dismissed EB-3 Case: Dry Cleaning

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COiY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
- 
IN RE: 
Date: 
APR 02 28n 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3) 
ON BEHALF OF PETITIONER: 
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 ~ppkals Office 
Page 2 
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 dry cleaner and laundry. It seeks to employ the beneficiary permanently in the United 
States as a dry cleaner. As required by statute, the petition is accompanied by a Form ETA 750, Application 
for Alien Employment Certification, approved by the Department of Labor. The director determined that, 
based on the petitioner's tax returns for tax years 2002 to 2004, 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 also determined that the petitioner submitted an insufficient letter of previous work 
experience and, thus, had not established that the beneficiary was qualified to perform the duties of the 
proffered position. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's September 2, 2005 denial, the two issues in this case are whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence, and whether the petitioner established that the beneficiary is qualified to 
perform the duties of the position. The AAO will examine the petitioner's ability to pay the proffered wage, 
and then will examine the beneficiary's qualifications to perform the duties of the proffered position. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The regulation 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
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 C.F.R. 
5 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Certification as certified by the U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Comm. 1977). 
Page 3 
Here, the Form ETA 750 was accepted on April 27,2001. The proffered wage as stated on the Form ETA 750 
is $37,500 per year. 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 
pertinent evidence in the record, includin new evidence properly submitted upon appeal1. On appeal, 
counsel submits an affidavit from 
 the petitioner's president, along with a copy of a promissory 
note between the petitioner's owner and a third party in the amount of $40,000 and a copy of the repayment 
of the note to the petitioner's owner on September 30,2005. In his affidavit, states that he had used 
funds to support the petitioner in the past and that if the petitioner needed additional funds, 
d hds available that he had lent to a third part on October 1, 2001. stated that he could 
have recalled the loan anytime after March 3 1,2002. 
 states that the petitioner has thus, always had 
access to another source of funds to meet its financial obligations. 
Other relevant evidence in the record includes the petitioner's IRS Forms 1120s for tax years 2002,2003, and 
2004 and bank statements for the petitioner's business checking account with and 
for the months January 2005 to June 2005. The record does not contain any other evidence 
relevant to the petitioner's ability to pay the wage. 
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 on February 23, 1995, to have a gross annual income 
of $321,205, and to have six employees. According to the tax returns in the record, the petitioner's fiscal year 
is based on a calendar year. On the Form ETA 750B, signed by the beneficiary on November 26, 2003, the 
beneficiary did not claim to have worked for the petitioner. 
On appeal, counsel asserts that the additional evidence submitted to the record establishes that the petitioner 
has always had the ability to pay the proffered wage as of the 2001 priority date. Counsel notes tha 
is the petitioner's sole shareholder and has sufficient funds to establish the petitioner's ability the to pay 
proffered wage. Counsel also notes that the petitioner was not provided with any opportunity to rebut the 
director's concerns prior to the issuance of the director's denial of the instant petition. 
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 offa is realistic, Citizenship and Immigration Services (CIS) requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the 
1 
 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 AAO notes that the copies of the petitioner's corporate tax returns submitted to the record are 
incomplete, as they do not contain all accompanying attachments and schedules. 
Page 4 
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). 
In the initial petition, the petitioner submitted bank statements for two bank accounts for the months January 
to June 2005. Although neither counsel nor the director commented on these documents, the AAO notes that 
reliance on the balances in petitioners' 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. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner employed and paid the beneficiary during that period. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
the evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, the petitioner submitted no evidence to the record of any wages that it paid the beneficiary. It has 
not established that it employed and paid the beneficiary the full proffered wage during any relevant 
timeframe including the period from the priority date in 2001 or subsequently. Thus, the petitioner has to 
establish its ability to pay the entire proffered wage as of the 2001 priority date and to the present. 
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, 71 9 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), afd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's 
gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages 
in excess of the proffered wage is insufficient. 
In K C.P. Food Co., 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 
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. 
It is noted that the record does not contain the petitioner's tax return for tax year 2001. The priority date of 
April 27,2001 is contained in tax year 2001. Without an examination of the petitioner's tax return for tax year 
2001, the AAO cannot determine whether the petitioner had sufficient net income to pay the proffered wage 
of $37,500. 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. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comrn. 1971). Thus, the petitioner 
cannot establish its ability to pay the proffered wage based on its net income. Nevertheless, the AAO, for 
illustrative purposes, will examine the petitioner's tax returns for tax years 2002 ,2003, and 2004 with regard 
to the petitioner's net income and net current assets. 
