dismissed EB-3 Case: Graphic Design

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PUBLIC COPY 
U.S. Department of TIomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: LIN-05-186-50064 Office: NEBRASKA SERVICE CENTER me: AUG 0 9 ZII'? 
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 1 153(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, Chief 
Administrative Appeals Office 
LIN-05- 1 86-50064 
Page 2 
DISCUSSION: The Director, Nebraska Service Center ("director"), denied the immigrant visa petition. The 
petitioner appealed and the matter is now before the Administrative Appeals Office ("AAO"). The appeal 
will be dismissed. 
The petitioner operates a commercial and offset printing business, which specializes in Gujarati, Hindi and 
English languages. It seeks to employ the beneficiary permanently in the United States as a graphic designer 
("Typesetter and Graphic Designer"). As required by statute, the petition filed was submitted with Form ETA 
750, Application for Alien Employment Certification, approved by the Department of Labor ("DOL"). As set 
forth in the director's March 4, 2006 decision, the case was denied based on the petitioner's failure to 
demonstrate its ability to pay the proffered labor certification wage from the priority date until the beneficiary 
obtains permanent residence. Further, the director denied the petition as the petitioner listed a wage on the 1- 
140 Petition, which was substantially less than the proffered wage as certified on Form ETA 750. 
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 appeal.' 
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. 
The petitioner has filed to obtain permanent residence and classify the beneficiary as a skilled worker. Section 
203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 C.F.R. 5 204.5(d). Therefore, 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). 
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 
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. 5 103.2(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 
ofsoriano, 19 I&N Dec. 764 (BIA 1988). 
LIN-05- 186-50064 
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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. 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on March 29, 
2001 .2 The proffered wage as stated on Form ETA 750 is $42,600.00 per year, based on 40 hour work week. 
The labor certification was approved on March 19, 2003, and the petitioner filed the 1-140 Petition on the 
beneficiary's behalf on May 26, 2005. On the 1-140, the petitioner listed the following information: date 
established: October 3 1, 1983; gross annual income: $1 77,879.00; net annual income: $3 1,065.00; current 
number of employees: two; and wages per week: $615.00, equivalent to $3 1,980 per year.3 
On June 21, 2005, the director issued a Request for Additional Evidence ("RFE") for the petitioner to submit: 
the original Form ETA 750 Parts A and B (the petitioner initially submitted a copy of only Form ETA 750A), 
as well as an explanation regarding where the original ETA 750A and B forms were, and documentation 
related to filings for the initial beneficiary; to submit additional evidence related to the petitioner's ability to 
pay in the form of federal tax returns, audited financial statements, or annual reports, as well as any W-2 
Forms issued to the beneficiary if the petitioner employed him. The petitioner responded.4 Following 
consideration of the petitioner's response, on March 4, 2006, the director denied the petition as the petitioner 
We note that the case involves the substitution of a beneficiary on the labor certification. Substitution of 
beneficiaries was permitted by the DOL at the time of filing this petition. DOL had published an interim final 
rule, which limited the validity of an approved labor certification to the specific alien named on the labor 
certification application. See 56 Fed. Reg. 54925, 54930 (October 23, 1991). 
 The interim final rule 
eliminated the practice of substitution. On December 1, 1994, the U.S. District Court for the District of 
Columbia, acting under the mandate of the U.S. Court of Appeals for the District of Columbia in Kooritzky v. 
Reich, 17 F.3d 1509 (D.C. Cir. 1994), issued an order invalidating the portion of the interim final rule, which 
eliminated substitution of labor certification beneficiaries. The Kooritzky decision effectively led 20 C.F.R. 5 
5 656.30(~)(1) and (2) to read the same as the regulations had read before November 22, 1991, and allow the 
substitution of a beneficiary. Following the Kooritzky decision, DOL processed substitution requests pursuant 
to a May 4, 1995 DOL Field Memorandum, which reinstated procedures in existence prior to the 
implementation of the Immigration Act of 1990 (IMMACT 90). 
 DOL delegated responsibility for 
substituting labor certification beneficiaries to Citizenship and Immigration Services ("CIS") based on a 
Memorandum of Understanding, which was recently rescinded. See 72 Fed. Reg. 27904 (May 17, 2007) (to 
be codified at 20 C.F.R. 5 656). DOL's final rule becomes effective July 16, 2007 and prohibits the 
substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. 
As the filing of the instant case predates the rule, substitution will be allowed for the present petition. 
The petitioner listed a wage on the 1-140 Petition, which was less than the certified wage listed on Form 
ETA 750 of $42,600.00 per year. The petitioner must pay the wage listed on the certified Form ETA 750. 
We will address this issue further below. 
In the petitioner's response, it provided the original Form ETA 750A and B, but failed to provide Form ETA 
750 Part B completed for and signed by the substituted beneficiary, which is material to establishing the 
beneficiary's qualifications. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
LIN-05- 186-50064 
Page 4 
failed to demonstrate that it could pay the proffered wage from the priority date until the beneficiary obtains 
lawful permanent residence, as well as for failure to pay the proffered wage listed on Form ETA 750A. The 
petitioner appealed, and the matter is now before the AAO. 
