dismissed EB-3 Case: Jewelry

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 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. 8 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a fine jewelry sales and repairs firm. It seeks to employ the beneficiary permanently in the 
United States as a jeweler. 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. 
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 of this case is documented in the record and is incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's April 25, 2006 decision denying the petition, the single issue in this case is 
whether the evidence establishes the petitioner's 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)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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. 9 204.5(g)(2) states: 
Ability ofprospective 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 lawhl 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 profitlloss 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. fj 204.5(d). The priority date in the instant 
petition is April 27, 2001. The proffered wage as stated on the Form ETA 750 is $14.00 per hour, which 
amounts to $29,120.00 annually. 
It may be noted that it has been approximately five years since the Application for Alien Employment 
Certification has been accepted and the proffered wage established. The employer certification that is part of 
the application 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." (ETA Form 750 
Part A, Section 23 b). 
The AAO reviews appeals on a de novo basis. See Dorr v. I.N.S. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). 
The AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
In the instant appeal, the petitioner submits a brief and additional evidence. 
Evidence submitted on appeal includes copies of complete bank statements for one account of the petitioner 
for 2001 and 2002 and for another account of the petitioner for 2002. Partial copies of those statements had 
been submitted previously. 
Other relevant evidence in the record includes copies of Form 1120s U.S. Income Tax Returns for an 
S Corporation of the petitioner for 2001, 2002, 2003, 2004 and 2005, copies of Form W-2 Wage and Tax 
Statements of the beneficiary for 2001, 2003 and 2004, copies of Form 941 Employer's Quarterly Federal 
Returns of the petitioner for 2001 and 2002, copies of both partial and complete bank statements for three 
accounts of the petitioner for 2001 and 2002, copies of corporate documents pertaining to the petitioner, and 
copies of documents pertaining to the work experience and education of the beneficiary. 
The file also contains an 1-140 petition filed on May 22, 2006 by a different petitioner on behalf of the same 
beneficiary. That petition is for a different position at a different pay rate. That petition was approved on 
June 24, 2006. However, the instant petition has not been withdrawn. Since the approved 1-140 petition was 
submitted by a different petitioner, the instant petition is not moot. 
On appeal in the instant petition, counsel states that evidence pertaining to the petitioner's net income, the 
petitioner's net current assets and the salary actually paid to the beneficiary is sufficient to establish the 
petitioner's ability to pay the proffered wage during the relevant period. Counsel also states that depreciation 
expenses should be combined with the petitioner's income as shown on its tax returns to determine the 
petitioner's net income. Counsel moreover states that the petitioner's assets, including cash on hand, should 
be considered as additional financial resources of the petitioner. Counsel.states that bank statements in the 
record show sufficient monthly balances to pay the salary for each month at issue. Based on the evidence in 
the record concerning the foregoing matters, counsel offers detailed calculations for 2001 and 2002, which are 
the years for which the director found the evidence to be insufficient. Counsel asserts that the evidence 
establishes the petitioner's ability to pay the proffered wage in each of those years. 
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. 
$204.5(g)(2). For each year at issue, the petitioner's financial resources generally must be sufficient to pay 
the annual amount of the beneficiary's 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. 612 (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 April 18, 2001, the beneficiary did not 
claim to have worked for the petitioner. 
Page 4 
On a Form G-325A submitted in support of an 1-485 application of the beneficiary to adjust status to 
permanent residence, the beneficiary states that his work experience includes work with the petitioner Roz 
Jewelers, Inc., as a jeweler from January 2001 until March 2001. The Form G-325A was signed by the 
beneficiary on May 9, 2003. The information on the G-325A about the beneficiary's employment with the 
Roz Jewelers, Inc., is inconsistent with the Form ETA 750B, which declares no such employment as of April 
18,2001. 
On a later form ETA 750B, signed by the beneficiary on May 18,2006 and submitted in support of the May 
22, 2006 petition the beneficiary again declares no employment by the petitioner 
information on the G-325A about such employment is therefore also inconsistent wit t e Form ETA 750B 
signed by the beneficiary on May 18,2006. 
hh The 
The record in the instant petition contains copies of Form W-2 Wage and Tax Statements of the beneficiary 
for 2001, 2003 and 2004. The beneficiary's Form W-2's show compensation received from the petitioner 
Roz Jewelers, Inc., as shown in the table below. 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage. 
