dismissed EB-3 Case: Dentistry

rdentjfying data deleted to 
pmven t clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: LIN 04 037 52722 Office: NEBRASKA SERVICE CENTER Date: MAR 1 0 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. 9 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. 
~bbert P. Wiemann, Director 
Administrative Appeals Office 
LIN 04 037 52722 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal from a denial of counsel's motion to reopen 
or reconsider his decision. On June 24, 2004, the director denied the petition, finding the evidence did not 
establish the petitioner's ability to pay the proffered wage continuously from the priority date to the present. 
On July 23, 2004, counsel filed a motion to reopen or reconsider, which the director denied on September 13, 
2004, affirming his prior decision. The appeal will be dismissed. 
The petitioner is a dental office. It seeks to employ the beneficiary permanently in the United States as a 
dental assistant. As required by statute, a Form ETA 750, Application for Alien Employment Certification, 
approved by the Department of Labor, accompanies 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. The director denied the petition accordingly. 
On appeal, counsel submits a brief and does not supplement the evidence submitted previously. 
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 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 
204.5(d). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $1 1.50 per hour ($23,920 per year). 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the 
petition, the petitioner claimed to have been established in 2000, to have a gross annual income of $208,363, 
and to currently employ one worker. According to the tax returns in the record, the petitioner's fiscal year 
lasts from January 1 to December 3 1. On the Form ETA 750B, signed by the beneficiary on April 27, 2001, 
the beneficiary did not claim to have worked for the petitioner. 
With the petition, counsel submitted the following documents pertinent to its ability to pay the proffered 
wage: 
Counsel's G-28; 
An original certified ETA 750; and, 
The petitioner's Form 1 120s for 2001 and 2002. 
On March 19,2004, the director issued a Request for Evidence (RFE) seeking additional evidence pertinent to 
that ability. 
In response, the petitioner submitted: 
LIN 04 037 52722 
Page 3 
The petitioner's profit & loss statement for 2003; and, 
An incomplete batch drawn from the petitioner's monthly business bank statements for February 1, 
2002, to November 30,2003. 
The director denied the petition on June 24,2004, finding that the evidence submitted with the petition and in 
response to its RFE did not establish that the petitioner had the continuing ability to pay the proffered wage 
beginning on the priority date. 
With the motion to reopen or to reconsider, counsel submitted, pertinent to that ability: 
The petitioner's monthly bank statements covering February 1,2002 to November 30,2003; ' and, 
An internally produced profit and loss statement for 2003. 
On motion, counsel asserted that the bank statements submitted in response to the RFE reflect an average 
monthly balance of more than $19,000, almost as much as the proffered wage ($23,920). Further, counsel 
asserted that the petitioner's profit and loss statement for 2003 reflects a total [net] profit of $50,201, which 
exceeds the yearly proffered wage. Counsel asserts that for 2002, the petitioner maintained a monthly cash 
balance of $10,65 1, which is more than the monthly proffered wage of $1,993.33. 
The director granted the motion to reopen but affirmed his prior decision. The director noted the petitioner's 
net income from its Form 1120s for 2002 showed the petitioner's net income for 2002 was -$19,644, "with a 
cash asset of $2,366." The director found that the petitioner's monthly bank statements did indicate a 
monthly balance of approximately $19,000, but that the statements were already reflected in Schedule L of 
the petitioner's tax returns, and the balances "appear to be the same funds brought forward from month to 
month." 
On appeal, counsel asserts that the $10,65 1 average monthly balance the petitioner maintained in its business 
bank account for 2002 would leave the petitioner $8,657 had the petitioner paid the beneficiary $1,993.33, 
which is the monthly proffered wage. 
At the outset, this office notes that the profit-and-loss statement for 2003 that the petitioner submitted in 
response to the RFE is not an audited financial statement. Counsel's reliance on unaudited financial records is 
misplaced. The regulation at 8 C.F.R. $ 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. 
As there is no accountant's report accompanying these statements, the AAO cannot conclude that they 
represent audited statements. Unaudited financial statements are the representations of management. The 
unsupported representations of management are not reliable evidence and are insufficient to demonstrate the 
ability to pay the proffered wage. 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (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 
1 
It is noted the petitioner's monthly bank statements, when submitted with counsel's motions, included one for 
September 2002, but which is not among the batch submitted on appeal but that purports to cover the same period. The 
September 2002 statement lists an overdraft charge, the only one for the period. 
LIN 04 037 52722 
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employed and paid the beneficiary the full proffered wage during the period from the priority date through 
2003. 
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, 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), uff'd, 703 F.2d 571 (7th Cir. 1983). 
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 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 incomefigures 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 demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $23,920 per year from the priority date. 
In 2002, the Form 1120s stated net income2 of -$19,644. 
In 2001, the Form 1 120s stated net income of $3 1,456. 
Therefore, the petitioner had sufficient net income to pay the proffered wage for the year 200 1. However, the 
petitioner did not have sufficient net income to pay the proffered wage for the year 2002. 
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. We reject, however, the idea that the petitioner's total assets should have 
been considered in the determination of the ability to pay the proffered wage, which counsel appears to 
suggest from his assertions based upon the petitioner's unaudited profit and loss statement for 2003. 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. 
2 
 Ordinary income (loss) from trade or business activities as reported on Line 21. 
LIN 04 037 52722 
Page 5 
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 
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 current 
assets during the year 2002 were $6,021. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage as 
of the priority date through an examination of wages paid to the beneficiary, or its net income or net current 
assets. 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
ability to pay the proffered wage from the priority date. Counsel states that the average monthly balance the 
petitioner maintained in its business bank account for 2002 showed $10,65 1, which is more than sufficient to 
pay the monthly proffered wage of $1,993.33. 
Counsel's 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. $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 will be considered below in determining the petitioner's net current assets. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. 
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. 
$ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
3 
According to Barron 's Dictionary of Accounting Terms 117 (31d 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.