dismissed EB-3 Case: Manufacturing

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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FILE: WAC 05 094 5 1990 Office: CALIFORNIA SERVICE CENTER Date: @R 0 2fla 
---. 
IN RE: Petitioner: 
Beneficiary: 
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. 9 1155@)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
rehuned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
---&% Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 05 094 5 1990 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. The director's 
decision will be affirmed in part and withdrawn in part. 
The petitioner is a manufacturers corporation. It seeks to employ the beneficiary permanently in the United 
States as an assistant manager. As required by statute, the petitiori is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the U. S. 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, and, the director determined that the petitioner had not 
established that the beneficiary is qualified to perform the duties of the proffered position with two years of 
qualifying employment experience as an assistant manager. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's denial dated August 23, 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)(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 nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 8 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must 
be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage. The petitioner must demonstrate this 
ability at the time the priority date is established and continuing until the 
beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited 
financial statements. 
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 C.F.R. 8 
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). 
WAC 05 094 5 1990 
Page 3 
Here, the Form ETA 750 was accepted on March 31, 1998.' The proffered wage as stated on the Form ETA 
750 is $21.66 per hour ($45,052.00 per year). The Form ETA 750 states that the position requires two years 
of experience in the proffered position. 
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.* 
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 if Labor, and, a letter 
from pecember 20,2004. According to the letter, a company- 
-as dissolved and a new company, was formed at the same location. 
Additional documents submitted were State of California corporate documents as follows: a Certificate of 
amendment stating that -amended its name on July 26, 2004, to I~c.;~ Articles of 
Incorporation for 
 Inc. dated May 1, 2000; a Certificate of Liability Insurance for 
 d/b/a 
a State of California, Certificate of Registration for 
 d/b/a as a garment 
manufacturer; a State of California, seller's permit as well as a Los Angeles County Health License. 
Ability to Pay the Proffered Wage 
Because the director determined the evidence, inter alia, submitted with the petition was insufficient to 
demonstrate the petitioner's continuing ability to pay the proffered wage beginning on the priority date (no 
information was provided), consistent with 8 C.F.R. 8 204.5(g)(2), the director requested on June 14, 2005, 
pertinent evidence of the petitioner's ability to pay the proffered wage beginning on the priority date. 
The director requested evidence in the form of copies of annual reports, U.S. federal tax returns with signatures 
and dates, and audited financial statements from 1998 to present. The director also requested California and 
Nevada Employment Development Department (EDD) Form DE-6, Quarterly Wage Reports for all employees 
for the last four quarters that were accepted by the States of California and Nevada. The director requested that 
the forms should include the names, social security numbers and number of weeks worked for all employees. 
As the Form ETA 750 stated that the petitioner employed the beneficiary since 1992, the director also requested 
that the petitioner provide copies of the beneficiary's W-2 Wage and Tax Statements for 1996 until the present. 
The director requested a job verification from the petitioner on its letterhead with the beneficiary's job title, 
duties, dates of employment and number of hours worked. 
1 
 It has been approximately nine 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 CIS 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). 
3 
 After the amendment changing the name of 
 Inc. on July 26, 2004, to Lipstick Inc., it would be 
incorrect to state that oes 
 The name of the company became Inc. 
WAC 05 094 5 1990 
Page 4 
In response to the director's request, the petitioner submitted, inter alia, a statement dated July 12, 2005, that 
the beneficiary was employed by for a period of 12 years; W-2 Wage and Tax Statements 
frommhc. Inc.1- or from to the beneficiary for the years 1996, 1999,2000,200 1, 
2002, 2003 and 2004; and, W-2 Wage and Tax summaries from to the beneficiary for 1997 and 
1998. 
Further, 
 Inc. d/Wa nd - submitted redacted California Employment Development 
Department (EDD) Form DE-6, Quarterly Wage Reports for 2002,2003,2004, and the first quarter of 2005. 
On the petition, the petitioner claimed to have been established in 1990 and to currently employ 35 workers. 
On the Form ETA 750B, signed by the beneficiary on March 20, 1998, the beneficiary did claim to have 
worked for the petitioner since February 1992. 