2001 . $4,500.00 $29,120.00 $24,620.00 
2002 not submitted $29,120.00 $29,120.00 
2003 $10,000.00 $29,120.00 $19,120.00 
2004 $25,000.00 $29,120.00 $4,120.00 
2005 not submitted $29,120.00 $29,120.00 
The above information fails to establish the petitioner's ability to pay the proffered wage in any of the years at 
issue in the instant petition. 
The record also contains copies of Form 941 Employer's Quarterly Federal Returns of the petitioner for 2001 
and 2002. The quarterly reports for the year 2001 raise an evidentiary inconsistency with the Form W-2 
Wage and Tax Statement of the beneficiary for that year, which shows compensation from the petitioner in 
the amount of $4,500.00. The petitioner's quarterly reports for 2001 show wage and salary payments to a 
total of six employees over the course of the year, but the beneficiary's name does not appear on any of the 
quarterly reports for 2001. The quarterly reports are also inconsistent with the beneficiary's claim on the 
Form G-325A to have worked for the petitioner from January 2001 until March 2001. 
The Board of Immigration Appeals, in Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988), has stated, "It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice." The record contains no explanation for the inconsistencies in 
the evidence noted above. 
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 
Restaurant Corp. v. Suva, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldrnan, 736 F.2d 1305 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Tex. 
Page 5 
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 57 1 (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 an S corporation. The record contains copies of the petitioner's Form 
1120s U.S. Income Tax Returns for an S Corporation for 2000, 2001, 2002, 2003, 2004 and 2005. The record 
before the director closed on April 18, 2006 with the receipt by the director of the petitioner's submissions in 
response to a request for additional evidence which had been issued on January 18,2006. As of April 18, 2006 
the petitioner's tax return for 2005 was the most recent return available. 
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. Where an S 
corporation has income from sources other than from a trade or business, that income is reported on Schedule K. 
See Internal Revenue Service, Instructions for Form 1120s (2003), available at http://www.irs.gov/pub/irs- 
prior/i 1 120s--2003 .pdf; Instructions for Form 1 120s (2002), available at http://www.irs.gov/pub/irs-prior/i 1 120s- 
-2002.pdf. 
 Similarly, some deductions appear only on the Schedule K. 
 See Internal Revenue Service, 
Instructions for Form 4562 (2003), at 1, available at http://www.irs.gov/pub/irs-prior/i4562--2003.pdf; Internal 
Revenue Service, Instructions for Form 1120s (2003), at 22, available at http://www.irs.gov/pub/irs-prior/il120s- 
-2003 .pdf. 
Where the Schedule K has relevant entries for either additional income or additional deductions, net income is 
found on Line 23 of the Schedule K, for income. 
In the instant petition, the petitioner's tax returns indicate small amounts of income from activities other than 
from a trade or business and small additional relevant deductions. Therefore the figures for ordinary income on 
line 21 of page one of the petitioner's Form 1120s tax returns do not include portions of the petitioner's income 
or all of its relevant deductions. For this reason, the petitioner's net income must be considered as the amount 
shown on Line 23 of the Schedule K, for income, as shown in the table below. 
In the table, the $4,500.00 shown on the beneficiary's Form W-2 for 2001 is not credited to the petitioner, since 
that information is inconsistent with other evidence in the record, as discussed above. Also, the record contains 
no evidence of any wage payments may be the petitioner to the beneficiary in 2002 or 2005. 
Page 6 
Tax Net income Wage increase needed Surplus or 
year or (loss) to pay the proffered wage (deficit) 
2000 $26,08 1 .OO not applicable not applicable 
2001 $(4,241 .OO) $29,120.00* $(33,361 .OO) 
2002 $(8,690.00) $29,120.00* $(37,810.00) 
2003 $30,980.00 $19,120.00** $1 1,860.00 
2004 $37,030.00 $4,120.00** $32,910.00 
2005 $38,105.00 $29,120.00* $8,985.00 
* The full proffered wage. 
**Crediting the petitioner with the compensation actually paid to the 
beneficiary in 2003 and 2004. 
The above information is sufficient to establish the petitioner's ability to pay the proffered wage in 2003,2004 
and 2005, but it fails to establish the petitioner's ability to pay the proffered wage in the years 2001 or 2002. 
