dismissed EB-3 Case: Culinary

identifying data deleted to 
preyeor ciearly unwarranted 
i:a.i2sf~c QB pe~so~ay privacy 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 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. tj 1153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
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 church. It seeks to employ the beneficiary permanently in the United States as a cook. 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. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(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 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: 
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 tlus ability at the time the priority date is established and continuing until the 
beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profitJloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. $ 204.5(d). The priority date in the instant 
petition is April 27, 2001. The proffered wage as stated on the Form ETA 750 is $13.01 per hour, which 
amounts to $27,060.80 annually. On the Form ETA 750B, signed by the beneficiary on April 26, 2001, the 
beneficiary claimed to have worked for the petitioner beginning in November 1998 and continuing through 
the date of the ETA 750B. The ETA 750 was certified by the Department of Labor on August 23,2002. 
The 1-140 petition was submitted on December 9, 2002. On the petition, the petitioner claimed to have been 
established on November 16, 1998, to currently have one employee and to have a gross annual income of 
$213,741.00. The item on the petition for net annual income was left blank. With the petition, the petitioner 
submitted supporting evidence. 
In a request for evidence (WE) dated November 14,2003, the director requested additional evidence relevant 
to the petitioner's continuing ability to pay the proffered wage beginning on the priority date. 
In response to the WE, the petitioner submitted additional evidence. The petitioner's submissions in response 
to the WE were received by the director on February 6,2004. 
Page 3 
In a decision dated July 22, 2004, the director determined that the evidence did not establish that the petitioner 
had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence, and denied the petition. 
On appeal, counsel submits a brief and additional evidence. On appeal counsel states that the petitioner is a 
congregation which is part of a larger parent organization which is the American Baptist Churches of 
Massachusetts. Counsel states that the parent organization has ample financial resources and that the 
petitioner relies financially upon its parent organization. 
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 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). 
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 
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. $ 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. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, 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 
instant case, on the Form ETA 750B, signed by the beneficiary on April 26,2001, the beneficiary claimed to have 
worked for the petitioner beginning in November 1998 and continuing through the date of the ETA 750B. 
The record contains multiple copies of a Form 1099-MISC Miscellaneous Income statement for the beneficiary 
for 2003. No Form 1099-MISC statements for other years are in the record, nor does the record contain copies of 
any Form W-2 Wage and Tax Statements of the beneficiary. The relationship of the non-employee compensation 
shown on the Form 1099-MISC for 2003 to the proffered wage is shown in the table below. 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage. 
200 1 not submitted $27,060.80 no information 
2002 not submitted $27,060.80 no information 
2003 $27,060.80 $27,060.80 $0.00 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in the years 
2001 and 2002. For the year 2003, the Form 1099-MISC purports to show non-employee compensation to 
the beneficiary in exactly the amount of the proffered wage. Without corroborating evidence, that Form 
1099-MISC is insufficient to establish the petitioner's ability to pay the proffered wage during 2003. No copy 
of the beneficiary's Form 1040 U.S. Individual Income Tax Return for 2003 was submitted in evidence, and 
no paycheck stubs or other pay statements of the beneficiary were submitted in evidence. Nor did the 
petitioner submit any other evidence which might confirm that the beneficiary was actually paid the 
compensation stated on the Form 1099-MISC. A Form 1099-MISC usually contains less information than a 
Form W-2 Wage and Tax Statement, which normally has information on amounts withheld for various federal 
and state taxes, as required by law. Moreover, a Form W-2 Wage and Tax Statement constitutes a 
representation by the employer that the amounts withheld for those taxes have been transmitted to the 
appropriate federal and state tax authorities. The Form 1099-MISC in the record in the instant case shows no 
withholding amounts of any type, and accordingly it makes no such representations. 
It may be noted that on the ETA 750B the beneficiary claimed to have been employed by the petitioner 
beginning in 1998. The record does not explain the absence of Form W-2 Wage and Tax Statements showing 
employee compensation to the beneficiary for each of the years at issue in the instant petition, nor the absence 
of any evidence pertaining to the beneficiary's compensation for the years prior to 2003. 
The Board of Immigration Appeals, in Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988), has stated, "It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice." The record contains no explanation for the inconsistencies in 
the evidence noted above. 
As another 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 for a given year, 
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 COT. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' 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), aff'd., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service 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 Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The record in the instant case contains no copies of any income tax returns for the petitioner or for any parent 
organization. The petitioner is a church, which counsel states is tax exempt under section 501(c)(3) of the 
Internal Revenue Code. 
The record contains a copy of unaudited financial statements for the petitioner for the years 2001 and 2002. 
Unaudited financial statements are not persuasive evidence. According to the plain language of 8 C.F.R. 
$ 204.5(g)(2), where the petitioner relies on financial statements as evidence of a petitioner's financial 
condition and of its ability to pay the proffered wage, those statements must be audited. Unaudited statements 
are the unsupported representations of management. The unsupported representations of management are not 
persuasive evidence of a petitioner's ability to pay the proffered wage. 
Page 5 
Counsel asserts in his brief that the petitioner is one of 289 congregations within a parent organization which is 
the American Baptist Churches of Massachusetts (TABCOM). Counsel states that the petitioner relies financially 
upon its parent organization, TABCOM. Counsel submits copies of audited financial statements of TABCOM as 
evidence on appeal. 
The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). No evidence in the record supports counsel's 
assertion that the petitioner is a Baptist church, nor that the petitioner is a congregation within the American 
Baptist Churches of Massachusetts. Counsel submits on appeal a copy of a letter dated September 12,2001 to the 
American Baptist Churches in the U.S.A. from the Internal Revenue Service. That letter confirms the tax exempt 
status of American Baptist Churches in the U.S.A. However, nothing in the record ties that letter to the petitioner. 
The petitioner's federal identification number as shown on the Form 1099-MISC statements of the beneficiary is 
a number ending in the three digits "334." But that federal identification number does not appear on the letter 
from the Internal Revenue Service to the American Baptist Churches in the U.S.A., which is presumably a 
separate corporation from its member congregations. Moreover, the petitioner's name, '- 
~so contains no indication that the petitioner is a Baptist church. 
For the foregoing reasons, the evidence fails to establish that the petitioner is a member congregation within the 
American Baptist Churches of Massachusetts (TABCOM) or within the American Baptist Churches in the U.S.A. 
Accordingly, the audited financial statements of TABCOM may not be relied upon as evidence of the petitioner's 
ability to pay the proffered wage. 
In his decision, the director analyzed the financial statements of the petitioner in the record. The director noted 
that according to those statements, the petitioners total expenses for wages were in the amount of $1 1,389.00 for 
all employees. The director found that that figure failed to establish the petitioner's ability to pay the proffered 
wage in 2002. The director also found that the record failed to establish the petitioner's ability to pay the 
proffered wage as of the date of filing. The director's decision to deny the petition was correct, based on the 
evidence then in the record. For the reasons discussed above, the assertions of counsel on appeal and the 
evidence submitted for the first time on appeal fail to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.