The petitioner's tax returns for 2002 to 2004 demonstrate the following financial information concerning the 
petitioner's ability to pay the proffered wage of $37,500 per year fiom the priority date: 
In 2002, the Form 1120s stated net income3 of $3,078. 
In 2003, the Form 1 120s stated net income of $3 1,380. 
In 2004, the Form 1120s stated net income of $23,720. 
Therefore, for the years 2002 to 2004, the petitioner did not have suficient net income to pay the proffered 
wage of $37,500. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business, including real property that counsel asserts should be considered. Those depreciable 
assets will not be converted to cash during the or- 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 liabilitie~.~ Otherwise, they cannot properly be considered in the determination of the petitioner's 
Where an S corporation's income is exclusively fiom a trade or business, CIS considers net income to be the 
figure for ordmary income, shown on line 21 of page one of the petitioner's IRS Form 1120s. However, where 
an S corporation has income, credits, deductions or other adjustments from sources other than a trade or business, 
they are reported on Schedule K. If the Schedule K has relevant entries for additional income, credits, deductions 
or other adjustments, net income is found on line 23 (1997-2003) line 179 (2004-2005) line 18 (2006) of Schedule 
K. See Instructions for Form 1120S, 2006, at http://www.irs.gov/pub/irs-pdfli1120s.pdf (accessed March 22, 
2007) (indicating that Schedule K is a summary schedule of all shareholder's shares of the corporation's 
income, deductions, credits, etc.). Because the petitioner had additional adjustments or deductions shown on its 
Schedules K for tax years 2002, 2003, and 2004, the petitioner's net income is found on Schedule K of its tax 
returns. 
4 
 The director in his decision only examined the petitioner's current assets. This is an incorrect analysis of 
the petitioner's net current assets. The AAO will examine the petitioner's current assets and current liabilities 
to amve at the petitioner's net current assets. 
Page 6 
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 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. 
As noted previously, the record does not contain the petitioner's 2001 corporate tax return. Therefore the 
AAO cannot examine the petitioner's net current assets for 2001 to establish whether the petitioner had 
sufficient net current assets to pay the proffered wage of $37,500. Thus, the petitioner cannot establish its 
ability to pay the proffered wage as of the priority date based on its net current assets. See Matter of Katigbak, 
14 I&N Dec. 45, 49 (Cornm. 1971). However, for illustrative purposes, the AAO will examine the 
petitioner's tax returns for tax years 2002 to 2004 to see whether it had sufficient net current assets to pay the 
proffered wage during these years. 
The petitioner's net current assets during 2002 were -$1,246. 
The petitioner's net current assets during 2003 were 42,578. 
The petitioner's net current assets during 2004 were -$3,620. 
Therefore, for the years 2002 to 2004, the petitioner did not have sufficient net current assets to pay the 
proffered wage. 
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 
continuing ability to pay the proffered wage fiom the priority date. Counsel states that s the 
sole shareholder of the petitioner. in an affidavit submitted on appeal states that he is the 
petitioner's president and that he had additional funds available to pay the proffered wage in tax year 2001 
which he subsequently lent to a third party on October 2001. 
 also provided bank records to 
establish that he had received payment of the outstanding loan with interest during 2005. However, the 
assertions of both and counsel are not persuasive. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Cornm. 1972)). Although counsel states that the petitioner's owner is the sole shareholder of the petitioner, 
and Mr. Duka states that he is the president and sole shareholder of the petitioner, as noted previously, the 
petitioner's federal income tax returns contain no form, schedule or statement that identifies any individual as 
5~ccording to Barron's Dictionary of Accounting Terns 11 7 (3* 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. 
Page 7 
sole owner. In fact, the petitioner's tax returns indicate on page 1, part G, of Forms 1120S, that the petitioner 
had two shareholders at the end of each tax year between 2002 and 2004. 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." 
Furthermore, although sole shareholders of S corporation do have some flexibility in the allocation of the 
profits of the corporation in areas such as officer compensation, the record is not clear that the personal assets 
of the petitioner's owner could be utilized to pay the proffered wage. CIS may not "pierce the corporate veil" 
and look to the assets of the corporation's owner to satisfy the corporation's ability to pay the proffered wage. 