Counsel asserts that depreciation deductions should be added to the petitioner's income as shown on its tax 
returns. While it is true that in any particular year a taxpayer's depreciation deductions may not reflect the 
taxpayer's actual cash operating expenses, depreciation deductions do reflect actual costs of operating a business, 
since depreciation is a measure of the decline in the value of a business asset over time. See Internal Revenue 
Service, Instructions for Form 4562, Depreciation and Amortization (Including Information on Listed Propertyl 
(2004), at 1-2, available at http://www.irs.gov/pub/irs-pdfli4562.pdf. For this reason, when a petitioner chooses 
to rely on its federal tax returns as evidence of its ability to pay the proffered wage, CIS considers all of the 
petitioner's claimed tax deductions when evaluating the petitioner's net income. See Elatos Restaurant Corp. 632 
F. Supp. at 1054. If a petitioner does not wish to rely on its federal tax returns as evidence of its ability to pay the 
proffered wage, the petitioner is free to rely on one of the other alternative forms of required evidence as specified 
in the regulation at 8 C.F.R. $ 204.5(g)(2), namely, annual reports or audited financial statements. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a corporate taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. If a corporation's net current assets are equal to or greater than 
the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield the amounts for year-end 
net current assets as shown in the following table. 
As in the income analysis above, the $4,500.00 shown on the beneficiary's Form W-2 for 2001 is not credited to 
the petitioner, since that information is inconsistent with other evidence in the record. The record contains no 
evidence of any wage payments may be the petitioner to the beneficiary in 2002 or 2005. 
Tax 
year 
Net 
current Wage increase needed Surplus or 
assets to pay the proffered wage (deficit) 
2000 $1 1,676.00 not applicable not applicable 
200 1 $4,792.00 $29,120.00* $(24,328.00) 
2002 $18,244.00 $29,120.00* $(10,876.00) 
2003 $(8,40 1 .OO) $19,120.00** $(27,52 1 .OO) 
2004 $1,863.00 $4,120.00** $(2,257.00) 
2005 $7,787.00 $29,120.00* $(21,333.00) 
* The full proffered wage. 
**Crediting the petitioner with the compensation actually paid to the 
beneficiary in 2003 and 2004. 
The above information fails to establish the petitioner's ability to pay the proffered wage in any of the years at 
issue in the instant petition. 
Counsel advocates combining the petitioner's net income with its net current assets to demonstrate the 
petitioner's ability to pay the proffered wage. This approach is unacceptable because net income and net 
current assets are not cumulative. Net income in any given year is one of the factors which affect the 
petitioner's assets and liabilities at the end of the year. Therefore, combining the net income and net current 
assets could double-count certain funds, such as cash on hand or, in the case of a taxpayer who reports taxes 
pursuant to accrual convention, accounts receivable. For these reasons, net income and net current assets 
cannot be combined in order to establish the petitioner's ability to pay the proffered wage. 
Counsel also states that the petitioner's assets are additional evidence of the petitioner's ability to pay the 
proffered wage. Counsel's assertions fail to distinguish between total assets and current assets, and they also 
fail to take into account either total liabilities or current liabilities. As discussed above, CIS does not rely on 
total assets, but on net current assets, since net current assets may be converted into cash within a reasonable 
time if needed to pay the proffered wage. CIS rejects the idea that the petitioner's total assets should be 
considered in the determination of the ability to pay the proffered wage. 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, be considered as financial resources 
available to pay the proffered wage. 
As noted above, the record contains copies of Form 941 Employer's Quarterly Federal Returns of the petitioner 
for 2001 and 2002. Those quarterly reports show total wage payments which are generally consistent with the 
information on the petitioner's Form 1120s tax returns for 2001 and 2002, but the quarterly reports for 2001 
and 2002 may not be complete. For some quarters separate Form 941's were filed under each of the 
petitioner's different trade names, for some quarters a Form 941 was filed under only one trade name, and for 
one quarter the Form 941 is filed under all three trade names. The total of the wages shown on the Form 
941's for 2001 is $49,100.00, which is more than the amount of $43,100.00 claimed by the petitioner as 
deductions for salaries and wages that year. The difference between those two figures is $6,000.00, which 
does not match the amount of $4,500.00 shown on the beneficiary's Form W-2 from the petitioner for 2001. 
Therefore an analysis of the Form 941's for 2001 fails to resolve the evidentiary inconsistencies noted above 
concerning the beneficiary's Form W-2 for 2001. 
The total of the wages shown on the petitioner's Form 941's for 2002 is $53,709.00, which matches the 
amount of $53,709.00 claimed by the petitioner as deductions for salaries and wages that year. 
For the foregoing reasons, the petitioner's Form 941 quarterly reports provide no significant additional 
information to help establish the petitioner's ability to pay the proffered wage. 