We will examine the petitioner's ability to pay based on information in the record and then consider the 
petitioner's additional arguments on appeal. First, in determining the petitioner's ability to pay the proffered 
wage during a given period, Citizenship & Immigration Services ("CIS") will 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 case at hand, the 
petitioner did not provide any evidence, or assert that it has employed the beneficiary. Further, the petitioner 
failed to provide Form ETA 750B for the beneficiary, which would list the substituted beneficiary's 
employment history, and whether the petitioner presently employed the beneficiary. Therefore, the petitioner 
cannot establish its ability to pay the proffered wage through prior wage payment. 
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. 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 Woodcraj 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), afd, 703 F.2d 57 1 (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 record demonstrates that the petitioner is an S corporation. Where an S corporation's income is exclusively 
from a trade or business, CIS considers net income to be the figure for ordinary income, shown on line 21 of 
page one of the petitioner's Form 1 120s. The instructions on the Form 1 120S, U.S. Income Tax Return for an 
S Corporation, state on page one, "Caution, include only trade or business income and expenses on lines la 
through 21 ." Where an S corporation has income from sources other than from a trade or business, net 
income is found on Schedule K. The Schedule K form related to the Form 1120 states that an S corporation's 
total income from its various sources are to be shown not on page one of the Form 1120S, but on lines 1 
through 6 of the Schedule K, Shareholders' Shares of Income, Credits, Deductions, etc. See Internal Revenue 
Service, Instructions for Form 1 120S, 2003, at http://www.irsgov/pub/irs-03/i 1 120s.pdf, Instructions for Form 
1120S, 2002, at http://www.irs.gov/pub/irs-02/i1120s.pdf, (accessed February 15, 2005). The petitioner lists 
only income from its business and will take the income from line 21: 
Tax year 
 Net income or (loss) 
2004 $37,590 
2003 $1,109 
2002 -$34,064 
200 1 -$27,566 
The petitioner's net income would not allow for payment of the beneficiary's proffered wage in any of the 
above years. 
LIN-05- 1 86-50064 
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As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Current assets include cash on hand, inventories, and receivables expected to be 
converted to cash within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. 
Its current liabilities are shown on lines 16 through 18 on the Forms 1 120s. If a corporation's net current 
assets are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered 
wage out of those net current assets, and evidences the petitioner's ability to pay. The net current assets would 
be converted to cash as the proffered wage becomes due. 
Tax year Net current assets 
2004 $27,163 
2003 -$9,927 
2002 -$14,742 
200 1 -$678 
Following this analysis, the petitioner's federal tax returns shows that the petitioner similarly lacks the ability 
to pay the proffered wage in any of the above years based on net current assets as well. 
The petitioner additionally submitted six bank statements: for the following dates: December 3 1, 200 1 ; 
January 3 1, 2002; December 3 1, 2002; January 3 1, 2003; January 3 1, 2004; and December 3 1, 2004. First, 
we note that bank statements are not among the three types of evidence listed in 8 C.F.R. 5 204.5(g)(2) as 
required to establish a petitioner's ability to pay a proffered wage. This regulation allows for consideration of 
additional material such as bank accounts "in appropriate cases." As the petitioner has not established that the 
bank balances represent funds in addition to cash assets listed on Schedule L, already considered in 
calculating the petitioner's net current assets, the bank statements would not demonstrate the petitioner's 
ability to pay the proffered wage. Further, as a fundamental point, the petitioner's tax returns are a better 
reflection of the company's financial picture, since tax returns address the question of liabilities. Bank statements 
do not reflect whether the petitioner has any outstanding liabilities. 
If we examined the statements, the statements showed significant variation in the petitioner's account. The 
statements reflected a low balance of $6,919.44 (as of January 3 1, 2002), and a high balance of $30,478.42 
(as of January 3 1, 2004). Additionally, five or six statements alone would not demonstrate the petitioner's 
ability to pay from March 2001 to the present, but rather would represent only the amount that the petitioner had 
in its account as of the statement dates submitted. 
The petitioner additionally submitted an unaudited income statement and balance sheet for the time period 
ending December 3 1, 2004. The regulation at 8 C.F.R. 5 204.5(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. An audit is conducted in accordance with generally accepted auditing standards to obtain a 
reasonable assurance that the financial statements of the business are free of material misstatements. The 
unaudited financial statement submitted with the petition is not persuasive evidence. Financial statements 
produced pursuant to a compilation are the representations of management compiled into standard form. The 
unsupported representations of management are not reliable evidence and are insufficient to demonstrate the 
ability to pay the proffered wage. 
The petitioner also submitted copies of the owner's W-2 statements, which showed wages paid to the owner 
in the amounts of: 
 2002: $24,000; 2003: $23,000; and 2004: $36,000. 
