dismissed EB-3 Case: Culinary

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
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 u.S. Citizenship 
and Immigration 
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PUBLIC COPY 
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Date: OCT 1 3 2006 
SRC 04 209 50662 
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. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Nursing Home. It seeks to employ the beneficiary permanently in the United States as a 
Foreign Food Specialty Cook. 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 (DOL). 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. Thus, the director denied the 
petition. 
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 April 23, 2005 denial, the single issue in this case is whether 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. fj 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 slulled 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. 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 petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 was accepted for processing by any office within the employment 
system of the DOL. See 8 CFR fj 204.5(d). The petitioner must also demonstrate that, on the priority date, the 
beneficiary had the qualifications stated on its Form ETA 750 as certified by the DOL and submitted with the 
petition. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001.' The proffered wage as stated on the Form ETA 
750 is $19 per hour, 40 hours per week or $39,520 annually. The Form ETA 750 states that the position 
requires two years of experience in the proffered position. 
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 
1 
 In her April 23,2005 denial, the director erred and indicated that November 27,2001 was the priority date. 
pertinent evidence in the record, including new evidence properly submitted on appeal.2 Relevant evidence in 
the record includes: 
Form 1120s for 2002, which indicates that this is 
the final tax return filed for Suncoast Manors, Inc.; 
a copy of 4J's, Inc. Form 1120, U.S. Corporate Income Tax Return, for 2002, which 
indicates that this is the initial tax return filed for 4J1s, Inc.; 
a copy of 4J's, Inc. Form 1 120 for 2003; 
a copy of 4Jts, Inc. Form 1120 for 2004; 
copies of what appear to be paychecks written on 
checking account made out to the beneficiary during January through April 2005 which, 
before taxes, total $5200; 
copies of 4Jts, Inc. checking account statements for January through A ri12 
dated MBNA America Account Statement for - 
. which indicates that the account has a $32,442 line of credit 
available. 
The record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
Inc. is structured as a C corporation. On the petition, the petitioner claimed to have been established on 
August 22, 200 1, to currently employ 1 worker, to have a gross annual i 
annual income of $15,540. According to the tax returns in the record, 
have fiscal years which coincide with the calendar year. On the Form ETA 750B, signed by the beneficiary 
on March 7,200 1, the beneficiary did not claim to have worked for the petitioner. 
On appeal, counsel indicates that the DOL erred and based the beneficiary's wages on prevailing wages in 
New York City, rather than prevailing wages in Clearwater, Florida. Counsel also asserts that the DOL 
should have considered prevailing wages for Level 1 Institutional and Cafeteria Cooks, rather than Foreign 
Food Specialty Cook wages when determining the proffered wage. Consequently, counsel concludes that the 
petitioner need only show the ability to pay the beneficiary $15,579 in annual wages, rather than $39,520 in 
wages as indicated by the DOL on the Form ETA 750. 
2 
 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. § 103.2(a)(l). The record in this 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). 
Page 4 
Counsel also asserts that the petitioner is a sole proprietor and, as such, the individual assets of the petitioner's 
owner must be taken into account when analyzing the petitioner's ability to pay. Counsel indicates that when 
analyzing the petitioner's ability to pay during 2005, CIS should take into account that during the first months 
of 2005, the petitioner paid the beneficiary $1,300 per month. Counsel asserts that when analyzing the 
petitioner's ability to pay for various tax years, CIS should add: the petitioner's net income and current assets; 
its profits, assets, cash and inventories; or, in the alternative, its gross income, assets, cash and salaries paid. 
Counsel also asserts that CIS should consider that the beneficiary will generate additional income for the 
petitioner, when analyzing its ability to pay. Counsel also indicates that the DOL erred and considered the 
prevailing wage at the time the Form ETA 750 was issued rather than the date that it was submitted, when 
determining the proffered wage. Counsel indicates that, to avoid double taxation, the petitioner's sole 
shareholder minimized taxable income by taking net income as compensation and that that compensation 
should be considered as funds available to pay the beneficiary's wages. 
On appeal, counsel indicates further that the Form ETA 750 states that the employer will cover room and 
board expenses for the beneficiary and that the cash value of these must be factored into the petitioner's ability 
to pay the wage. Counsel asserts that the Suncoast Manor 2001 Form 1120S, Schedule L documents that 
$190,721 was available in current assets to pay the beneficiary's wage. According to counsel, $2,811 in cash, 
$10,800 in salaries paid and additional room and board expenses were also available to pay the proffered 
wage in 200 1. Counsel indicates that CIS should combine gross income for Suncoast Manor and 4J's, Inc. for 
2002 to yield $61,610 and conclude that the petitioner had the ability to pay the beneficiary's wages in 2002. 