It is an elementary rule that a corporation is a separate and distinct legal entity from its owners and 
shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite Investments, Ltd., 17 I&N 
Dec. 530 (Comrn. 1980), and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). Consequently, 
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. Furthermore, even if the funds represented by the 
promissory loan in the amount of $40,000 had been available to pay the proffered wage of $37,500 in tax year 
2001, this money would not be able to pay the proffered wage in any subsequent relevant year. 
Thus, 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 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. 
With regard to the second issue considered in the director's decision to deny the instant petition, namely, the 
beneficiary's qualifications, Section 203@)(3)(A)(i) of the Act, 8 U.S.C. $ 11 53(b)(3)(A)(i), provides for the 
granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United States. 
The petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form 
ETA 750 Application for Alien Employment Certification as certified by the U.S. Department of Labor and 
submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
Here, the Form ETA 750 was accepted on April 27,2001. 
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 
pertinent evidence in the record, including new evidence properly submitted upon appeal6. On appeal, counsel 
submits a complete copy of the Form ETA 750 submitted with the initial petition. Counsel states that an 
incomplete copy of the Form ETA 750 had been submitted with the 1-140 petition, that left out Part B of the 
From ETA 750, which contains the beneficiary's prior work experience. The record also contains the original 
6 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). 
Page 8 
Form ETA 750 submitted with the initial petition, and an undated letter of previous work verification written 
by Don Thresher, Resource Manager, Fahim Investment, Inc. D/B/A Brittmore Grocery Store, Houston, 
Texas. 
To determine whether a beneficiary is eligible for an employment based immigrant visa, CIS must examine 
whether the alien's credentials meet the requirements set forth in the labor certification. In evaluating the 
beneficiary's qualifications, CIS must look to the job offer portion of the 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. 40 1, 406 
(Cornrn. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 
699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary ofMassachusetts, Inc. v. Coomey, 661 F.2d 1 
(1st Cir. 1981). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750& items 14 and 15, set 
forth the minimum education, trainhg' and experience that an applicant must have for the position of printing 
machine operator. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education 
Grade School (Blank) 
High School (Blank) 
College (Blank) 
College Degree Required (Blank) 
Major Field of Study (Blank) 
The applicant must also have 2 years of experience in the job offered, the duties of which are delineated at Item 
13 of the Form ETA 750A and since this is a public record, will not be recited in this decision. Item 15 of Form 
ETA 750A does not reflect any special requirements. 
The beneficiary set forth his credentials on Form ETA-750B and signed his name under a declaration that the 
contents of the form are true and correct under the penalty of perjury. Contrary to counsel's assertion, the 
petitioner submitted a complete Form ETA 750 with the initial petition that contains the beneficiary's previous 
work experience. On Part 15, eliciting information of the beneficiary's work experience, he represented that he 
has worked as a drycleaner with Progressive Enterprenuers [sic] Inc d/b/a/ Touch of Class Cleaners in 
eorgia from February 1994 to July 1999. The beneficiary also claimed that he had worked with 
as a manager hm May 2000 to the 
, He does not provide any additional 
information concerning his employment background on that form. As stated previously, the record contains a 
letter of previous work verification from Fahim Investment Inc., where the beneficiary claimed he had worked as 
a manager. 
In his decision, the director determined that the letter from Fahirn Investment Inc. was undated and that it refmed 
to the beneficiary's work experience since May 2000. The director determined that the petitioner had not 
established that the beneficiary had the required experience as of April 2001. ' 
7 
 Although the director did not explicitly state that the petitioner had not provided sufficient evidence as to 
the beneficiary's previous work experience as a dry cleaner prior to the priority date of April 27,2001, within 
the context of the 1-140 petition regulatory guidance, this appears to be what the director intended. 
The regulation at 8 C.F.R. 9 204.5(1)(3) provides: 
(ii) Other documentation-- 
(A) General. 
 Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters fiom 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. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
Upon review of the record, the petitioner submitted a letter of work verification that is irrelevant to the duties 
of the proffered position. The undated letter of work verification attempts to document the beneficiary's 
previous work experience as a manager. The record is devoid of any evidence with regard to the beneficiary's 
claimed previous employment as a dry cleaner. The AAO thus affi the director's decision that the 
petitioner has not established that the beneficiary is qualified to perform the duties of the proffered position 
from the evidence submitted into this record of proceeding. 
As stated previously, the petitioner did not establish its ability to pay the proffered wage, and the petitioner 
also has not established that the beneficiary is qualified to perform the duties of the position. Thus, the 
director's decision shall be affirmed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. The petition is denied.