The director denied the petition on August 23, 2005, finding, inter alia, that the evidence submitted did not 
establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority 
date. 
On appeal on this issue, concerning the petitioner's ability to pay the proffered wage, counsel has submitted 
copies of the following documents to accompany the appeal: the director's decision; letters from 
dated July 19, 2005, and, September 19, 2005, a Certificate of Amendment stating that 
amended its name on July 26, 2004, to 
 Articles of Incorporation for 
 Inc. dated May 
1, 2000; a Certificate of Liability Insurance for 
 d/b/a 
 a State of California, Certificate of 
Registration for d/b/a as a garment manufacturer; and, a State of California, Seller's Permit 
as well as a Los Angeles Coun Health License; reviewed financial statements fiom 
 Inc., - 
Inc., or 
 Inc. d/b/a & for 1998, 1999, 2000,2001, 2002,2003 and 2004, as well as a reviewed 
financial statement as of April 30, 2005. Further, a statement fi-om counsel dated September 21, 2005 that 
was submitted along with the beneficiary's W-2 Wage and Tax statement for 1991 from Inc. of Ft. 
Lauderdale, Florida along with a pay statement to the beneficiary. 
Upon appeal, counsel has not identified or stated on the Form I-290B an erroneous conclusion of law or a 
statement of fact made by the director as a basis for the appeal. 
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 
' It is not clear fiom the record that 
 Inc. is a successor in interest to 
 Inc. or. 
If this matter is pursued, 
 be submitted concerning this issue. 
 This status requires 
documentary evidence that the petitioner has assumed all of the rights, duties, and obligations o'f the 
predecessor company. The fact that the petitioner is doing business at the same location as the predecessor 
does not establish that the petitioner is a successor-in-interest. In addition, in order to maintain the original 
priority date, a successor-in-interest must demonstrate that the predecessor had the ability to pay the proffered 
wage. Moreover, the petitioner must establish the financial ability of the predecessor enterprise to have paid 
the certified wage at the priority date. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 
1986). 
WAC 05 094 5 1990 
Page 5 
realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 CFR 
$ 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 circumstances affecting the petitioning business will be considered if the evidence 
warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 6 12 (BIA 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 consideredprima facie proof of the petitioner's ability to pay the proffered wage. In the 
wages for the ears stated: in 1996 from- 
from ds, $19,848.18; in 1999 fi-om 
$21,158.04; in 2001 from s, $24,115.16; in 2002 
$22,125.49, and from 
 119.93; in 2003, fi-omd/b/a 
Since the proffered wage is 
$45,052.00 per year, the petitioner has not demonstrated that it paid the beneficiary the proffered wage in the 
years examined. 
On appeal, counsel submitted the petitioner's reviewed financial statements for hm Inc., = 
Inc., or -c. d/b/a for 1998, 1999,2000,2001,2002,2003 and 2004, as well as a reviewed 
financial statement as of April 30, 2005. The regulation at 8 C.F.R. 8 204.5(g)(2) makes clear that where a 
petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those financial 
statements must be audited. An audit is conducted in accordance with generally accepted auditing standards 
to obtain a reasonable assurance that the financial statements of the business are free of material 
misstatements. The accountant's report that accompanied those financial statements makes clear that they are 
reviewed statements, as opposed to audited statements. The unaudited financial statements that counsel 
submitted with the petition are not persuasive evidence. Reviews are governed by the American Institute of 
Certified Public Accountants' Statement on Standards for Accounting and Review Services (SSARS) No. 1. 
and accountants only express limited assurances in reviews. As the account's report makes clear, the 
financial statements are the representations of management and the accountant expresses no opinion pertinent 
to their accuracy. The unsupported representations of management are not reliable evidence and are 
insufficient to demonstrate the ability to pay the proffered wage. 
No tax returns were submitted by the petitioner in response to the director's request for evidence dated June 
14,2005. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. $ 103.2@)(14). There was no explanation why tax returns were not submitted, 
and in light of the petitioner's statement in the petition that it has gross annual income of $3.5 million, 
inexplicable under the circumstances. 
