dismissed EB-3 Case: Cosmetology

identifying data deleted to 
pmvent clearly unwarmtd 
in~8sion of personal privacy 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PETITION: 
 Immigrant Petition for Other Worker Pursuant to tj 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. 
Administrative Appeals Office 
DISCUSSION: 
 The employment based immigrant visa petition was denied by the Director, California 
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 
cosmetologist. 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 director also 
determined that the petitioner had not established that the beneficiary met the experience requirements as 
required by the Form ETA 750. 
On appeal, counsel submits a brief and additional documentation 
It is noted that the G-28 in the record of proceeding is not signed by the petitioner, but by the beneficiary. 
The regulation at 8 C.F.R. tj 103.2(a)(3) states: 
An applicant or petitioner may be represented by an attorney in the United States, as 
defined in Sec. l.l(f) of this chapter, by an attorney outside the United States as defined 
in Sec. 292.1(a)(6) of this chapter, or by an accredited representative as defined in Sec. 
292.1(a)(4) of this chapter. A beneficiary of a petition is not a recognized party in such a 
proceeding. An application or petition presented in person by someone who is not the 
applicant or petitioner, or his or her representative as defined in this paragraph, shall be 
treated as if received through the mail, and the person advised that the applicant or 
petitioner, and his or her representative, will be notified of the decision. Where a notice 
of representation is submitted that is not properly signed, the application or petition will 
be processed as if the notice had not been submitted. 
However, in the interest of fairness, the AAO will review counsel's arguments and evidence submissions. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
Ability ofprospective 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. 
Eligibility in this matter hinges on the petitioner's continuing ability to pay the wage offered beginning on 
the priority date, the day the request for labor certification was accepted for processing by any office within 
the employment system of the Department of Labor. See 8 C.F.R. $ 204.5(d). Here, the request for labor 
certification was accepted on September 27, 1999. The proffered salary as stated on the labor certification 
is $1,892.80 per month or $22,713.60 per year. 
With the petition, counsel submitted copies of documentation regarding the beneficiary's finances, bills, etc. 
The director considered such evidence insufficient and on December 19, 2003 and May 4, 2004, he 
requested additional evidence pertinent to the petitioner's ability to pay the proffered wage from the priority 
date of September 27, 1999 and continuing to the present. The petitioner was informed that the evidence 
must be either in the form of copies of annual reports, federal tax returns with appropriate signatures, or 
audited financial statements. In the May 4, 2004 request for evidence, the director also informed the 
petitioner that even though the petitioner had submitted tax returns for 2000 through 2002, those returns 
were not signed nor dated, and therefore, the returns must be resubmitted with appropriate dates and 
signatures and include the 1999 and 2003 tax returns. 
In addition, the director requested evidence that the beneficiary possessed the experience listed on the Form 
ETA 750 and that the evidence should be in letterform on the previous employer's letterhead showing the 
name and title of the person verifying the information. The verification should state the beneficiary's title, 
duties, and dates of employment/experience and number of hours worked per week. The director 
specifically requested copies of the beneficiary's Forms W-2, Wage and Tax Statements, from the 
petitioner, evidence that the beneficiary completed four years of high school as listed on Form ETA 750, a 
letter of the beneficiary's experience with the petitioner, letters from the beneficiary's prior employers, and 
a copy of the beneficiary's cosmetology license. The director informed the petitioner that the submission of 
cosmetology classes and permits to operate a beauty parlor were not sufficient evidence of full-time 
cosmetology experience and that the petitioner should submit letters with prior employers, or in the case of 
owning a salon in the Philippines, with managers, clients, government officials, etc. to include the 
beneficiary's title, duties, dates of employment, number of hours worked per week, and contact phone 
numbers for each prior employer. 
In response, counsel submitted complete copies of the petitioner's 1999 through 2003 Forms 1120S, U.S. 