The record also contains copies of bank statements for three accounts of the petitioner issued in 2001 and 2002. 
Each of the accounts is the petitioner's name and in one of three different trade names used by the petitioner, 
apparently referring to three different lines of business carried on by the petitioner. One trade name ism 
second isand the third is 
 The petitioner initially submitted copies of 
only the first page of each monthly statement for those three accounts but later submitted complete copies of most 
of the statements. including some of which were submitted for the first time on anneal. The record now contains 
I I 
complete copies 'of the 
statements for 200 1, copies of the first page of each of the - 
statements for 2001 and 2002, complete copies of the 
lstatements for 2002 and comp e e copies 
1 through December 2002. 
- 
of the--statements for ~o;ember 200 
Bank 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. While that regulation allows additional material "in 
appropriate cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. 
fj 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Moreover, bank 
statements show the amount in an account on a given date, and do not necessarily show the sustainable ability to 
pay a proffered wage. Funds used to pay the proffered wage in one month would reduce the monthly ending 
balance in each succeeding month. 
On the petitioner's bank statements the ending balances are as follows: 
January 
February 
March 
April 
May 
June 
July 
August 
September 
October 
November 
December 
Total 
2002: 
January 
February 
March 
April 
May 
June 
July 
August 
September 
October 
November 
December 
* No statements were submitted for May 2002; ending balances for that month are taken from the 
begnning balances on the June 2002 statements. 
The average of the combined ending balances over the twenty-four months shown above is $46,971.18. That 
amount is greater than the annual proffered wage of $29,120.00. The lowest combined ending balance is 
$2 1,8 13.97 in November 2002, an amount equal to approximately nine months of the proffered wage. 
rief, counsel offers a month-by-month analysis of the ending balances in the statements for th- 
for the year 2001 and asserts that the ending balances are sufficient to pay the monthly proffered wage in 
those months. -counsel refers to another account if the petitioner as a "second account," but offers examples of 
balances both from the and from th- account. (Brief, page 5). For the 
year 2002, counsel account as the petitioner's primary checlung account and refers to 
another account as a "secondary checlung account," even though the record contains statements from all three 
accounts for the year 2002. (Brief, page 7). Counsel apparently failed to note that the record contains copies of 
statements for three separate bank accounts of the petitioner. 
For the above reasons, the bank statement evidence in the record is stronger than is indicated by the analysis in 
counsel's brief. Counsel focuses only on statements for single accounts, and asserts that the ending balances are 
more than sufficient to pay the monthly proffered wage each month. But in fact, the combined balances on all 
three accounts in each month exceed the amount of the annual proffered wage in all but four months during 2001 
and 2002. 
Nonetheless, no evidence was submitted indicating how to reconcile the year-end closing balances shown on the 
bank statements with the year-end figures for cash assets as shown on the Schedule L's of the petitioner's Form 
1120s tax returns for 2001 and 2002. On the Schedule L for 2001, the year-end cash assets are stated as 
$179,811.00, while the combined balances on the three bank statements dated December 3 1,2001 show a total of 
$140,599.5 1. On the schedule L for 2002, the year-end cash assets are stated as $1 16,93 1.00, while the combined 
balances on the three bank statements dated December 3 1,2002 show a total of $45,843.1 1. The record contains 
no explanation for those inconsistencies. See Matter of Ho, 19 I&N Dec. 582, 591 -592 (BIA 1988). 
Moreover, no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements 
show additional available funds that are not reflected on its tax returns, such as the cash specified on Schedule L 
that is considered in determining a corporate petitioner's net current assets. An analysis of the petitioner's tax 
returns for 2001 and 2002 indicates that petitioner had substantial ongoing expenses for items other than salaries 
and wages. 
The petitioner's Form 1120s for 2001 shows gross receipts or sales of $663,477.00, less returns and allowances 
of $3,102.00, for a balance of gross receipts or sales of $660,375.00. The return shows the cost of goods sold as 
$419,349.00, of which $372,181.00 is for purchases. Since the petitioner is a jewelry company, its purchases 
presumably were mainly for jewelry intended for retail resale. The itemization of cost of goods sold shows no 
amounts spent for cost of labor. 
In the deductions portion of the Form 1 120s for 2001, the return shows no expenses for compensation of officers 
and only $43,100.00 for salaries and wages. The return shows expenses for rents of $189,604.00, an average of 
$15,800.00 per month in rents. 
Similarly, the petitioner's Form 1120s for 2002 show gross receipt or sales of $586,575.00, with no adjustment 
for returns and allowances. The return shows cost of goods sold as $295,140.00, all of which is for purchases. 