 Counsel asserts that with the 
LIN-05-186-50064 
Page 6 
beneficiary's employment, the owner "would be freed to attend to other businesses and his pay would go to 
the new employee." The petitioner, however, did not provide any statement that the owner would or could 
allow his or her wages to be used to pay the proffered wage, or demonstrate that the owner had other 
businesses or income through which the owner could support him or herself. Without documentary evidence 
to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions 
of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Additionally, the director denied the petition as the wage that the petitioner offered on Form 1-140 was 
substantially less than the wage offered on the certified Form ETA 750, and cited 20 C.F.R. 5 656.40(i) in 
support that "no prevailing wage determination for labor certification purposes made under this section 
permits an employer to pay a wage lower than the highest wage required by any applicable Federal, state, or 
local law." 
The certified Form ETA 750 listed the proffered wage as $42,600. The petitioner listed the wage on Form I- 
140 as $3 1,980 per year, which constituted an offer less than the certified wage. 
In response to the RFE request for the petitioner to demonstrate that it could pay the proffered wage, counsel 
submitted a copy of a State workforce agency ("SWA") wage obtained, dated August 10, 2005, that the wage 
for the position would be $26,3 12 based on a "level 1" wage, and not the $42,600 listed on the Form ETA 
750. Counsel requested the wage as "based on my experience I thought the minimum wage level determined 
by the department was bit [sic] higher than normal for the position in its industry." Counsel requested that 
CIS "evaluate the Petitioner's financial documents and make its decision in light of the revised minimum 
wage." 
The director noted that the Form ETA 750 provided for a wage of $42,600, and the petitioner could not now 
make a material change to the petition, and lower the wage. A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm. 1988).~ 
On appeal, the petitioner provides that "it is without any doubt that a mistake has been made by either the 
petitioner's previous counsel, or the Labor Department, or both on the wage determination." Counsel 
continues, that he conducted wage research himself, and obtained a prevailing wage determination from the 
Department of Labor, dated August 10, 2005, that the wage for the position would be $26,3 12, and not the 
$42,600 listed on the Form ETA 750. Further, counsel provides: 
Nothwithstanding the foregoing, my client understands that [CIS] can only go by a wage 
certified by the Labor Department. As such, the petitioner is requesting that it be given an 
opportunity to have the Labor Department certify the wage based on the correct prevailing 
5 
 Additionally, counsel has provided wage data for the position obtained in 2005, which reflected the 
prevailing wage in the year 2005. The labor certification was filed in 2001, so that the wage would be 
determined based on 2001 wage data. The Foreign Labor Certification wage data indicates that the prevailing 
wage for a graphic designer in Chicago, IL in 2001 at level one was: $29,806; and for level two: $47,798. See 
http://~~.flcdatacenter.com/OesArchiveResults.aspx?area= 1600&code=27- 1024.00&year= 1 &source= 1 
(accessed July 5,2007). 
LIN-05- 186-50064 
Page 7 
wage as determined by the Illinois Department of Employment Security. The petitioner has 
already begun the labor certification process pursuant to the Regulation under PERM 28 [sic], 
and expects to receive a new certification based on the correct and more reasonable wage 
level. 
Counsel resubmitted the copy of the State workforce agency ("SWA") wage obtained, dated August 2005, 
which listed the position as a level 1, with a pay rate of $26,3 12. 
The wage listed on Form ETA 750 is $42,600. The wage is part of the job offer completed and signed by the 
petitioner. The wage was the initial wage listed on the form; the Form ETA 750 does not reflect that DOL 
required the petitioner to increase the wage, or change the wage. DOL accepted and certified that wage as the 
prevailing wage rate while it supervised the petitioner's test of the U.S. labor market. Whether counsel 
believes the wage is more than it should be is irrelevant. As the Form ETA 750 was certified at this wage, the 
petitioner cannot now change the terms of the ETA 750 offer, and pay the beneficiary less because it believes 
the wage to be too high, or in error.6 This is the wage that the petitioner offered. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1 988).7 A petitioner must establish eligibility at the 
time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new 
set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). The present decision is without 
prejudice to the petitioner filing a new petition. 
Counsel has provided no further evidence or documentation on appeal to demonstrate that the petitioner can 
pay the proffered wage. 
Accordingly, based on the foregoing, we find that the petitioner has failed to document that it can pay the 
beneficiary the proffered wage from the priority date until the beneficiary obtains permanent residence, and the 
petition was properly denied. The burden of proof in these proceedings rests solely with the petitioner. 
Section 291 of the Act, 8 U.S.C. 5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Even if we were to accept counsel's argument that the wage should be lower, the petitioner would still be 
unable to demonstrate its ability to pay the proffered wage in 200 1, 2002, or 2003. 
7 
 Additionally, counsel has provided a wage for the year 2005. The labor certification was filed in 2001, and 
the wage would be determined based on the wage data for 2001. The Foreign Labor Certification wage date 
indicates that the prevailing wage for a graphic designer in Chicago, IL in 2001 at level one was: $29,806; and 
for level two: $47,798. See http://www.flcdatacenter.com/OesArchiveResults.asx?area= 1 600&code=27- 
1 024.00&year= I &source= 1 (accessed July 5,2007).