dismissed EB-3 Case: Home Based Education

PUBLIC COPY 
identifying data deleted to 
went cidy unwamted 
invasim of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 02 271 54086 Office: CALIFORNIA SERVICE CENTER Date: APR 0 9 2a7 
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. €j 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 Appeals Office 
WAC 02 271 54086 
Page 2 
DISCUSSION: The preference visa petition's approval was revoked by the Director, California Service 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 household. It seeks to employ the beneficiary permanently in the United States as a 
teacher, home based education. As required by statute, the petition is accompanied by a Forrn ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor. 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, and, the director determined that the 
petitioner had not established that the beneficiary is eligible for the classification sought. The director revoked 
the petition's approval accordingly. 
Section 205 of the Act, 8 U.S.C. 5 1 155, provides that "[tlhe Attorney General [now Secretary, Department of 
Homeland Security], may, at any time, for what he deems to be good and sufficient cause, revoke the 
approval of any petition approved by him under section 204." The realization by the director that the petition 
was approved in error may be good and sufficient cause for revoking the approval. Matter of Ho, 19 I&N 
Dec. 582,590 (BIA 1988). 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is as follows: the 1-140 petition was filed on September 4, 2002; the 
director approved the petitioner on December 6, 2002; the beneficiary attended a consular interview in India 
on October 20, 2003; the American Consulate in Mumbai, India, returned the 1-140 petition to the National 
Visa Center for review and possible revocation on June 22, 2004; the director issued an intent to revoke the 
approval to the petitioner on June 15, 2005; the petitioner responded to the intent to revoke the approval on 
July 13, 2005; the director issued a decision revoking the petition's approval on August 10, 2005; and, the 
petitioner filed an appeal of the director's decision on August 25, 2005. Further elaboration of the procedural 
history will be made only as necessary. 
As set forth in the director's revocation dated August 10, 2005, an 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 lawful permanent residence. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(ii), 
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
The regulation 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
Abili~ 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 
WAC 02 271 54086 
Page 3 
tj 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). 
Here, the Form ETA 750 was accepted on February 26, 1999.' The proffered wage as stated on the Form 
ETA 750 is $2,590.74 per month ($3 1,088.88). The Form ETA 750 states that the position requires two years 
of experience as a teacher, home based education, or, two years of experience as a school teacher. 
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.* 
Ability to Pay the Proffered Wane 
Relevant evidence in the record, relative to the petitioner's ability to pay the proffered wage, includes copies 
of the following documents: the original Form ETA 750, Application for Alien Employment Certification, 
approved by the U.S. Department of Labor; a brief received September 22, 2005; and, U.S. Internal Revenue 
Service Form 1040 tax returns for 1999,2000 and 2001,2002,2003 and 2004. 
On appeal, relative to the petitioner's ability to pay the proffered wage, counsel asserts that the petitioner's 
household totals four individuals and the evidence submitted is proof of the petitioner's ability to pay the 
proffered wage. Counsel states that although no personal expenses of the petitioner or hisher assets were 
requested or submitted, that the petitioner's personal expenses are minimal. 
The unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled to 
any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503 (BIA 1980). 
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 lawhl 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. tj 204.5(g)(2). In 
evaluating whether a job offer 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 
 It has been approximately eight years since the Alien Employment Application has been accepted and the 
proffered wage established. According to the employer certification that is part of the application, ETA Form 
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the 
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins 
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work." 
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. 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 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
WAC 02 271 54086 
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 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 beneficiary is not in the United States, and, therefore, the beneficiary was never paid wages 
by the petitioner. 
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 in the petitioner's instance the 
adjusted gross 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner is a private household. Therefore the petitioner's adjusted gross income, assets and personal 
liabilities are also considered as part of the petitioner's ability to pay. The petitioner must show that helshe 
can cover their existing personal expenses as well as pay the proffered wage out of hisher adjusted gross 
income or other available funds. Similar to a sole proprietorship, the petitioner must show that shehe can 
sustain themselves and their dependents. See Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 
F.2d 571 (7th Cir. 1983). 
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioning entity 
structured as a sole proprietorship could support himself, his spouse and five dependents on a gross income of 
slightly more than $20,000 where the beneficiary's proposed salary was $6,000 or approximately thirty 
percent (30%) of the petitioner's gross income. 
In the instant case, the petitioner supports a family of four. The proffered wage is $3 1,088.88 per year. The 
tax returns reflect the following information for the following years: 
Adjusted gross income (Form 1040) $ 69,127.003 $ 77,591 .OO $ 89,183.00 
Itemized Deductions (Schedule A) $ 17,564.004 $ 17,434.00 $ 16,612.00 
Adjusted gross income (Form 1040) $100,041 .OO $106,855 .OO $133,70 1 .OO 
Itemized Deductions (Schedule A) $ 18,310.00 $ 18,289.00 $ 23,543.00 
3 
IRS Form 1040, Line 33,34 or 35 depending upon the year of the tax return. 
