dismissed EB-3 Case: Home Care

iu@b &a deleted to 
Prevent clearly unwmted 
kvaS'on ofpersonal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for Alien Worker as an Other Worker 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. 
dobert P. Wiemann, Chief 
Administrative Appeals Office 
WAC-04- 124-5 1903 
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 private individual. She seeks to employ the beneficiary permanently in the United States 
as a Home Care Attendant (Live-in). 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 and denied the petition accordingly. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(iii), 
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 unskilled labor, 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: 
Ability ofprospective employer to pqy 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 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 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 petition's 
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 C.F.R. 9 204.5(d). The priority date in the instant 
petition is January 16, 2001. The proffered wage as stated on the Form ETA 750 is $1 3.07 per hour, which 
amounts to $27,185.60 annually. On the Form ETA 750B, signed by the beneficiary on November 30,2000, 
the beneficiary claimed to have worked for the petitioner beginning in October 1983 and continuing through 
the date of the ETA 750B. The ETA 750 was certified by the Department of Labor on February 4,2004. 
The 1-140 petition was submitted on April 13, 2004. With the petition, the petitioner submitted supporting 
evidence. 
In a request for evidence (WE) dated June 23, 2004, the director requested additional evidence relevant to the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date. The director also 
requested additional evidence relevant to the petitioner's date of birth and to the petitioner's citizenship of the 
United States or the petitioner's legal status in the United States. 
In response to the WE, the petitioner submitted additional evidence. The petitioner's submissions in response 
to the RFE were received by the director on September 10, 2004. 
WAC-04-1 24-5 1903 
Page 3 
In a decision dated October 19,2004, the director determined that the evidence did not establish that the petitioner 
had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence, and denied the petition. 
On appeal, counsel submits a brief and additional evidence. Counsel states on appeal that the director erred in 
relying only on the petitioner's net income in evaluating the petitioner's ability to pay the proffered wage. 
Counsel states that the record before the director also included evidence of substantial assets of the petitioner 
which should also have been considered. Counsel states that a recent appraisal report of the petitioner's home is 
being submitted on appeal and that the report shows a value of $524,000.00 based on sales comparisons. Counsel 
states that the petitioner's loan balance is $170,617.00, leaving her with $353,383.00 in estimated equity, based 
on the sales comparisons analysis of the home's value. Counsel also states that investment account statements of 
the petitioner show substantial funds in accounts with several investment houses. 
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. tj 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. tj 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 of Sonegawa, 12 I&N Dec. 
6 12 (Reg. Comm. 1967). 
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 considered prima 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 November 30,2000, the beneficiary claimed to 
have worked for the petitioner beginning in October 1983 and continuing through the date of the ETA 750B. 
The record contains copies of Form W-2 Wage and Tax Statements of the beneficiary for 2001,2002 and 2002. 
The beneficiary's Form W-2's show compensation received from the petitioner as shown in the table below. 
Year 
Wage increase 
Beneficiary's actual needed to pay 
compensation Proffered wage the proffered wage. 
WAC-04- 124-5 1903 
Page 4 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
As another 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 for a given year, 
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 
Restawant Corp. v. Suva, 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, 7 19 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Saw, 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 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service 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 Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a private individual. The record contains copies of the Form 1040 
U.S. Individual Income Tax Returns of the petitioner and her husband for 2000,2001,2002 and 2003. 
The record before the director closed on September 10, 2004 with the receipt by the director of the petitioner's 
submissions in response to the RFE. As of that date, the federal tax return of the petitioner for 2003 was the most 
recent return available. 
A private individual's income and personal obligations are considered as part of the petitioner's ability to pay. 
Private individuals report income on the Form 1040 U.S. Individual Income Tax Return. A private individual 
must show sufficient resources for his or her own support and for that of any dependents as well as to pay the 
proffered wage. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. 111. 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 the owner, his spouse and five dependents on a gross income 
of slightly more than $20,000.00 where the beneficiary's proposed salary was $6,000.00, a figure which was 
approximately thirty percent (30%) of the petitioner's gross income. 
