dismissed EB-3 Case: Healthcare

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC Copy 
 U. S. Citizenship 
and Immigration 
fdentify;nc ' A- datetedm 
 Services 
preven; * .qarranted 
invasion of personal psivacy 
Office: CALIFORNIA SERVICE CENTER 
 Date: dpf( 2 4 2007 
WAC 05 077 53504 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 
 1 153(b) 
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 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a board and care facility. It seeks to employ the beneficiary permanently in the United States 
as a residence supervisor. 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. 
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 ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original May 26, 2005 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawfbl permanent residence. 
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 or seasonal nature, for which qualified workers are not available in 
the United States. 
The regulation at 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. 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 profit/loss 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 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 CFR 4 204.5(d). The priority date in the instant petition is January 
11, 1999.' The proffered wage as stated on the Form ETA 750 is $1,865.68 per month or $22,388.16 
annually. 
1 
The instant petition is for a substituted beneficiary. An 1-140 petition for a substituted beneficiary retains 
the same priority date as the original ETA-750. Memo. from Luis G. Crocetti, Associate Commissioner, 
Immigration and Naturalization Service, to Regional Directors, et al., Substitution of Labor Certzjcation 
Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fm/fm96/fm28-96a.pdf (March 7, 1996). 
The AAO takes a de novo look at issues raised in the denial of ths 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 appeal2. Relevant evidence submitted on 
appeal includes counsel's brief. Other relevant evidence includes copies of the petitioner's 1999 through 2004 
Forms 1120S, U.S. Income Tax Returns for an S Corporation, copies of the prior beneficiary's, Leodegario 
Selda's, 1999 through 2002 Forms W-2, Wage and Tax Statements, a letter dated May 13, 2005 from the 
petitioner's owner, and copies of the petitioner's 2004 Forms DE-6, California Employment Development 
Department (EDD) Quarterly Wage Reports. The record does not contain any other evidence relevant to the 
petitioner's ability to pay the proffered wage. 
The petitioner's 1999 through 2004 Forms 1120s reflect ordinary incomes or net incomes from Schedule K of 
627,444, $9,996, 434,857, 410,903, $26,827, and $6,274, respectively. The petitioner's 1999 through 2004 
Forms 1120s also reflect net current assets of 49,966, -$16,305, -$65,962, -$64,876, 432,067, and -$16,962, 
respectively. 
The prior beneficiary's 1999 through 2002 Forms W-2, issued by the petitioner, reflect wages earned of $10,050, 
$12,400, $13,700, and $1 1,400, respectively. 
The petitioner's 2004 Forms DE-6 reflect that the petitioner employed the beneficiary in the fourth quarter of 
2004, and that the beneficiary earned $1,650 during that quarter. 
The letter fiom the petitioner's owner states: 
1999-2002 tax returns showing negative net income did not 
pay. During those years, - 
down payment of $100,000 in cash plus monthly 
fund was committed to renovate both properties to suit as home care facilities. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $22,388.16 
based on its net income of $26,962 in 2003, its net income of $10,136 plus the wages paid to the prior 
beneficiary of $12,400 in 2000, and its net income of $9,113 plus the wages paid to the beneficiary of 
$14,300) in 2004. Counsel also claims that the petitioner has established its ability to pay the proffered wage 
of $22,388.16 based on its continually increasing revenues and its unusual expenses during 1999 through 
2002. Counsel cites Matter of Sonegawa, 12 I&N Dec. 6 12 (R.C. 1967) in support of his contention. 
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 
2 
 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. 9 103.2(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). 
It is noted that although counsel claims the beneficiary earned $14,300 in 2004, there is no evidence in the 
record that corroborates this claim. In fact, the petitioner's 2004 Forms DE-6 show the beneficiary as only 
being employed in the last quarter of 2004 and earning only $1,650 that quarter. 
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. 5 204.5(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 ofsonegawa, 12 I&N Dec. 
6 12 (Reg. Comm. 1 967). 
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 consideredprima 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 January 18,2005, the beneficiary does not 
claim the petitioner as a past or present employer. However, counsel has provided copies of the petitioner's 
2004 Forms DE-6 indicating that the petitioner employed the beneficiary in the last quarter of 2004. 
Therefore, the petitioner has established that it employed the beneficiary in the last quarter of 2004, but not in 
1999 through 2003. The petitioner is obligated to establish that it had sufficient funds to pay the difference 
between the proffered wage of $22,388.16 and the actual wages paid of $10,050, $12,400, $13,700, and 
$1 1,400 to the prior beneficiary in 1999 through 2002 and to the beneficiary of $1,650 in 2004.~ Those 
differences are $12,338.16, $9,988.16, $8,688.16, $10,988.16, and $20,738.16, respectively. Therefore, the 
petitioner has established that it had sufficient funds to pay the difference of $9,988.16 between the proffered 
wage of $22,388.16 and the actual wage paid to the prior beneficiary of $12,400 fiom its net income of 
$9,996 in 2000.~ 
As an alternative 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, 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 Cop. 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, 719 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)' afd., 703 F.2d 571 (7& Cir. 1983). In K.C.P. Food Co., Inc., the court held that 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 cowt specifically rejected the argument that 
CIS 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 also Elatos Restaurant Corp., 632 F. Supp. at 1054. 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 
4 
 It is noted that the petitioner has established its ability to pay the proffered wage of $22,388.16 in 2003 
through is net income of $26,827. 
