they were produced pursuant to a compilation rather than an audit. A compilation is the management's 
representation of its financial position and is the lowest level of financial statements relative to other forms of 
financial statements. As the accountant's report also makes clear, financial statements produced pursuant to a 
compilation are the representations of management compiled into standard form. The unsupported 
representations of management are not reliable evidence and are insufficient to demonstrate the ability to pay 
the proffered wage. 
Additionally, reliance on the balances in the petitioner's bank accounts is misplaced. First, bank statements 
are not among the three types of evidence, enumerated in 8 C.F.R. tj 204.5(g)(2), required to illustrate a 
petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. 204.5(g)(2) 
is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show 
the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third, 
no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow 
reflect additional available funds that were not reflected on its tax return, such as the petitioner's taxable income 
(income minus deductions) or the cash specified on Schedule L that would have been considered in determining 
the petitioner's net current assets. 
4~ccording to Burron'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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
EAC-04-163-52235 
Page 6 
statement on appeal that the "petitioner's tax returns of records, which were submitted to 
[CIS]" is incorrect. The record of roceeding as currently constituted, does not contain the petitioner's tax 
returns. Additionally cites to prior AAO cases without providing a published citation to 
support appellate assertions. However, while 8 C.F.R. 5 103.3(c) provides that precedent decisions of CIS are 
binding on all its employees in the administration of the Act, unpublished decisions are not similarly binding. 
Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 
5 103.9(a). 
Therefore, the evidence submitted does not establish that the petitioner had the continuing ability to pay the 
proffered wage beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.