In the instant petition, the tax returns of the petitioner are joint returns of the petitioner and her husband. 
Those returns show two dependents. Therefore the household size of the petitioner is four persons. 
The record contains a statement of the petitioner's monthly household expenses, itemizing expenses which 
total $2,506.88 per month, a figure which amounts to $30,082.56 on an annual basis. The petitioner's 
monthly household expenses include one item which appears to be a health insurance payment on behalf of 
the beneficiary of $387.00 per month, which amounts to $4,644.00 on an annual basis. Since those payments 
do not pertain to the petitioner's own household, they will not be considered as part of the petitioner's 
monthly household expenses, leaving the petitioner's monthly expenses as $2,119.88, equivalent to 
$25,438.56 on an annual basis. The petitioner's statement of monthly household expenses is not dated, but it 
was submitted with the petitioner's responses to the RFE, which were received by the director on September 
10, 2004. Since no statements of monthly expenses were submitted for earlier years, the figures on the 
statement submitted on September 10, 2004 will be used for each ofthe years at issue in the instant petition. 
WAC-04- 124-5 1903 
Page 5 
For a private individual, CIS considers net income to be the figure shown on line 33, Adjusted Gross Income, of 
the petitioner's Form 1040 U.S. Individual Income Tax Return. The petitioner's tax returns state amounts for 
adjusted gross income as shown in the table below. 
Wage increase 
Tax Adjusted Household Available needed to pay Surplus or 
year gross income expenses income the proffered wage deficit 
2000 $18,504.00 not applicable not applicable not applicable not applicable 
200 1 $37,256.00 $25,438.56 $1 1,817.44 $16,764.80* -$4,947.36 
2002 -$24,570.00 $25,438.56 -$50,008.56 $1 6,764.80* -$62,568.65 
2003 -$11,50 1 .OO $25,438.56 -$36,939.36 $12,599.99** -$64,125.16 
* Crediting the petitioner with the $10,420.80 actually paid to the beneficiary in 2001 and 2002. 
** Crediting the petitioner with the $14,625.61 actually paid to the beneficiary in 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
Under the principles of Matter of Sonegma, 12 I&N Dec. 612 (Reg. Comm. 1967), CIS may consider the 
totality of the circumstances affecting the petitioner's ability to pay the proffered wage. 
The record contains copies of investment account statements of the petitioner. Account statements are not among 
the three types of evidence listed in 8 C.F.R. 9 204.5(g)(2) as acceptable evidence to establish a petitioner's 
ability to pay a proffered wage. However, evidence such as account statements may be considered as 
supplemental evidence to the types of evidence required by the regulation. Where a petitioner is a private 
individual, the relevant tax returns are the Form 1040 U.S. Individual Income Tax Returns of the petitioner. 
Unlike the Form 1120 corporate income tax return, which contains a Schedule L balance sheet, a Form 1040 
individual tax return includes no balance sheet showing the assets and liabilities of the taxpayer. For this reason, 
any separate evidence of the assets and liabilities of the petitioner's owner does not duplicate information already 
found on the Form 1040 tax returns. 
The record contains a partial copy of an account statement dated December 3 1, 2000 with 
The statement consists of two pages of transactions, nearly all of them chec h transactions, except 
Although the heading for the statement gives the dates covered as January 1,2000 to December 
3 1,2000, the only transactions included on the partial copy submitted in evidence are those from March 16,2000 
through December 3 1, 2000. Highlighted on the copy are the two deposit entries, one a deposit of $1 00,000.00 
on March 16,2000 and the second a deposit of $300,000.00 on April 4,2000. On the copy, space in the right side 
of the statement is blank, suggesting that one or more columns have been omitted from the copy submitted in 
evidence. A partial heading of "Comm" appears at the top of the blank area. The account statement contains no 
information on the account balances after each transaction, information which is customarily found on account 
statements. 
Counsel states in his brief that theaccount statement is an example of the balances of the petitioner's 
portfolio assets. Counsel describes the Schwab account statement as showing 
 deposits for as high as 
$300,000.00." The grammar of counsel's assertion on this point is unclear. But under any reading of counsel's 
language, counsel's assertions do not accurately describe the information in the Schwab account statement. 