She indicates that combined current assets for the two corporations are $215,950 for 2002 which also 
demonstrate an ability to pay. 
Counsel asserts further that the petitioner's equity line evidences that it had sufficient funds available to pay 
the proffered wage. Counsel also asserts that CIS should consider petitioner's "projected" gross income of 
over $10,000 per month in 2005 combined with its net income of $35,000 and find that the petitioner 
demonstrated the ability to pay in 2005. 
The petitioner's president asserts on appeal that CIS should take into account that the Florida economy 
weakened after the April 30, 2001 filing date and that the terrorist attacks of September 11, 2001 caused the 
economy to plummet further. She indicates further that Florida's economy picked up in 2003,2004 and 2005. 
The petitioner's president also asserts that CIS should consider the president's income from a different assisted 
living care facility which she runs, when determining the petitioner's ability to pay. The petitioner's president 
asserts that the beneficiary worked for the petitioner as a live-in employee during 2001-2004 in exchange for 
room and board and that the cash value of this compensation should be considered funds available to pay the 
proffered wage. She also indicates that in 2002 the petitioner paid a different specialty cook $13,500 and that 
these funds should be considered funds available to pay the proffered wage. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a Form 
ETA 750 establishes a priority date for any immigrant petition later based on that Form 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 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. fj 204.5(g)(2). In evaluating whether a job offer is 
realistic, 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. 612 (Reg. Comrn. 1967). 
Page 5 
Counsel's assertion that the DOL erred and considered prevailing wages for New York City, rather than 
prevailing wages for Cleanvater, Florida when determining the proffered wage is not accurate. The Form 
ETA 750 documents that the DOL arrived at the annual proffered wage of $39,520 by considering prevailing 
wages for the proffered position in the area of 1735 Jeffords Street, Cleanvater, Florida. 
The DOL cover letter for the Form ETA 750 listed a New York City address only because counsel for 
Counsel's assertion that CIS should consider DOL prevailing wages for a Level 1 Institutional and Cafeteria 
Cook, instead of the proffered wage for a Foreign Food Specialty Cook as determined by the DOL is also 
incorrect. pplied for labor certification for the position of Foreign 
Food Specialty Cook who prepares and cooks "ethnic cuisine such as adobe, menudo, lumpia shanghai, pancit 
banton, relino bangus", who portions food and plans menus for nursing facility members, etc. and it is that 
position which the DOL has certified as a skilled worker position for which qualified workers are not 
available in the United States, not the position of Level 1 Institutional and Cafeteria Cook. Accordingly, the 
Foreign Food Specialty Cook proffered wage of $39,520 as established by the DOL is the wage for which the 
petitioner must demonstrate the ability to pay. 
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 this 
case, the petitioner has not provided evidence to establish that it employed and paid the beneficiary the full 
proffered wage from the priority date in 2001 or during any period subsequent to that. However, the record 
indicates that the petitioner did pay the beneficiary a gross salary of $5200 for work performed on its behalf 
from January through April 2005. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during the relevant period, CIS will next examine the net income figure reflected on the 
petitioner's federal income tax returns, without consideration of depreciation or other expenses, contrary to 
counsel's assertions. 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, 719 F. Supp. 532 (N.D. Texas 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), afld, 
703 F.2d 571 (7th Cir. 1983). Also contrary to counsel's assertions, reliance on the petitioner's gross sales, 
gross profits, "projected" gross income and wage expense is misplaced. Showing that the petitioner's gross 
sales and profits 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., Inc. 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 
Page 6 
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. 
The tax returns in the record demonstrate the following concerning the petitioner's ability to pay the proffered 
salary of $39,520 from the priority date onwards: 
used when analyzing the petitioner's ability to pay in 2002, as the record indicates that 
. became the 
 during that year. 
For 2003, the Form 1 120 fo 
 tates a net income (loss) of $12,863. 
For 2004, the Form 1 120 fo 
 tates a net income (loss) of $21,183. 
Thus, for the years 2001 through 2004, the petitioner did not have sufficient net income to pay the proffered 
wage of $39,520.' 
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. Thus, these assets will 
not be considered part of the petitioner's assets available to pay the proffered wage, contrary to counsel's 
assertions. 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, 
also contrary to counsel's assertions. As such, 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 liabilitie~.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. 