4 
 IRS Form 1040, Schedule A, Line 28. 
WAC 02 271 54086 
Page 5 
In each of the years for which tax returns were submitted, the petitioner's adjusted gross income as stated for 
each year would cover the proffered wage of $31,088.88 per year considering those personal expenses 
disclosed by the petitioner on Schedule A of the tax returns. 
However, beyond the decision of the director, no statement of personal expenses of the petitioner was found 
in the record of proceeding. Schedule A as submitted with the petitioner's Form 1040 tax return each year 
listed personal deductible expenses such as medical and dental services, home mortgage interest, charitable 
contributions as stated above. As already stated, the 1-140 petitioner is a private household. Therefore, to 
determine the ability of the petitioner to pay the proffered wage and meet hidher living costs, all of the 
family's household living expenses should be considered. Besides the items found on the petitioner's 
Schedule A of his returns, such items generally includes the following: food, car payments (whether leased or 
owned), installment loans, insurance (auto, household, life, etc.), utilities (electric, gas, cable, phone, internet, 
etc.), credit cards, student loans, clothing, school, daycare, gardener, house cleaner, nanny, and any other 
recurring monthly household expenses. It is reasonable to expect that the petitioner's personal expenses for 
each of the years examined would be greater than that stated on the Schedule A statements to the returns. 
Therefore, we find as the record of proceeding exists, there is insufficient information found in the record to 
make a determination of the petitioner's ability to pay the proffered wage. 
Qualifications of the Beneficiary 
As set forth in the director's revocation dated August 10, 2005, another issue in this case is whether or not the 
beneficiary is eligible for the classification sought. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(3)(A)(ii), 
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
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. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on February 26, 1999. 
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.' 
On appeal, concerning the beneficiary's qualifications and the director's decision, counsel asserts that the 
director is "flatly wrong" when the director revoked the approval of the petition based on allegations raised by 
the U.S. consulate that the beneficiary does not speak or understand the English language. 
To determine whether a beneficiary is eligrble for an employment based immigrant visa, Citizenship and 
Immigration Services (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 
5 
 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 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
WAC 02 271 54086 
Page 6 
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 (Cornm. 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 of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
In the instant case, the Application for Alien Employment Certification, Form ETA-750A, items 14 and 15, set 
forth the minimum education, training, and experience that an applicant must have for the position of teacher, 
home based education. In the instant case, item 14 describes the requirements of the proffered position as 
follows: 
14. 
 Education . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 
Grade School - 
High School - - 
College - 
College Degree Required Bachelors 
Major Field of Study Education 
The applicant must also have two 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. In the related 
occupation of School Teacher, the applicant must have two years of experience in that occupation. 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. On Part 15, eliciting information of the 
beneficiary's work experience, he represented that he has job experience as an assistant teacher received at the 
Mohiniba Girls High School, Gujarat, India from July 1992 to present (the form was undated), and at the Por 
Educational Trust High School, Gujarat, India, from June 1981 to June 1992; and, as a teacher at that same school 
from July 1978 to May 1981. He does not provide any additional information concerning his employment 
background on that form. 
The regulation at 8 C.F.R. fj 204.5(1)(3) provides: 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for slulled workers, professionals, or 
other workers must be supported by letters from trainers or employers glving the name, address, 
and title of the trainer or employer, and a description of the training received or the experience of 
the alien. 
(C) Professionals. If the petition is for a professional, the petition must be accompanied by 
evidence that the alien holds a United States baccalaureate degree or a foreign equivalent degree 
and by evidence that the alien is a member of the professions. Evidence of a baccalaureate 
degree shall be in the form of an official college or university record showing the date the 
baccalaureate degree was awarded and the area of concentration of study. To show that the alien 
is a member of the professions, the petitioner must submit evidence showing that the minimum 
WAC 02 271 54086 
Page 7 
of a baccalaureate degree is required for entry into the occupation. 
On appeal, counsel submits copies of the following documents: a brief received September 22, 2005; an 
undated letter from the petitioner's family members; two WebPages from the Internet, 
<http://adaniel.tripod.com/Languages3html~ accessed September 20, 2005; three WebPages from the 
Internet ht~:/lwww.antimoon.comiforu~2003/2481.htrnl accessed September 20, 2005; an explanatory 
letter from counsel dated July 12, 2005; the beneficiary's college record transcript; the beneficiary's 
secondary school certificate; a letter with a certificate dated January 12, 2005 from the Institute of English, 
Ahmadabad, India, stating that the beneficiary was enrolled there from January 2004 to December 2004; two 
partially translated experience certificates dated May 30, 1981, and June 30, 1982; and, an experience 
certificate dated September 16, 1998, from the Mohinaba Kanya Vidhyalay Institute dated September 16, 
1998. 