WAC-04-1 24-5 1903 
Page 6 
Nothing in the Schwab account statement indicates the balance in the account at any time. Moreover, the 
transactions immediately prior to the two deposit transactions are omitted from the copy in the record. In any 
event, the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Because of the absence of balance information, the account statement of - 
provides no further evidence to help establish the petitioner's ability to pay the proffered wage. ~oieover, the 
statement contains no reference to the name of the account holder. The petitioner's tax returns for 2000 and 2001 
mention interest and dividends received from, but no account number is stated. 
The record contains a partial copy of an account statement dated January 31, 2004 of the petitioner and her 
husband with OptionsXpress, of Chicago Illinois. The copy consists of pages one through four and page six of a 
six-page report. The report shows a total net portfolio value of $1 8,984.70. 
The record contains a partial copy of an account statement from Fidelity Investments dated June 27, 2002 for an 
account of the petitioner, as trustee for a family trust in her family's name. The copy consists of pages one and 
two of a three-page report. It shows holdings of shares in a mutual funds with total value of $63,269.83. 
The record contains a copy of an account statement from Franklin Templeton dated December 8, 1999 for three 
accounts of the petitioner and her husband as trustees for a family trust in their family name. The statements 
show the account values to be $44,67 1.90 for one account, $33,818.99 for a second account, and $32,443.76 for 
the third account. 
The record contains a copy of an account statement from Putnam Investments dated June 30, 2003 for an IRA 
account of the petitioner's husband. The statement shows the total value of the account to be $2,62 1.70. The 
record also contains a copy of an account statement from Putnam Investments dated June 30, 2003 for an IRA 
account of the petitioner. The statement shows the total value of the account to be $2,25 1.58. 
The record contains a copy of an account statement from ReliaStar Life Insurance Company dated December 16, 
1998 for an insurance policy owned by a family trust in the petitioner's family name, with the petitioner's 
husband as the insured person. The statement shows two payments of $1,140.00 each from the insurance 
account, made to two sub-accounts identified as Putnam mutual funds. The total values of the two mutual funds 
are stated to be $14,574.85. The record also contains a copy of another account statement on that same account, 
dated September 18, 2000, again showing two payments of $1,140.00 each from the insurance account, made to 
the two Putnam mutual funds. The total values of the two mutual funds are stated to be $31,273.27 as of 
September 18,2000. 
The record contains a copy of an account statement from the Bank of America, Rancho Cordova, California, 
dated November 28, 2001 for a checking account of the petitioner and her husband. The account shows an 
ending balance of $2 1,738.97. The record also contains a copy of another statement on that same account, dated 
February 26,2002, which shows an ending balance of $10,783.37. 
Assets held in the name of the petitioner's family trust cannot be considered as financial resources available to 
pay the beneficiary the proffered wage, absent any evidence explaining the permissible uses for such assets held 
in trust. Similarly, the life insurance policy owned by the family trust also cannot be considered to represent 
financial resources available to pay the proffered wage, absent any evidence that the policy has a cash value and 
that any such value would be available to the petitioner, rather than to the family trust. Also, assets held in IRA 
retirement accounts cannot be considered as financial resources available to pay the beneficiary the proffered 
WAC-04-1 24-5 1903 
Page 7 
wage, since the record contains no information on the terms under which such funds could be withdrawn by the 
petitioner or about any financial penalty which the ~etitioner would incur in withdrawing those funds. Finally, as 
discussed above, the account statement from provides no additional relevant 
evidence, since it lacks information on balances and since the evidence does not establish that the Schwab 
account belongs to the petitioner 
For these reasons, the only account statements in the record indicating funds potentially available to pay the 
proffered wage are the statements from the Bank of America showing checking account balances on November 
28,2001 of $21,738.97 and on February 26,2002 of $10,783.37, and the statement from OptionsXpress, showing 
a portfolio balance on January 3 1,2004 of $1 8,984.70. 