 Its year-end current 
3 
 Ordinary income (loss) from trade or business activities as reported on Line 21 of the Form 1120s. 
4 
 Ordinary income (loss) fiom trade or business activities as reported on Line 28 of the Form 1120. 
'It is noted that where an S corporation has income from sources other than a trade or business, net income is 
found on lines 1- 6 of Schedule K, Shareholders' Shares of Income, Credits, Deductions, etc., of the Form 
1120S, rather than line 21 of the Form 1120s. In this instance, there is no indication in the record that 
Suncoast Manors has income from sources other than a trade or business. 
According to Barron's Dictionary of Accounting Terms 1 17 (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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
Page 7 
liabilities are shown on lines 16 through 18 of Schedule L. 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. 
et current assets during 2001 were $2,811. 
2002 were $3,250. 
successor in interest, filed a Schedule L which 
was blank, except for a line drawn through the schedule to indicate that it was purposely 
left blank. 
--. ---- 
et current assets during 2003 were $4,010. 
et current assets during 2004 were $4,900. 
Thus, for the years 2001 through 2004, the petitioner did not have sufficient net current assets to pay the 
proffered wage of $39,520. 
The record indicates that the petitioner paid the beneficiary a gross salary of $5,200 during January through 
April 2005. The record closed shortly after this with the filing of the appeal. If the proffered wage were 
prorated, that would yield a salary of $13,173 for four months. The record does not include any 2005 tax 
return for the petitioner such that CIS might determine whether the actual wages paid the beneficiary, if 
supplemented by net income or net current assets might be sufficient to cover the remaining balance of the 
prorated proffered wage for the initial four months of 2005. Counsel did indicate that the petitioner's 
"projected" net income for 2005 was $35,000. However, there is no documentation in the record to support 
this projection. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, the petitioner 
has not demonstrated the ability to pay the proffered wage during 2005. 
In sum, from the date the Form ETA 750 was accepted for processing by the DOL on April 30, 2001, the 
petitioner has not established that it had the continuing ability to pay the beneficiary the proffered wage 
through an examination of wages paid to the beneficiary, an examination of its net income or an examination 
of net current assets. 
Finally, where the petitioner has not demonstrated sufficient net income or net current assets to pay the 
proffered salary, CIS may consider the overall magnitude of the entity's business activities and the totality of 
the circumstances concerning a petitioner's financial performance, when determining its ability to pay the 
proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter of Sonegawa, the 
Regional Commissioner considered an immigrant visa petition that had been filed by a small "custom dress 
and boutique shop" on behalf of a clothes designer. The district director denied the petition after determining 
that the beneficiary's annual wage of $6,240 was considerably more than the petitioner's net profit of $280 
for the year of filing. On appeal, the Regional Commissioner considered an array of factors beyond the 
petitioner's net profit, including financial data, the petitioner's reputation and clientele, its number of 
employees, future business plans, news articles, and explanations of the petitioner's temporary financial 
difficulties, The Regional Commissioner looked beyond the petitioner's inadequate net income for the year 
of filing and found that the petitioner's expectations of continued business growth and increasing profits were 
reasonable. Id, at 615. Based on an evaluation of the totality of the petitioner's circumstances, the Regional 
Commissioner determined that the petitioner had established the ability to pay the beneficiary the proffered 
wage. 
Page 8 
Accordingly, CIS may, in its discretion, consider evidence relevant to a petitioner's financial ability that falls 
outside of a petitioner's net income and net current assets. CIS may consider such factors as the number of 
years that the petitioner has been doing business, the established historical growth of the petitioner's business, 
the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the 
petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an 
outsourced service, or any other evidence that CIS deems to be relevant to the petitioner's ability to pay the 
proffered wage. In this case, however, the only relevant forms of evidence provided by the petitioner are the 
Form 1120s for 2001 and 2002 for and the Form 1120 for 2002, 2003 and 2004 for 4J's, 
Inc. This is not sufficient evidence to establish that the petitioner has met all of its obligations in the past or 
to establish its historical growth. In addition, such evidence is not sufficient to establish whether unusual 
circumstances exist in this case to 
 establish whether 2001-2004 were 
uncharacteristically unprofitable years for 
 its successor in interest. 