Income Tax Returns for an S Corporation; a copy of a Certificate of Participation, issued to the beneficiary 
by the of Antipolo, Rizal in the Philippines reflecting the 
beneficiary's participation in a Cosmetology Class held from August 1976 through January 1977; a copy of 
a Sanitary Permit to Operate issued to the beneficiary in 1984 by the Office of the Municipal Health Officer 
of Antipolo, Rizal, Philippines; a copy of a Permit to Operate issued to the beneficiary by the Office of the 
Mayor of Antipolo, Province of Rizal, Philippines for the year 1984; a copy of the beneficiary's business 
card for her business in the Philippines, New Look Beauty Parlor; copies of Certificates of Attendance 
issued to the beneficiary by Clairol Technical Training Center Philippines evidencing the beneficiary's 
attendance at continuing educational training on specific procedures and use of beauty products; a statement 
of the beneficiary's new address; a copy of a high school Certification; a letter of employment from the 
petitioner; a letter of the beneficiary's experience wit and a copy of the 
beneficiary's cosmetology license. 
The petitioner's 1999 tax return reflected an ordinary income or net income of $16,739 and net current 
assets of $5,365. The petitioner's 2000 tax return reflected an ordinary income or net income of -$5,904 
and net current assets of $2,977. The petitioner's 2001 tax return reflected an ordinary income or net 
income of $2,499 and net current assets of $5,258. The petitioner's 2002 tax return reflected an ordinary 
income or net income of $1,254 and net current assets of $6,475. The petitioner's 2003 tax return reflected 
an ordinary income or net income of -$4,135 and net current assets of $469. The letter of employment from 
the petitioner, signed by Arnold Blanco, President of the petitioner, asserts that the beneficiary acted as an 
independent contractor to some of the petitioner's customers who required home visits from January 1999 
until April 2004. Because of the outstanding feedback received fi-om its customers that the beneficiary 
serviced, the petitioner filed Form ETA 750, offering the beneficiary a permanent position as a 
cosmetologist with the same duties and responsibilities as the beneficiary performed for her customers. The 
certification from the beneficiary's high school proclaimed that the beneficiary "had been a first year to 
fourth year student of this institution but she was not able to finish her fourth year during the school year 
12, 1956." The letter from 
 igned 
beneficiary "has been providing the following services to 
since 1996. Styling and cutting hair, wash and sets, permanents, 
hair dyeing, manicures and pedicures." The certificates from Clairol Technical Training Center Philippines 
demonstrates that the beneficiary completed a course and earned the certification as hair colorist and 
attended a seminar workshop on hair coloring, hair perming, hair cutting, hair care and received instructions 
on the proper use and application of Clairol professional products. 
The director determined that the evidence submitted did not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date and, on October 6,2004, denied the petition. 
On appeal, counsel provides previously submitted documentation and an affidavit from the beneficiary. 
Counsel asserts that the petitioner has established its ability to pay the proffered wage and has demonstrated 
that the beneficiary has the one-year experience as required by the Form ETA 750. The affidavit from the 
beneficiary describes her experience as first attending a cosmetology class sponsored by the Rotary Club of 
Antipolo in the Philippines from August 1976 to January 1977; that after acquiring her initial training, she 
worked for several smaller parlors in the Antipolo, Rizal area of the Philippines; that she set up her own 
beauty parlor called New Look Beauty Parlor at 76 P. Burgos St., Antipolo, Rizal, Philippines; that when 
she left the Philippines in March of 1987, she appointed her daughter manager of her beauty shop in the 
Philippines, that after having worked several odd jobs as a cosmetologist in the United States her first real 
job began in January 1991 when she began working part-time for Susan Hair Salon; that she continued to 
work for Susan Hair Salon until December 1998; that she also acquired individual clients and customers 
requiring home service; that in December 1998, she applied for a job with the petitioner who filed Form 
ETA 750 offering her a permanent position as a cosmetologist; that the petitioner referred individual clients 
and customers to her for home servicing until A~ril 2004 when she received her first work ~ermit: that 
California. 
Counsel contends that the petitioner has shown its ability to pay the proffered wage through its tax returns. 
Counsel claims that the size of the current ratio, current assetslcurrent liabilities, "a healthy company needs 
to maintain depends on the relationship between inflows of cash and the demands for cash payments. A 
company that has a continuous and reliable inflow of cash or other liquid assets, . . ., may be able to meet 
currently maturing obligations easily despite a small current ratio - say 1.10 (which means that the 
company has $1.10 in current assets for every $1.00 of current liabilities)." (Emphasis in original.) 