5 
 In the case where the petitioner has established that the beneficiary will be replacing another worker 
performing the duties of the proffered position, the wages already paid to that employee may be shown to be 
available to prove the ability to pay the wage proffered to the beneficiary at the priority date of the petition 
and continuing to the present. 
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. 
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 1120s. The instructions on 
the Form 1120S, 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 1120S, 2003, at htt_r>://www.irs~ov/pub/irs-03/i1120s.pdf, Instructions for Form 1120S, 
2002, at http://www.irs.gov/pub/irs-02/i 1 120s.pdf, (accessed February 15, 2005). 
In the instant case, the petitioner's 1999 through 2004 net incomes from Schedule K were -$27,444, $9,996, 
634,857, 410,903, $26,827, and $6,274, respectively. The petitioner could have paid the proffered wage of 
$22,388.16 from its net income in 2003, but not in any of the other years. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. 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. 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. 
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 a corporation's end-of-year 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. The petitioner's net current assets in 1999 through 2004 were -$9,966, -$16,305, -$65,962, 
-$64,876, 432,067, and -$16,962, respectively. The petitioner could not have paid the proffered wage of 
$22,388.16 in 1999 through 2004 from its net current assets. 
6 
 According to Barron 's Dictionary of Accounting Terms 117 (3rd 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. 
c Page 6 
On appeal, counsel contends that the petitioner has established its ability to pay the proffered wage of 
$22,388.16 based on its net income of $26,962 in 2003, its net income of $10,136 plus the wages paid to the 
prior beneficiary of $12,400 in 2000, and its net income of $9,113 plus the wages paid to the beneficiary of 
$14,300 in 2004. Although the petitioner's net income was $9,996 in 2000 and $26,827 in 2003, counsel is 
correct that the petitioner has established its ability to pay the proffered wage in 2000 and 2003. However, 
the record of proceeding does not contain any verifiable evidence that the beneficiary earned $14,300 in 2004. 
Instead, the record contains the petitioner's 2004 Forms DE-6 showing its employment of the beneficiary only 
in the fourth quarter of 2004 and showing that the beneficiary only earned $1,650 that quarter. Therefore, the 
petitioner has not established its ability to pay the proffered wage in 2004. 
On appeal, counsel also claims that the petitioner has established its ability to pay the proffered wage of 
$22,388.16 based on its continually increasing revenues and its unusual expenses during 1999 through 2002. 
However, the petitioner has only submitted a letter from the owner detailing its unusual expenses during 1999 
through 2002. The petitioner has provided no corroborative evidence such as purchase agreements, evidence 
that the $100,000 down payment actually came from the petitioner, remodeling contracts, incorporation or 
ownership of the new companies, etc. 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). In addition, CIS will not consider gross 
income without also considering the expenses that were incurred to generate that income. 
If the petitioner does not have sufficient net income or net current assets to pay the proffered salary, CIS may 
consider the overall magnitude of the entity's business activities. Even when the petitioner shows insufficient 
net income or net current assets, CIS may consider the totality of the circumstances concerning a petitioner's 
financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter of 
Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The distnct director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In this case, the petitioner's tax returns indicate it was 
incorporated in 1994. While the petitioner's quarterly wage reports establish that the petitioner employed 
between 26 and 29 workers in 2004, the petitioner has provided no evidence of its employees for 1999 
through 2003. Further, the petitioner has provided tax returns for the years 1999 through 2004. However, 
while the petitioner's gross receipts increased each year from 1999 to 2004, out of the six tax returns provided 
by the petitioner, only 2000 and 2003 establish the petitioner's ability to pay the proffered wage of 
$22,388.16, which is not enough evidence to establish that the business has met all of its obligations in the 
past or to establish its historical growth. There is also no evidence of the petitioner's reputation throughout the 
industry. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the 
petitioner has not established that it had the continuing ability to pay the proffered wage. 
The petitioner's 1999 tax return reflects an ordinary income or net income of -$27,444 and net current assets 
of -$9,966. The petitioner could not have paid the difference of $12,338.16 between the proffered wage of 
$22,388.16 and the actual wages paid to the prior beneficiary of $10,050 from either its net income or its net 
current assets in 1999. 
The petitioner's 2000 tax return reflects an ordinary income or net income of $9,996 and net current assets of 
-$16,305. The petitioner could have paid the difference of $9,988.16 between the proffered wage of 
$22,388.16 and the actual wages paid to the prior beneficiary of $12,400 from its net income in 2000. 
The petitioner's 2001 tax return reflects an ordinary income or net income of 434,857 and net current assets 
of -$65,962. The petitioner could not have paid the difference of $8,688.16 between the proffered wage of 
$22,388.16 and the actual wages paid to the prior beneficiary of $13,700 from either its net income or its net 
current assets in 200 1. 
The petitioner's 2002 tax return reflects an ordinary income or net income of -$10,903 and net current assets 
of -$64,876. The petitioner could not have paid the difference of $10,988.16 between the proffered wage of 
$22,388.16 and the actual wages paid to the prior beneficiary of $1 1,400 from either its net income or its net 
current assets in 2002. 
The petitioner's 2003 tax return reflects an ordinary income or net income of $26,827 and net current assets 
of -$32,067. The petitioner could have paid the proffered wage of $22,388.16 from its net income in 2003. 
The petitioner's 2004 tax return reflects an ordinary income or net income of $6,274 and net current assets of 
-$16,962. The petitioner could not have paid the difference of $20,738.16 between the proffered wage of 
$22,388.16 and the actual wages paid to the beneficiary of $1,650 fkom either its net income or its net current 
assets in 2004. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal do 
not overcome the decision of the director. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.