Other relevant evidence in the record includes copies of the following documents: the original Form ETA 
750, Application for Alien Employment Certification, approved by the U.S. Department of Labor; and, a 
credentials evaluation report prepared by the Global Education Group Inc., Miami Beach Florida, dated 
February 22, 1999, that stated that the beneficiary's education is equivalent to the U.S. degree of Bachelor of 
Science in Education with a major in Mathematics awarded by a regionally accredited university in the United 
States. According to the report, the beneficiary received a Bachelor of Science (Special) degree in Geology 
from Gujarat University, India, in October of 1977. He was later awarded the degree of Bachelor of Science 
in Education, majoring in mathematics awarded on October 16, 1979. 
Additionally, counsel submitted copies of the following documents: a diploma stating that the beneficiary 
received the degree of Bachelor of Science in Education, majoring in mathematics awarded on October 16, 
1979; a diploma stating that the beneficiary received a Bachelor of Science (Special) degree in Geology from 
Gujarat University, India, in October of 1977; and, the beneficiary's college record transcripts as well as the 
beneficiary's secondary school certificate. 
As already stated, the beneficiary attended a consular interview in India on October 20, 2003, after which, the 
America Consulate in Mumbai, India, returned the 1-140 petition to the National Visa Center for review and 
possible revocation on June 22,2004. 
The consulate conducted an interview of beneficiary on October 20, 2003, and after conducting an interview and 
reviewing documents provided by the beneficiary, found that the beneficiary was not eligible to receive an 
immigrant visa according to 22 C.F.R. fj 42.43(a)(l), and, therefore the consular post rehsed the visa application 
under fj 2 12(a)(5)(A) of the Act. 
The regulation at 22 C.F.R. fj 42.43(a) of the Act states in pertinent part: 
Suspension or termination of action in petition cases. 
(a) Suspension of action. The consular officer shall suspend action in a petition case and return 
the petition, with a report of the facts, for reconsideration by INS [now CIS] if the petitioner 
requests suspension of action, or if the officer knows or has reason to believe that approval 
of the petition was obtained by fraud, misrepresentation, or other unlawful means, or that the 
beneficiary is not entitled, for some other reason, to the status approved. 
WAC 02 271 54086 
Page 8 
The Application for Alien Employment Certification, Form ETA-750A, item 13 sets forth the description of the 
job of teacher, home based education as follows in pertinent part: 
Teach student academic, social and motor skills to 2 pupils in their home as part of home- 
based schooling, adapting curriculum to meet individual's need. Teach English, 
mathematics, science, social studies and foreign languages (Gujarati & Hindi) . . . . 
According to the report of the interview prepared by the consular officer at the U.S. Consulate General, Mumbai, 
India, the beneficiary was unable to speak or understand English, and, the beneficiary required the services of a 
Gujarati language translator to conduct the interview. According to the consulate officer, the beneficiary stated 
through a Gujarati language translator, since the beneficiary was unable to respond to the interviewer in English, 
that he was to be employed by the petitioner to teach his/her children mathematics and science in the English 
language. However, the beneficiary was unable to answer science related questions. After which, the beneficiary 
changed what he said was his job responsibilities, and, then said he would teach the petitioner's only Indian 
history, and the Indian languages of Hindi and Gujarati. The consular officer noted that the beneficiary said that 
the Indian languages of Hindi and Gujarati were already spoken by the petitioner and his wife, and, it was not 
credible that they would hire a Hindi and Gujarati speaker to teach these same languages to the petitioner's 
children. 
In rebuttal to the above report and its findings, counsel stated that the director is "flatly wrong" when the 
director revoked the approval of the petition based on allegations raised by the U.S. consulate that the 
beneficiary does not speak or understand the English language. Counsel cites the federal court cases of Henry 
v. INS, 74 F.3d 1,4 (1". Cir. 1996), Urbina Osejo v. INS, 124 F.3d 13 14, 13 18-1 9 (9th Cir. 1997), and Watkins 
v. INS, 63 F.3d 844, 850 (9th Cir. 1999, and, Tapis Inter '1 v. INS, 94 F. Supp. 2d 172 (Mass. 2000) for the 
premise that it is an abuse of discretion when CIS fails to consider all relevant factors, and, relies upon the 
consulate officer's evaluation of the beneficiary's English language skills instead of relying upon evidence of 
the beneficiary's training in English language skills. 
At least two circuits, including the Ninth Circuit, have held that CIS does have the authority and expertise to 
evaluate whether the alien is qualified for the job. Those Circuit decisions are binding on this office and will 
be followed in this matter. 