As in the 2001 return, the itemization of cost of goods sold in 2002 shows no amounts spent for cost of labor. 
In the deductions portion of the Form 1120s for 2002, the return shows no expenses for compensation of officers 
and $53,709.00 for salaries and wages. The return shows expenses for rents of $210,622.00, an average of 
$17,552.00 per month in rents. 
Based on the deductions for salaries and wages in the above returns, the payment of the proffered wage of 
$29,120.00 to the beneficiary would have represented a 68% increase in the petitioner's payroll in 2001 and a 
54% increase in the petitioner's payroll in 2002. 
Although the petitioner had significant cash balances in its three checlang accounts throughout 2001 and 2002, 
the above analysis of the petitioner's Form 1120s tax returns for those years does not indicate that those cash 
balances would represent hds available to pay the proffered wage to the beneficiary in those years. 
The record contains no other evidence relevant to the petitioner's financial situation. 
Based on the foregoing analysis, 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 her decision, the director correctly stated the petitioner's net losses in 2001 and 2002. The director also 
calculated the petitioner's net current assets for each of those years. For 2001, the director's analysis contains 
an apparent minor calculation error. Also, the analysis contains an apparent typographical error, apparently 
omitting the word "not" from one sentence pertaining to the year 2001, which produces an analysis 
inconsistent with the director's finding that the petitioner had not established the ability to pay the proffered 
wage as of the April 27,2001 priority date. 
Although the director's decision contains errors as noted above, 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. 
Beyond the decision of the director, evidence in the beneficiary's file contains inconsistent information on the 
beneficiary's education. 
The Application for Alien Employment Certification, Form ETA-750A, blocks 14 and 15, sets forth the 
minimum education, training and experience that an applicant must have for the position of Jeweler. On the ETA 
750A submitted with the instant petition, blocks 14 and 15 describe the requirements of the offered position as 
follows: 
14. Education (number of years) 
Grade School [blank] 
High School [blank] 
College [blank] 
College Degree Required [blank] 
Major Field of Study [blank] 
Training - yrs [blank] 
Experience 
Job Offered Yrs 2 
Related Occupation Yrs [blank] 
Related Occupation (specify) [blank] 
1 5. Other Special Requirements [blank] 
The beneficiary states his or her qualifications on Form ETA 750B. On the ETA 750B submitted with the instant 
petition was signed by the beneficiary on April 18, 2001. On that ETA 750B, in block 11, for information on the 
names and addresses of schools, colleges and universities attended (including trade or vocational training 
facilities), the beneficiary states the following: 
Schools, Colleges Degrees or Certificates 
and Universities, etc. Field of Study From To Received 
Board of secondary Education Commerce 04/75 06/77 SSC 
Karachi, Palustan 
Board of Higher Education Commerce 09/77 09/79 HSC 
Karachi, Palustan 
[remaining rows blank] 
On the ETA 750B submitted with the instant petition, in block 15, for information on the beneficiary's work 
experience the beneficiary states the following: 
Name and Address Kind of 
of Employer Name of Job From To Business 
unemployment [blank] 07/99 present [blank] 
[remaining row blank] 
In support the 1-140 petition submitted on May 22, 2006, that petitioner submitted a separate ETA 750A, 
Application for Alien Employment Certification, approved by the Department of Labor. On that ETA 750A, 
blocks 14 and 15 describe the requirements of the offered position of Operation Manager as follows: 
14. Education (number of years) 
Grade School blank] 
High School blank] 
College 4 
College Degree Required Business Administration 
Major Field of Study 
 or its related field 
Training - yrs blank] 
Experience 
Job Offered Yrs 2 
Related Occupation Yrs [blank] 
Related Occupation (specify) blank] 
15. Other Special Requirements [blank] 
The ETA 750 submitted in support of the second petition was originally for a different beneficiary. That person's 
name also appears as one of the employees of the petitione ., in the employer's quarterly wage 
reports for the second, third and fourth quarters of 2001 quarters of 2002. That fact 
suggests that a cooperative relationship may exist between the second petitioner and the instant petitioner. 
The 1-140 petition submitted on May 18,2006 by was on behalf of the beneficiary in 
the instantpetition, and was supported by a new Form ETA 750B stating the qualifications of the beneficiary. 