Counsel further contends that the petitioner has established that the beneficiary meets the experience 
requirements of the Form ETA 750 through the documents previously submitted and with the beneficiary's 
affidavit filed on appeal. 
In determining the petitioner's ability to pay the proffered wage, Citizenship and Immigration Services 
(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 present matter, the petitioner did not establish that it 
had employed the beneficiary in 1999 through 2003 at a salary equal to or greater than the proffered wage. 
As an alternative 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, 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. Feldrnan, 736 F.2d 1305 (9fi Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 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), afd., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., the court held that 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 
CIS 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 also Elatos Restaurant Corp., 632 F. Supp. at 1054. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a 
petitioner's ability to pay a 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 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. 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 liabilities.' 
 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 a corporation's end-of-year 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 petitioner's net current assets during 1999 through 2003 were $5,365, $2,977, 
$5,258, $6,475, and $469, respectively. The petitioner could not have paid the proffered wage in 1999 
through 2003 from its net current assets. 
Counsel claims that the current ratio, current assets/current liabilities, shows that the petitioner has the 
ability to pay the proffered wage in each relevant year. Financial ratio analysis is the calculation and 
comparison of ratios that are derived from the information in a company's financial statements. The level 
and historical trends of these ratios can be used to make inferences about a company's financial condition, 
its operations, and attractiveness as an investment. In isolation, a financial ratio is a useless piece of 
information. In context, however, a financial ratio can give a financial analyst an excellent picture of a 
company's situation and the trends that are developing. A ratio gains utility by comparison to other data 
and standards, such as the performance of the industry in which a company competes. Ratio Analysis 
enables the business ownerlmanager to spot trends in a business and to compare its performance and 
condition with the average performance of similar businesses in the same industry. Important balance sheet 
ratios measure liquidity and solvency (a business's ability to pay its bills as they come due) and leverage 
(the extent to which the business is dependent on creditors' funding). Liquidity ratios indicate the ease of 
2 
turning assets into cash and include the current ratio, quick ratio, and working capital. 
While counsel argues that the current ratio shows the petitioner has the ability to pay the proffered wage, he 
provides no evidence of any industry standard that would allow a comparison with the petitioner's current 
ratio. In addition, he has not provided any authority or precedent decisions to support the use of current 
ratios in determining the petitioner's ability to pay the proffered wage. While 8 C.F.R. $ 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. § 103.9(a). Furthermore, as stated above, when determining the petitioner's 
ability to pay the proffered wage, CIS first examines whether the petitioner establishes by documentary 
evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, then CIS 
will next examine the petitioner's net income figure as reflected on the petitioner's federal income tax 
return, without consideration of depreciation or other expenses, and finally, CIS will consider net current 
1 
 According 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 
accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
2 
 See Financial Ratio Analysis, http://www.finpipe.corn/eauity/finratan.htrn (accessed March 21, 2006); 
Financial Management, Financial Ratio Analysis, http://www.zeromillion.comhusiness/financial/financial- 
ratio.htm1 (accessed March 2 1, 2006); Industry Financial Ratios, Financial Ratio Analysis, 
http://www.ventureline.com~FinAnal indAna1ysis.a~~ (accessed March 2 1, 2006). 
assets as an alternative method of demonstrating the ability to pay the proffered wage.3 Net current assets 
are the same as working capital which bankers look at over time to determine a company's ability to 
weather financial crises. In the instant case, net current assets show its highest level in 2002 at $6,475 and 
its lowest level in 2003 at $469. Neither the petitioner's net income nor its net current assets are sufficient 
to pay the proffered wage in 1999 through 2003. Moreover, because the current ratio is not designed to 
demonstrate an entity's ability to take on the obligation of paying additional wages, and this office is not 
4 
persuaded to rely upon it, this office will not accept that calculation . 
The petitioner's 1999 tax return reflects an ordinary income or net income of $16,739 and net current assets 
of $5,365. The petitioner could not have paid the proffered wage from either its net income or its net 
current assets in 1999. 
The petitioner's 2000 tax return reflects an ordinary income or net income of 45,904 and net current assets 
of $2,977. The petitioner could not have paid the proffered wage from either its net income or its net 
current assets in 2000. 