The record also includes copies of property tax bills for a house owned by the petitioner and her husband in Santa 
Clara, California. The address of the house is the same as the address of the petitioner and her husband shown on 
the ETA 750 and the work location address of the beneficiary, as well as the address of the petitioner on the 1-140 
petition. That information indicates that the house is the residence of the petitioner and her husband. 
A property tax bill dated September 5,2000 states the assessed value of the house as $2 18,869.00, and a bill dated 
September 1,2001 states the assessed value as $223,246.00. 
Copies of all of the above account statements and of the two property tax bills mentioned above were submitted 
for the record prior to the director's decision. On appeal, the petitioner submits additional evidence. 
The evidence newly submitted on appeal includes a residential appraisal report dated March 27, 2004 on the 
residence of the petitioner and her husband. The appraisal estimates the market value of the property as 
$524,000.00. The appraisal report states that the purpose of the appraisal is a refinancing of the property. 
 It 
states that a prior sale occurred on May 12, 1999, for which the purchase price was $35 1,500.00. That transaction 
apparently reflects the purchase of the property by the prior owners. The appraisal report does not state when the 
petitioner and her husband acquired the property, nor does it state the purchase price when they bought it. 
However, the property tax bill dated September 5, 2000, discussed above, shows that the petitioner and her 
husband owned the house by September 5,2000. 
The evidence newly submitted on appeal also includes a mortgage loan statement from Chase Bank dated 
November 12, 2004 for a mortgage on the petitioner's residence. The statement shows a principal balance of 
$170,617.18. 
The evidence newly submitted on appeal also includes a printout from an internet web page showing eight houses 
for sale in Santa Clara, California, as of December 1, 2004. The lowest offered price is $560,000.00 for a house 
generally similar to the petitioner's house, and the highest offered price is $778,000.00 for a house which is 
significantly larger than the petitioner's house. 
The evidence in the record on appeal is sufficient to establish that as of the priority date of January 16, 2001 the 
petitioner and her husband were the owners of a house valued at least at $35 1,500.00 and that by March 27, 2004 
the value of that house had risen to $524,000.00. The evidence also establishes that by November 12, 2004 the 
unpaid principal on a mortgage on the house was $170,617.1 8. Nonetheless, the record lacks any evidence 
indicating the nature and amount of any other liabilities of the petitioner and her husband. The record contains no 
statement by the petitioner of her total assets and total liabilities. Nor does the record contain any audited 
financial report on the net worth of the petitioner and her husband during any of the years at issue in the instant 
petition. Although the mortgage loan statement from Chase Bank shows the amount of the first mortgage balance 
WAC-04- 124-5 1903 
Page 8 
as of November 12, 2004, no evidence in the record indicates that the property was free of any other 
encumbrances. 
Moreover, although the Bank of America checking account statements in the record and the OptionsXpress 
account statement in the record indicate that funds were available to the petitioner on certain dates, those account 
statements cover only certain months within the three years at issue in the instant petition. 
It is noted that during 2002 and 2003, the adjusted net income of the petitioner and her husband was negative. 
For the foregoing reasons, considering the totality of the financial circumstances of the petitioner under the 
principles of Matter of Sonegava, 12 I&N Dec. 612 (Reg. Comm. 1967), the evidence in the record fails to 
establish the petitioner's ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains lawful permanent residence. 
In his decision, the director correctly stated the petitioner's net income in 2001, 2002 and 2003. The director 
found that those amounts failed to establish the petitioner's ability to pay the proffered wage in those years. 
The director did not consider the evidence of the petitioner's assets which was submitted prior to the 
director's decision. But, as discussed above, that evidence is insufficient to establish the petitioner's ability to 
pay the proffered wage during the relevant period. The decision of the director to deny the petition was 
correct, based on the evidence in the record before the director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. 
The petitioner has not met that burden. This decision is without prejudice to the filing of a new 1-140 petition 
based on the same approved ETA 750, supported by sufficient evidence for each of the years at issue, including 
for the years subsequent to 2003 and continuing to the present. 
ORDER: The appeal is dismissed.