dismissed EB-3 Case: Health Care

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
PUBLIC COPY 
Washington, DC' 20529 
U.S. Citizenship 
and Immigration 
Services 
b6 
Office: TEXAS SERVICE CENTER Date: 
SRC 03 138 51089 
 OCT 0 2 2008 
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@)(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 employment based immigrant visa petition was denied by the Director (director), Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a health care services firm. It seeks to employ the beneficiary permanently in the United States 
as a licensed practical nurse. As required by statute, the petition is accompanied by an individual labor 
certification approved by the Department of Labor (DOL). The director determined that the petitioner had not 
established that it had the continuing financial ability to pay the beneficiary the proffered wage as of the priority 
date of the visa petition. 
On appeal, counsel submits additional evidence and asserts that the petitioner established its continuing financial 
ability to pay the proffered salary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U. S .C. $ 1 1 5 3 (b)(3)(A)(i), 
provides for the granting of preference classification to 4ualified 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 at 8 C.F.R. $,204.5(g)(2) also provides in pertinent part: 
Any petition filed by or for an employment-based immigrant whlch 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 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 appropnate cases, additional evidence, such as profit/loss statements, bank 
account records, or personnel records, may be submitted by the petitioner or requested by 
[Citizenship and Immigration Services (CIS)]. 
Eligibility in this case rests upon the petitioner's continuing financial ability to pay the wage offered as of the 
petition's priority date. The regulation at 8 C.F.R. $ 204.5(d) defines the priority date as the date the request 
for labor certification was accepted for processing by any office within the employment service system of the 
Department of Labor. Here, the petition's priority date is April 30, 2001. The beneficiary's salary as stated 
on the labor certification is $18.63 per hour, which amounts to $38,750.40 per year. On the ETA 750B, 
signed by the beneficiary on May 15,2002, the beneficiary does not claim to have worked for the petitioner.' 
On Part 5 of the visa petition, filed on April 14, 2003, the petitioner claims to have been established in 1994, 
1 
In contrast, the beneficiary claims employment with the petitioner from 2000 to the present on her 
biographic questionnaire (Form G-325A), signed by her on March 7,2003, and submitted in connection with 
her application for permanent resident status (1-485). 
have a gross annual income of $2,17 1,405, a net annual income of $1 10,500, and to employ 1 16  worker^.^ 
The petitioner did not initially submit any documentation of its ability to pay the proffered salary of 
$38,750.40. 
On October 27,2004, the director requested additional evidence from the petitioner in support of its ability to pay 
the proffered wage. The director requested the petitioner to provide copies of annual reports, federal tax returns, 
or audited financial statements. She further insbcted the petitioner federal income tax returns and copies of the 
beneficiary's Wage and Tax Statements (W-2) or evidence of payment of wages if employed by the petitioner. 
The director also requested that the petitioner provide copies of its federal quarterly tax return (Form 941) filed 
during 2003. 
In response to the director's request for additional evidence related to the petitioner's ability to pay the proffered 
wage, the petitioner, through counsel, provided copies of the petitioner's 2001,2002, and 2003 Form 1 120S, U.S. 
Income Tax Return for an S Corporation. They indicate that the petitioner uses a standard calendar year to file its 
taxes. The returns contain the following information: 
Ordinary Income -$ 27,672 $1 10,548 -$293,05 1 
Current Assets (Schedule L) $160,999 $146,49 1 $300,248 
Current ~iabilities (Sched. L) $299,856 $253,690 $582,263 
Net Current Assets -$138,857 -$107,199 -$282,015 
The petitioner did not provide copies of any Form 941(s) or copies of any payroll or W-2 records showing wages 
paid to the beneficiary. 
The director denied the petition, determining that the petitioner had failed to establish its continuing ability to pay 
the proffered salary beginning on the visa priority date. The director noted that although its net income of 
$1 10,548 was sufficient to pay the proposed wage offer in 2002 and, thus, establish the petitioner's ability to pay 
in that year, the director concluded that neither the net income or net current assets in 2001 and 2003, 
demonstrated the petitioner's ability to pay the proffered wage in each of those years.3 
On appeal, counsel asserts that the director's decision was not based on precedent decisions or regulations 
relating to the ability to pay the proffered salary. Counsel subsequently submits a copy of the petitioner's 
bank statement dated December 31, 2001 and a copy of the petitioner's bank statement as of December 31, 
2 
 The regulation at 8 C.F.R. 5 204.5(g)(2) allows organizations which employ at least 100 workers to submit a 
statement from a financial officer which establishes the U.S. employer's ability to pay the proffered wage. 
This provision was adopted in the final regulation in response to public comment favoring a less cumbersome 
way to allow large, established employers to utilize a more simplified route through adjudication. See 
Employment-Based Immigrants, 56 Fed. Reg. 60897, 60898 (Nov. 29, 1991). This alternative recognizes that 
large employers in some years may have net losses but remain fiscally sound and retain the ability to pay the 
proposed wage offer, although the director retains the discretion to reject an employer's assurances and seek 
corroborative evidence. 8 C.F.R. 5 103.2(b)(8). In this case, the director elected to seek additional evidence. 