The petitioner's 2001 tax return reflects an ordinary income or net income of $2,499 and net current assets 
of $5,258. The petitioner could not have paid the proffered wage from either its net income or its net 
current assets in 2001. 
The petitioner's 2002 tax return reflects an ordinary income or net income of $1,254 and net current assets 
of $6,475. The petitioner could not have paid the proffered wage from either its net income or its net 
current assets in 2002. 
The AAO's analysis complied with policy set forth by William R. Yates, Associate Director of 
Operations of CIS, who issued an internal memorandum dated May 14, 2005 guiding adjudications of 
petitioning entities' continuing ability to pay the proffered wage through the following three-tiered analysis: 
Adjudicators should make a positive ability to pay determination on an 1-140 under the following 
circumstances: 
The petitioner's net income is equal to or greater than the proffered wage; 
The petitioner's net current assets are equal to or greater than the proffered wage; or 
The employer submits credible, verifiable evidence that the petitioner is both employing the 
beneficiary and has paid or is currently paying the proffered wage. 
4 
 There are several points one must keep in mind about ratios. First, they are "flags" indicating areas of 
strength or weakness. One or even several ratios might be misleading. Second, there is no single correct 
value for a ratio. The observation that the value of a particular ratio is too high, too low, or just right 
depends on the perspective of the analyst. Third, financial ratios are meaningful only when they are 
compared with some standard, such as another industry trend, ratio trend, or a ratio trend for the specific 
sector being analyzed. 
The petitioner's 2003 tax return reflects an ordinary income or net income of -$4,135 and net current assets 
of $469. The petitioner could not have paid the proffered wage from either its net income or its net current 
assets in 2003. 
Thus, the petitioner has failed to demonstrate that it has the continuing ability to pay the proffered wage 
beginning on the priority date. 
The second issue in this proceeding is whether the petitioner has established that the beneficiary met the 
experience requirements as set forth on the Form ETA 750. 
To be eligible for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the Department 
of Labor's employment service system. Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). 
In this case, that date is September 27, 1999. 
The approved alien labor certification, "Offer of Employment," (Form ETA-750 Part A) describes the terms 
and conditions of the job offered. Block 14 and Block 15, which should be read as a whole, set forth the 
educational, training, and experience requirements for applicants. This information appears as follows: 
Grade School: 6 years 
High School: 4 years 
Training: 600 hours 
Type of Training: cosmetolo~st 
Experience: 1 year in the job offered as a cosmetologist 
Block 15 requires the beneficiary to have a license from Consumer Affairs, State of California. 
Based on the information set forth above, it can be concluded that an applicant for the petitioner's position of 
cosmetologst must have one year of experience as a cosmetologist. 
The regulation at 8 C.F.R. $ 204.5(1)(3)(ii)(D) states in pertinent part: 
Other workers. If the petition is for an unslulled (other) worker, it must be accompanied by 
evidence that the alien meets any educational, training and experience, and other requirements 
of the labor certification. 
The regulation at 8 C.F.R. fj 204.5(g)(l) requires that evidence relevant to qualifying experience or training 
must be submitted in the form of letters from current or former employers or trainers and must include the 
name, address, and title of the writer and a specific description of the alien's duties. If this evidence is 
unavailable, other documentation will be considered. 
In this case, the petitioner submitted a copy of a Certificate of Participation issued to the beneficiary bv the 
participation in a cosmetology class held between August 1976 and January 1977; a copy of a Sanitary Permit 
to Operate issued to the beneficiary by the Office of the Municipal Health Officer of Antipolo, Rizal, 
Philippines; a copy of a Permit to Operate issued to the beneficiary by the Office of the Mayor of Antipolo, 
Province of Rizal, Philippines for the year 1984; a copy of a business card of the beneficiary's cosmetology 
business called New Look Beauty Parlor; and copies of Certificates of Attendance issued to the beneficiary by 
Clairol Technical Training Center Philippines. The petitioner also submitted an Employment Certification, 
- -. A - 
signed and dated, by the petitioner's president, 
 attesting to the present empl~yer-empl~ye~ 
relationship between the petitioner and the beneficiary; a sworn declaration attesting to the referral-system 
relationship that existed between the petitioner and beneficia 
 from January 1999 until April 2004; a 
Certification, dated July 15,2004, issued and signed b , president o 
Inc. attesting to the beneficiary's employment as an independent contractor with 
Inc. since September 1996, and a copy of the beneficiary's cosmetology 
Consumer Affairs of the State of california5 
The director considered the documentation to be insufficient as proof of the beneficiary's qualifying 
employment and experience and denied the petition on October 6,2004. 