That ETA 750B was signed by the beneficiary on May 18, 2006. On that ETA 750B, in block 11, for 
information on the names and addresses of schools, colleges and universities attended (including trade or 
vocational training facilities), the beneficiary states the following: 
Schools, Colleges Degrees or Certificates 
and Universities. etc. Field of Study From To Received 
Board of Secondary Education Commerce 04/75 06/77 SSC 
Karachi, Palustan 
Board of Higher Education Commerce 09/77 09/79 HSC 
Karachi, Palustan 
U. of Karachi Commerce 06/80 06/82 Bachelor 
Karachi, Palustan 
The Institute of Cost and Accounting and 06/86 06/87 Master of Commerce 
Management Accountants Management 
of Palustan 
[remaining row blank] 
On the ETA 750B for the beneficiary submitted with the petition b 
 , in block 15, for 
information on the beneficiary's work experience the beneficiary sta 
Name and Address Kind of 
of Employer Name of Job From To Business 
Operation 1 112004 present Jewelry sales 
Manager and repairs 
C 
Jeweler 09/03 10/04 Jewelry sales 
and repairs 
unemployment [blank] 06/02 08/03 [blank] 
Jeweler 
Jeweler 
General 
Manager 
Jewelry sales 
and repairs 
Jewelry sales 
and repairs 
04/88 02/94 Jewelry sales 
and repairs 
[remaining row on attachment sheet blank] 
Significant differences in the beneficiary's education appear on the two ETA 750B7s signed by the 
beneficiary. On the ETA 750B submitted in support of the instant petition, signed by the beneficiary on April 
18, 2001, the beneficiary states education only at two institutions, one a board of secondary education and the 
other a board of higher education. The degrees listed are "SSC" and "HSC" respectively. According to 
school certificates in the record, those abbreviations stand for "Secondary School Certificate" and "Higher 
Secondary Certificate." The Secondary School Certificate was awarded based on an examination taken in 
June 1977 and the Higher Secondary Certificate was awarded based on an examination taken in September 
1979. 
On the ETA 750B submitted in support of the second petition, signed by the beneficiary on May 18,2006, the 
beneficiary states the study at the foregoing institutions, but also states education at the University of Karachi 
until June of 1982, with the award of a Bachelor's degree, and education at the Institute of Cost and 
Management Accountants until June of 1987 with the award of a Master of Commerce degree. Certificates 
documenting those two degrees appear in the record in the second 1-140 petition. That record also contains a 
copy of an evaluation report dated May 19, 2006 by the Foundation for Educational Services, Inc., finding 
that the beneficiary's education is the equivalent to a Bachelor's degree in business administration from a 
regionally accredited college or university in the United States. 
The instructions on the Form ETA 750, Part B, block 11 require the beneficiary to state "Names and 
Addresses of Schools, College and Universities Attended (included trade or vocational training facilities." 
(ETA 750B, block 11). The beneficiary's failure to state his studies for his Bachelor's degree and for his 
Master of Commerce degree on the ETA 750B submitted in support of the instant petition was a material 
omission of information required on that form. Information about the beneficiary's degrees is relevant to the 
instant petition because it shows that the beneficiary was qualified as a professional in a field other than one 
relevant to the skilled worker position of jeweler, which is the job offered in the instant petition. That 
information, in turn, is relevant to the issue of the petitioner's intention to offer full-time permanent 
employment to the beneficiary. 
The regulation at 8 C.F.R. fj 204.5(c) states in pertinent part, "Any United States employer desiring and intending 
to employ an alien may file a petition for classification of the alien under section 203(b)(l)(B), 203(b)(l)(C), 
203(b)(2), or 203(b)(3) of the Act." The instant petition has been filed under section 203(b)(3) of the Act. 
Moreover, the omission of required material information from the ETA 750B signed by the beneficiary on 
April 18, 2001 constituted a misrepresentation by the beneficiary. Section 212(a)(6)(C) of the Act states in 
pertinent part, "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has 
sought to procure or has procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible." Act $ 212(a)(6)(C)(i). 
Of course, if the beneficiary did not obtain a Bachelor's degree and a Master of Commerce degree, the 
information on the ETA 750B in the instant petition could be accurate, but the ETA 750B accompanying the 
second petition would thereby contain misrepresentations. In any event, the record contains no explanation 
for the inconsistencies in the evidence noted above. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 
1988). 
In summary, the evidence 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. Beyond the decision of the 
director, the Form ETA 750B of the beneficiary submitted in support of the instant petition contains 
information inconsistent with that in a different Form ETA 750B of the beneficiary submitted in support of an 
1-140 petition by a different petitioner. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.