Any reliance on the balances in the petitioner's checking account or its ''cash on hand" as evidence of 
additional funds available to pay the wage is misplaced. First, bank checking account statements are not 
among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's 
ability to pay a proffered wage. While this regulation allows additional evidentiary material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. 9 
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 or as "cash on hand" somehow denote additional available funds that were not reflected on its 
tax return, such as the petitioner's net income or the cash specified on Schedule L which was duly considered 
when reviewing the petitioner's net current assets. Likewise, the cash value of 4J's, Inc. and Suncoast 
Manors' inventories was factored into net current assets and CIS shall not double count this asset when 
calculating the petitioner's funds available to pay the proffered wage. It is noted that both counsel and the 
director erred and listed "cash on hand" and inventories as representing separate additional funds available to 
pay the proffered wage. 
Any assertion that the petitioner's president is a sole proprietor and that, consequently, the president's 
individual assets or income from other trade or business may be considered when 
ability to pay is mis laced. The record shows that during 2001 through 2004 
 and its 
successor in interest 
 filed corporate tax returns. Thus, the petitioner is 
treated as such. Because a corporation is a separate and distinct legal entity fiom its owners and shareholders, 
the 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. See Matter of Aphrodite Investments, Ltd., 17 
I&N Dec. 530 (Cornm. 1980). In a similar case, the court in Sitar v. Ashcroj, 2003 WL 22203713 (D.Mass. 
Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. 9 204.5, permits [CIS] to consider the 
financial resources of individuals or entities who have no legal obligation to pay the wage." 
Counsel's assertion that the beneficiary will generate income such that the petitioner will have sufficient funds 
to cover the proffered wage is misplaced. Counsel cites Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 
(D.C. Cir. 1989) in support of this assertion. While part of the Masonry decision mentions the ability of the 
beneficiary to generate income, the holding in the case is based on other grounds. Further, in this instance, 
neither counsel nor the petitioner provided any detail or documentation to explain how the beneficiary's 
employment as a Foreign Food Specialty Cook will significantly increase profits for a Nursing Home. It 
Page 9 
cannot be found that this hypothesis outweighs the evidence presented in the corporate tax returns reviewed 
earlier. 
Counsel's claim that the DOL erred and looked to prevailing wages at the time the Form ETA 750 was 
certified, rather than the time of filing when determining the proffered wage is incorrect. The Form ETA 750 
as well as the DOL Final Determination cover sheet attached to the Form ETA 750 both document that the 
DOL used the filing date of April 30, 2001 when calculating the proffered wage on the certified Form ETA 
750 in the record. In the April 23, 2005 denial, the director erred and listed November 27, 2001, the date on 
which the DOL issued its Final Determination regarding the Form ETA 750, as the priority date. The DOL 
did not make a similar error when calculating the proffered wage. 
Counsel's assertion that the petitioner's sole shareholder minimized taxable income by talung net income as 
compensation is not supported by the record. The sole shareholder failed to provide any Form W-2, Wage 
and Tax Statement, or other documentation to verify that she received income as compensation from the 
petitioner's business during the relevant period of analysis. Further, there is no notarized, sworn statement in 
the record which attests to the specific amount of compensation that the sole shareholder received previously 
and the amount that she would forego to cover the beneficiary's wage in support of counsel's suggestion that 
CIS should consider such compensation as funds available to pay the proffered wage. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craji of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel's suggestion that the Form ETA 750 indicates that the petitioner is obliged to cover room and board 
expenses and that, consequently, the cash value of such should be deducted from the proffered wage when 
determining the funds that the petitioner must have available to pay the beneficiary is misplaced. The Form 
ETA 750 states that the required wage for the beneficiary is $19 per hour, 40 hours per week or $39,520 
annually. No additional compensation of any type is listed on the Form ETA 750. The petitioner must show 
the ability to pay the full proffered wage from the priority date onwards. See 8 C.F.R. 9 204.5(g)(2). 
Any assertions that CIS should place a cash value on the room and board provided the beneficiary during 
2001 through 2005 and consider that amount as funds available to pay the proffered wage are also misplaced. 
First, the petitioner has not provided any documentation to support its assertions that the beneficiary received 
room and board in exchange for work done on behalf of the petitioner during 2001 through 2005 or any 
documentation on the market value of a worker's room and daily meals in the petitioner's facility. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Second, the petitioner has indicated that its intent is 
that the proffered position be a live-in position at its Assisted Living Care Facility / Nursing Home. Thus, the 
petitioner would continue to expend any funds needed to cover room and board for an employee, in addition 
to the proffered wage required by the Form ETA 750, should the petition be approved. Thus, even if the 
beneficiary's live-in worker status for the relevant period of analysis were documented, and if the precise cost 
of room and board for an individual employee were also sufficiently documented, this amount could not be 
counted as additional funds available to pay the proffered wage. 