On appeal, the petitioner, through counsel, provides previously submitted documentation and an Affidavit of 
Work Experience in Lieu of Testimony in Court from the beneficiary. Counsel states: 
[The petitioner1 has submitted a Certification. dated Julv 15. 2004. issued bv the wesident of 
d, 
, Ms. . . The ~ehificate sites &at the alien 
beneficiary has been providing services to the resident[s] ofsince September of 
1996, and states in detail the scope of services that the alien beneficiary has rendered. [The 
director] has noted that the certification does not indicate the number of hours worked by the 
alien beneficiary, nor does it indicate whether the services were rendered on a permanent basis. 
The reason for this is that the alien beneficiary rendered the services as an independent 
contractor, and not as an employee of 
Second, [the petitioner] submitted a sworn Declaration, dated July 21, 2004, signed and dated 
under penalty- under the laws of the State of California by its President and General 
Manager, Mr. The Declarations [sic] states that since January of 1999, the alien 
beneficiary, acting as an independent contractor, and usin her own tools of the trade, serviced 
[the petitioner's] customers who needed home visits. Mr. Bets that using tools such as 
scissors, blowers, trimmers, and similar equipment[,] the alien beneficiary performed services 
similar to those duties and responsibilities prescribed for the position of "Cosmetologist." . . . 
Third, the alien beneficiary has been unable to submit any certificate of work experience from 
the Philippines because the alien beneficiary was self-employed. . . . 
5 
 It is noted that the beneficiary's cosmetology license does not show the date of issue, and therefore, it is 
impossible for the AAO to determine if the beneficiary had acquired the license before the priority date of 
September 27, 1999. 
Page 10 
In addition to the foregoing, [the petitioner] respectfully submits as Annex "K" the original of 
alien beneficiary's Affidavit of Work Experience in Lieu of Testimonv in Court. 
 Ihe 
attached affidavit states in detail alien beneficiary's work experience both in the Philippines and 
in the United States. [The petitioner] respectfully submits that the affidavit will prove that the 
alien beneficiary has at least the one-year experience required by the Form ETA-750 and Form I- 
140 subject of this appeal. 
(Emphasis in original). 
The regulations at 8 C.F.R. 9 204.5(1)(3)(ii) state the following concerning evidence which would establish 
a beneficiary's qualifications: 
Other documentation - (A) General. 
 Any requirements of training or experience for 
skilled workers, professionals, or other workers must be supported by letters from trainers 
or employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the alien labor 
certification to determine the required qualifications for the position. CIS may not ignore a term of the 
labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese 
Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 
1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (lSt Cir. 1981). 
A petitioner must establish the elements for the approval of the petition at the time of filing. A petition may not 
be approved if the beneficiary was not qualified at the priority date, but expects to become eligible at a 
subsequent time. See Matter of Katigbak, 14 INA Dec. 45, 49 (Cornm. 1971). Thus, the petitioner must 
illustrate that the beneficiary met the requirements for the position at the time the alien labor certification 
application was filed. 
In the instant case, the ETA 750 requires one year of experience in the job offered. The evidence to 
establish that the beneficiary had one year of 
 ists of affidavits from the 
petitioner, the beneficiary, and the president o 
 . In addition, evidence of 
the beneficiary's experience included 
 in various hair coloring 
workshops, a copy of a Sanitary Permit to Operate from the Office of the Municipal Health Officer of 
Antipolo, Rizal, Philippines, and a copy of a Permit to Operate from the Office of the Mayor of Antipolo, 
Rizal, Philippines. 