3 
 The director's decision indicates that while she calculated losses of net income and net current assets for 
2001 and 2003, the numbers stated in the decision are not correct. 
2003. In both cases the ending balance was approximately $17,000 and $1 5,000, respective1 . Counsel also 
provides a letter, dated April 19, 2000; signed by the pet~tioner's chief financial officer, Ms. 
ates that the petitioner employs over 150 workers and that the petitioner has been satisfied with the 
's work over the years. She adds that the beneficiary was unable to work during the entire year in 
2003 due to illness, so "payments to her only totaled $27,822." Ms. also mentions the funds in the 
bank statement that could have been applied to the remaining proffered wage. She adds that the beneficiary 
received $45,000 in 2004 but does not mention 200 1. 
Regarding the 2001 tax return, Ms 
 references accounts receivable balance of $34,342 and other assets 
of $4,754, as well as the bank account ending balance shown on the December 2001 bank statement.' She also 
notes that the $77,195 (sic) listed as other current liabilities represents payroll, taxes and an overdraft which 
the petitioner usually pays gradually. 
These assertions are not persuasive in this case. It is noted that the petitioner was requested in the underlying 
proceedings to provide evidence of payment of wages to the beneficiary and declined to comply. On appeal, 
the actual dates of the beneficiary's employment remain vague and no actual corroboration of payment of 
wages has been forthcoming. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner may have employed and paid the beneficiary during a given period. If the petitioner 
establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than the 
proffered wage during a given period, the evidence will be considered prima facie proof of the petitioner's 
ability to pay the proffered wage during that period. If any shortfall between the proffered wage and any 
actual wages paid can be covered by either a petitioner's net taxable income or its net current assets, then the 
petitioner will be deemed to have demonstrated its ability to pay the proposed wage offer during a given 
period. In this case, as the net income and net current assets figures shown above indicate, no shortfall could 
be covered because each of the figures for 2001 and 2003 represent losses. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during a given period, CIS will next examine the net taxable income as reflected on the 
petitioner's federal income tax return, audited financial statements or annual reports, without consideration of 
depreciation or other expenses. If it equals or exceeds the proffered wage, the petitioner is deemed to have 
established its ability to pay the certified salary during the period covered by the 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. "The [CIS] may reasonably rely on net taxable income as reported on the 
employer's return." Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1053 (S.D.N.Y. 1986) ((citing 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, supra, and Ubeda v. Palmer, supra; see also Chi-Feng Chang 
v. Thornburgh, 719 F. Supp. 532, 536 (N.D. Texas 1989); K. C.P. Food Co., Inc. v. ~ava, 623 F. Supp. 1080 
(S.D.N.Y. 1985). 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 
The year appears to be a mistake and should be "2005." 
rejected the argument that the Service should have considered income before expenses were paid rather than 
net income. 
The reliance on the petitioner's bank statements is misplaced. 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," in this case it has not been established why the 
documentation specified at 8 C.F.R. $ 204.5(g)(2) is inapplicable or otherwise provides an inaccurate financial 
picture. Moreover, bank statements generally show only a portion of a petitioner's financial status and do not reflect 
other liabilities and encumbrances that may affect a petitioner's ability to pay the proffered wage. Cash assets should 
also be shown on the corresponding federal tax return as part of the listing of current assets on Schedule L. As such, 
they are already included in the calculation of a petitioner's net current assets for a given period. Here, it is noted that 
no evidence was submitted to demonstrate that the funds reported on the pehtioner's bank statements for 2001 and 
2003, which correlate to the periods covered by the submitted tax returns, somehow show additional available funds 
that would not be reflected on the corresponding tax return. 
Similarly, the $34,342 referred to by M 
 as receivables on the 2001 Schedule L of the petitioner's tax return, 
have already had been in 
 the ca cu ation of the petitioner's net current assets for that year. The additional 
$4,754 mentioned by Ms. 
 petitioner's longer-term total assets on line 14 and is not 
considered as cash or 
 by the figures included as current assets. It remains that in 
order to calculate net current assets, current assets must be balanced by consideration of current liabilities regardless 
of how a petitioner elects to pay such liabilities. In ths case, it cannot be concluded that either the -$27,672 in net 
income or the -$138,857 in net current assets could provide sufficient funds to pay the proffered wage in 2001. 
Similarly, in 2003, neither the petitioner's -$293,051 in net income, nor its -$282,015 in net current assets was 
sufficient to pay the proffered salary in 2003. 
The regulation at 8 C.F.R. 5 204.5(g) (2) requires that a petitioner demonstrate its continuing ability to pay the 
proffered wage. The evidence in this case fails to establish that the petitioner had the continuing ability to pay the 
proposed wage offer of'$38,750.40 in 2001 or 2003. Based on the evidence contained in the underlying record and 
after consideration of the information submitted on appeal, the AAO cannot conclude that the petitioner has 
demonstrated its continuing ability to pay the proffered wage as of the April 30, 2001, priority date of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.