The evidence submitted fails to establish that the petitioner has the continuing ability to pay the proffered 
wage beginning on the priority date. Thus, the AAO affirms the portion of the director's decision concerning 
this issue. 
The Beneficiary's Qualifications 
The director determined that the petitioner had not established that the beneficiary is qualified to perform the 
duties of the proffered position with two years of qualifying employment experience as an assistant manager. 
WAC 05 094 5 1990 
Page 6 
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 March 3 1, 1998. 
As already noted, 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). 
Upon appeal, counsel has not identified or stated on the Form I-290B an erroneous conclusion of law or a 
statement of fact as a basis for the appeal. 
To determine whether a beneficiary is eligible 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 
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. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 
1983); K.R.K. Iwine, 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 an assistant 
manager. In the instant case, item 14 describes the requirements of the proffered position as follows: 
14. Education ..................................... 
Grade School - 8 
High School - 4 
College Blank 
College Degree Required Blank 
Major Field of Study Blank 
Experience .................................... 
Job Offered .................................... 
YeardMonths 21- 
......................... 
Related Occupation. .Blank 
As stated above, 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. 
Item 15 of Form ETA 750A states the special requirements "Past Work Experience Letter." 
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 work experience as an assistant manager fi-om February 
1992 to present (i.e. March 20, 1998) for in Los Angeles, California. The job duties described are the 
same duties stated in ETA 750 A, Part 13. Before that employment, the beneficiary stated that he was an assistant 
manager for Inc., of Gardena, California, from January 1990 to February 1992. According to the 
information submitted, the beneficiary's duties there were similar to the job duties recited in Part 13 of the Form 
ETA 750A. The beneficiary does not provide any additional information concerning his employment background 
WAC 05 094 5 1990 
Page 7 
on that form. Lipstik Inc. provided a letter dated July 12,2005, stating that the beneficiary had been employed by 
Belt Boys and Lipstick companies, and, that the beneficiary was a reliable employee. 
The regulation at 8 C.F.R. (i 204.5(1)(3) provides: 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a 
description of the training received or the experience of the alien. 
(B) Skilled workers. If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or 
experience, and any other requirements of the individual labor certification, 
meets the requirements for Schedule A designation, or meets the requirements 
for the Labor Market Information Pilot Program occupation designation. The 
minimum requirements for this classification are at least two years of training or 
experience. 
According to a letter dated September 19, 2005, in the record the company 
 was closed, dissolved, 
and purchased by Inc. According to a letter from dated July 19,2005, the beneficiary was 
transferred to the 
 payroll on or about 2003. That letter was written by the Human Resources 
Department provi 
 address and title of the employer, and, it described the beneficiary's full-time 
duties as an assistant manger from 1992 through 2003. 
 Thus, the letter conforms to the regulatory 
requirements of 8 C.F.R. 5 204.5(1)(3)(ii)(a). 
The petitioner has submitted the beneficiary's W-2 statements and pay statements for pnor employers from 1996 
through 2004. The beneficiary's earliest employment is with~nc. fiom January 1990 to February 1992. 
The petitioner has submitted an afidavit dated September 17,2005, from a co-worker of the beneficiary at - 
Inc. company attesting that the beneficiary worked there as an assistant manager from 1991 to 1992. We find the 
evidence submitted on this issue credible. See 8 C.F.R. (i 103.2(b)(2)(i). 
 The evidence in the record 
demonstrates that the beneficiary acquired two years of qualifying employment experience prior to the 
priority date in 1998. 
Since the priority date is 1998, we find that the beneficiary acquired two years of experience as assistant 
manager in the manufacturers industry described in the Form ETA 750A, Part 13, from the evidence 
submitted into this record of proceeding and, thus the petitioner has demonstrated that he is qualified to 
perform the duties of the proffered position fiom the priority date. Therefore, we withdraw the portion of the 
director's decision concerning the beneficiary's qualifications. 
However, the evidence submitted fails to establish that the petitioner has the continuing ability to pay the 
proffered wage beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
(i 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.