The regulation at 8 C.F.R. 3 103.2 also provides guidance in evidentiary matters. It states in pertinent part: 
(6) Evidence andprocessing- 
(1) General. An applicant or petitioner must establish eligibility for a requested 
immigration benefit. An application or petition form must be completed as 
Page 11 
applicable and filed with any initial evidence required by regulation or by the 
instructions on the form. Any evidence submitted is considered part of the relating 
application or petition. 
(2) Submitting secondaly evidence and afidavits- 
(i) 
 General. The non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. If a required document such as a birth or marriage certificate, 
does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and 
submit secondary evidence, such as church or school records, pertinent to the facts at issue. 
If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner 
must demonstrate the unavailability of both the required document and relevant secondary 
evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not 
parties to the petition who have direct personal knowledge of the event and circumstances. 
Secondary evidence must overcome the unavailability of primary evidence, and affidavits 
must overcome the unavailability of both primary and secondary evidence. 
If primary evidence such as an employer letter is not available, then the petitioner should demonstrate its 
unavailability and submit relevant secondary evidence. If secondary evidence, such as pay stubs or tax 
documents verifying the alien's employment, is unavailable, the petitioner must demonstrate the unavailability 
of such evidence and then may submit affidavits pursuant to the requirements of 8 C.F.R. 5 103.2@)(2). It is 
noted that two or more affidavits from individuals who are not parties to the petition and who have direct 
personal knowledge of an event are only acceptable after the petitioner demonstrates the unavailability of the 
required primary and relevant secondary evidence. 
On appeal, counsel asserts that the evidence shows that the beneficiary has the required one-year of experience. 
In this case no regulatory-prescribed employer letter was submitted to corroborate the beneficiary's work 
experience in the Philippines. The explanation given as to why it was unavailable was that the beneficiary was 
self-employed. No relevant secondary evidence such as payroll records or tax information was offered. The 
only evidence6 attempting to corroborate the beneficiary's work experience in the Philippines was not submitted 
until the decision was appealed. Again, the non-existence or other unavailability of required evidence creates 
a presumption of ineligibility. See 8 C.F.R. 5 103.2(b)(2)(i). It is noted that counsel did submit copies of a 
Sanitary Permit to Operate and a copy of a Permit to Operate, both issued to the beneficiary and both dated 
1984. However, those permits do not assure that the beneficiary operated the business for one year. 
The declarations that have been provided on appeal are not affidavits as they were not sworn to or 
affirmed by the declarant before an officer authorized to administer oaths or affirmations who has, having 
confirmed the declarant's identity, administered the requisite oath or affirmation. See Black's Law 
Dictionary 58 (7th Ed., West 1999). Nor, in lieu of having been signed before an officer authorized to 
administer oaths or affirmations, do they contain the requisite statement, permitted by Federal law, that the 
signers, in signing the statements, certify the truth of the statements, under penalty of pe jury. 28 U.S.C. 5 
1746. Such unsworn statements made in support of an appeal are not evidence and thus, as is the case with 
the arguments of counsel, are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 
188-89 n.6 (1 984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Page 12 
Counsel has provided a declaration from the petitioner and a declaration from the president of 
in support of the beneficiary's work experience in the United States. The dec 
the petitioner indicates that it employed the beneficiary in a full-time position as a cosmetologist since May 1, 
beneficiary since September 1996. The declaration does not, however, list the number of hours worked per 
week, and no corroborative evidence such as pay stubs, Forms W-2, Wage and Tax Statements, Forms 1099- 
MISC, Miscellaneous Income, etc. was provided in support of the declaration. It is noted that the beneficiary 
also submitted a declaration in support of her work experience in the Philippines and the United States. 
However, since the declaration is not an affidavit, as affidavits must be sworn to or affirmed by persons who 
are not parties to the petition and who have direct personal knowledge of the event and circumstances, the 
declaration will not be considered evidence and will not be given any evidentiary weight. It is also noted that 
Form ETA 750, Part B and the beneficiary's declaration maintains that Susan's Hair Salon employed the 
beneficiary from January 1991 until December 1998 at sixteen hours per week. However, no evidence was 
provided of this employment. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. 
Without corroborative evidence that the beneficiary possessed the required experience and license as listed on 
the Form ETA 750, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 
1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.