Relying in part on Madany v. Smith, 696 F.2d 1008, 1012-101 3 (D.C. Cir. 1983), the Ninth circuit stated: 
[I]t appears that the DOL is responsible only for determining the availability of suitable 
American workers for a job and the impact of alien employment upon the domestic labor 
market. It does not appear that the DOL's role extends to determining if the alien is qualified 
for the job for which he seeks sixth preference status. That determination appears to be 
delegated to the INS under section 204(b), 8 U.S.C. 3 1154(b), as one of the determinations 
incident to the INS'S decision whether the alien is entitled to sixth preference status. 
K.R.K. Iwine, Inc v. Landon, 699 F.2d 1006, 1008 (9' Cir. 1983). The court relied on an amicus brief from the 
DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 212(a)(14) of 
the ... [Act] ... is binding as to the findings of whether there are able, willing, qualified, and 
available United States workers for the job offered to the alien, and whether employment of 
the alien under the terms set by the employer would adversely affect the wages and working 
WAC 02 271 54086 
Page 9 
conditions of similarly employed United States workers. 
 The labor certzfication in no way 
indicates that the alien offered the certzfied job opportunity is qualzfied (or not qualzfied) to 
perform the duties ofthat job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K.R.K. Iwine, Inc., 699 F.2d at 1006, reached a similar 
decision in Black Const. COT. v. INS, 746 F.2d 503, 504 (1 984). 
The Department of Labor ("DOL") must certify that insufficient domestic workers are available to perform 
the job and that the alien's performance of the job will not adversely affect the wages and working conditions 
of similarly employed domestic workers. Id. 5 212(a)(14), 8 U.S.C. 8 1182(a)(14). The INS then makes its 
own determination of the alien's entitlement to sixth preference status. Id. 8 204(b), 8 U.S.C. 5 1154(b). See 
generally K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir.1983). See also Castaneda-Gonzalez v. 
INS, 564 F.2d 417,429 (D.C.Cir.1977), "there is no doubt that the authority to make preference classification 
decisions rests with INS. The language of section 204 cannot be read otherwise . . . all matters relating to 
preference classification eligibility not expressly delegated to DOL remain within INS' authority." 
Counsel recounts the beneficiary's educational attainments and job experience as evidence of the 
beneficiary's qualification for the preference classification. There is no finding by the director adverse to the 
beneficiary in this regard. This assertion will not be discussed further. 
Rather, the director stated in the decision to revoke the preference visa petition's approval that the US. 
consulate consular officer found that the beneficiary does not speak or understand the English language. 
Counsel speculates in a letter dated July 12, 2005, that the beneficiary was "nervous speaking a second 
language," which was English, that the beneficiary used an interpreter "to avoid any inadvertent and costly 
mistakes," and, implied that the consular interview was adversarial and stressful. A search of the record of 
proceeding does not disclose a statement by the beneficiary supporting counsel's assertions, nor why it would 
not be useful for any proposed recipient of an employment based visa that requires the teaching of the English 
language, not to speak English at the consular interview. Counsel's contentions, that are speculative, are not 
credible considering the terms of the job duties of the labor certification, or, the circumstances of the consular 
interview. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported 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. I (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1 - 
92 (BIA 1988). 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. Matter of Ho, 19 
I&N Dec. 582,591 (BIA 1988). 
We note that after the consular interview, the beneficiary found it necessary to attend a course of instruction 
in the English language. There was submitted a letter with a certificate dated January 12, 2005 from the 
Institute of English, Ahmadabad, India, stating that the beneficiary was enrolled there fi-om January 2004 to 
December 2004. We find this is credible evidence that the beneficiary believed his English language skills 
were of a state that required additional instruction in 2004. Further, since the petitioner must demonstrate that, 
on the priority date the beneficiary had the qualifications to perform the job as stated in the labor certification, the 
beneficiary's educational attainment five years after the priority date of February 26, 1999, has no probative 
WAC 02 271 54086 
Page 10 
value concerning the beneficiary's qualifications on the priority date. See Matter of Wing's Tea House, 16 I&N 
Dec. 158 (Act. Reg. Comrn. 1977. 
The AAO thus affirms the director's decision that the preponderance of the evidence does not demonstrate 
that the petitioner had established that the beneficiary is not eligible for the classification sought as he is not 
qualified to perform the duties of the proffered position. 
We find as the record of proceeding exists, there is insufficient information found in the record to make a 
conclusive determination of the petitioner's ability to pay the proffered wage because a statement of the 
petitioner's personal expenses was never submitted. Nevertheless, we find that as of the priority date, the 
evidence submitted as found in the record of proceeding demonstrates that the beneficiary did not speak or 
understand the English language required to perform the job duties stated in the labor certification. Thus, the 
director had good and sufficient cause to revoke the approval of the petition according to Section 205 of the 
Act. 
ORDER: The appeal is dismissed.