Counsel's assertion that CIS should add in bank lines of credit which are available to Dr. Roberto Becker 
Rivera d/b/a 4J's, Inc. when determining the petitioner's ability to pay the proffered wage is misplaced. In 
analyzing a petitioner's ability to pay the proffered wage, CIS will not augment the petitioner's income by 
adding in its credit limits or lines of credit. A "line of credit" is a bank's unenforceable commitment to make 
loans to a particular borrower up to a specified maximum during a specified time period. A line of credit is 
not a contractual or legal obligation on the part of the bank. See Barron's Dictionary of Finance and 
investment Terms, 45 (1998). Since the line of credit is a "commitment to loan" and not an existent loan, the 
petitioner has not established that the unused funds from the line of credit were available at the time of filing 
the petition. Yet, a petitioner must establish eligibility at the time of filing; a petition may not be approved 
based on a new set of facts that arise on a date subsequent to the priority date by which the petitioner appears 
to become eligible. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). Further, the record includes 
only a partial copy of an undated MBNA America Account Statement for Dr. Roberto Becker Rivera d/b/a 
4Jts, Inc. which indicates that the account has a $32,442 line of credit available. As such, it is not accurate to 
state that the record includes any documentary evidence that the petitioner had a credit line available during 
the relevant period of analysis. 
Contrary to the assertions of counsel, net current assets and net income may not be combined when 
determining a petitioner's ability to pay the proffered wage. This is because net income and net current assets 
are not two separate sets of funds available to pay the wage. Rather, net income and net current assets 
represent two different ways to view the funds available to the petitioner. Net income views the petitioner's 
funds for the year retrospectively, and net current assets view the petitioner's funds for the year prospectively. 
As such, a net income that is greater than the amount of the proffered wage indicates that a petitioner could 
have paid the beneficiary the wages during the year out of its income. Net current assets that are greater than 
the proffered wage indicate that the petitioner anticipates receiving roughly one-twelfth of that amount each 
month, and that it anticipates being able to pay the proffered wage out of those funds.' 
Any assertion that CIS must consider that the terrorist attacks of September 11, 2001 caused the petitioner's 
business to suffer financially is misplaced. The record contains no evidence that specifically connects a 
decline in the petitioner's business to the events of September 11, 2001. A mere assertion that the petitioner's 
business was adversely affected by the September 11, 2001 attacks cannot by itself demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date. Unsupported 
assertions are not evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BLA 1980). 
Similarly, the claim that CIS must take into account the undocumented assertion that Florida's economy 
experienced a downturn immediately following the April 2001 filing such that the petitioner's business 
suffered a financial setback at that time is misplaced. In addition, even if the record included documentation 
to support these assertions, the petitioner would still have to show that its particular circumstances were 
affected in such a way that - had these events not occurred - it likely would have been able to pay the 
proffered wage. Going on record with assertions that are not supported by documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
7 
In her April 23, 2005 denial, the director erred and indicated that it was appropriate to add net income and 
net current assets when calculating funds relating to the petitioner's ability to pay the proffered wage. 
Page 11 
The suggestion that the petitioner's business improved in 2003 and 2004 and that that improvement is 
sufficient to demonstrate the petitioner's ability to pay the proffered wage from the priority date onwards is 
also misplaced. A slight improvement in the petitioner's business is documented by its 2003 and 2004 tax 
returns. However, the returns do not demonstrate enough of an improvement to lead CIS to conclude that the 
petitioner's modest financial performance in previous years was somehow uncharacteristic of its business. 
The 2003 and 2004 returns do not even demonstrate enough of an improvement to show that the petitioner 
could have paid the proffered wage during those years. 
The claim that CIS must consider the undocumented assertion that the beneficiary would replace a different 
specialty cook to whom the petitioner paid $13,500 during 2002 and that, consequently, that $13,500 should 
be considered additional funds available to pay the proffered wage during 2002 is also misplaced. The 
petitioner provided no Form W-2 or other documentation veri@ing that it paid a different specialty cook $13,500 
to cany out the duties of the proffered position during 2002. The petitioner also failed to provide a notarized, 
sworn statement in which it attests: that it is replacing its former specialty cook, specifying that employee's name, 
with the beneficiary; that it paid a specified amount to this employee; and, that it requests that CIS consider that 
amount as additional hds available to pay the beneficiary's proffered wage. Going on record with assertions 
that are not supported by documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Mutter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Thus, 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. 
fj 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.