dismissed EB-3 Case: Music Education

MATTER OF A-0-A-/S-B-C-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 8, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a Catholic school, seeks to permanently employ the Beneficiary as an elementary 
school music teacher under the immigrant classification of professional. See Immigration and 
Nationality Act (the Act) § 203(b)(3), 8 U.S.C. § 1153(b)(3).1 The Director, Nebraska Service 
Center, denied the petition. The matter is now before us on appeal. The appeal will be dismissed. 
The Director stated that the hourly wage for a full-time, permanent position cannot be less than the 
annual prevailing wage for that position, and determined that the proffered wage was not 
commensurate with the prevailing wage for the proffered position. The Director also determined 
that the Petitioner had not established that it had the continuing ability to pay the Beneficiary the 
required wage beginning on the priority date of the visa petition. 
On appeal, the Petitioner submits a brief, but no additional evidence. The record shows that the 
appeal is properly filed, timely, and makes a specific allegation of error in Jaw 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. 
We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). We consider all pertinent evidence in the record, including new evidence properly submitted 
upon appeal. 
I. OFFERED WAGE MUST EQUAL OR EXCEED PREVAILING WAGE 
The Director stated that the hourly wage for a full-time, permanent position cannot be less than the 
annual prevailing wage for that position, and determined that the proffered wage was not 
commensurate with the prevailing wage for the proffered position. The Petitioner does not address 
this issue on appeal. 
1 Section 203(b )(3)(A)(ii) of the Act provides for the granting of preference classification to qualified immigrants who 
hold baccalaureate degrees and are members of the professions. 
(b)(6)
Matter of A-0-A-/S-B-C-S-
The Petitioner indicated at Part 6 of the Form I-140, Immigrant Petition for Alien Worker, that the 
proposed job is a full-time, permanent position, and that the rate of pay will be $18.26 per hour. The 
Form I-140 does not indicate that the job offer includes 15 weeks without pay. The Form I-140 is 
accompanied by an ETA Form 9089, Application for Permanent Employment Certification, certified 
by the U.S. Department of Labor (DOL). The prevailing wage listed at Part F.5. ofthe ETA Form 
9089 is $37,990 per year. Part G ofthe ETA Form 9089 indicates that the offered wage is $18.26 per 
hour. The ETA Form 9089 does notindicate that the job offer includes 15 weeks without pay. The 
labor certification indicates that the Petitioner used the Occupational Employment Statistics (OES) 
wage survey as its prevailing wage source, under category 25-2021 (elementary school teachers, 
except special education), Level I 
. 
Wages for the OES survey may be reported either as hourly wages or annual salaries. For full-time 
workers, annual wages are generally calculated by multiplying an hourly wage by a "year-round, 
full-time" hours figure of 2,080 hours. Bureau of Labor Statistics, Occupational Employment 
Statistics, Occupational Employment and Wages, May 2014, 
http://www.bls.gov/oes/current/oes25202l.htm (last modified March 25, 2015). Conversely, when a 
wage is reported as an annual wage, hourly wages may be calculated by dividing the annual wage by 
the number of annual hours to be worked. In the prevailing wage rate for elementary school 
teachers is reported as an annual wage and not an hourly wage, since teachers are typically paid an 
annual salary. Bureau of Labor Statistics, Occupational Employment Statistics, May 2014 State 
Occupational Employment and Wage Estimates, 
http://www.bls.gov/oes/current/oes_gu.htm#21-0000 (last modified March 25, 2015). 
The record contains a contract of temporary employment between the Petitioner and the Beneficiary 
signed on August 1, 2012, for the school year 2012-2013. It states that the Petitioner shall pay the 
Beneficiary "the sum of$18.26 per hour adjusted for school year, school day." The record contains a 
similar contract of temporary employment between the Petitioner and the Beneficiary signed on July 
29, 2014, for the school year 2014-2015, except that the rate of pay was raised to "$18.53 per hour 
adjusted for school year, school day." 
The Petitioner submitted a statement dated July 29, 2014, from 
stating that the Petitioner offers the Beneficiary "full-time permanent employment" with a salary of 
"no less than $18.26 per hour for a nine month school year." The Petitioner also submitted a separate 
statement dated July 29, 2014, from stating that 15 weeks of the 
position are non-paid (including various holidays and a summer break) and 37 weeks are paid at 
$18.26 per hour. 2 Therefore, the Petitioner calculated that the adjusted prevailing wage is $27,034 
per year based on 37 weeks of paid employment (37 weeks x 40 hours per week x $18.26 hour). 
However, the Petitioner's calculation ofthe prevailing hourly wage rate is incorrect. The Petitioner 
calculated the $18.26 hourly wage rate by dividing the annual prevailing wage rate ($37,990) by 
2080 hours. However, in this case, the Petitioner has stated that the 
Beneficiary wili only work 1480 
2 The statement indicates that for the 2014-2015 school year, the Beneficiary will be paid $18.53 per hour. 
2 
(b)(6)
Matter of A-0-A-/S-B-C-S-
hours per year (3 7 weeks x 40 hours). Therefore, the prevailing hourly wage rate would be 
approximately $25.67 per hour ($37,990-:- 1480 hours). 
The Act requires that the hiring of a foreign worker will not adversely affect the wages and working 
conditions of United States workers comparably employed. The wages offered to a foreign worker 
must equal or exceed the prevailing wage rate for the occupational classification in the area of 
employment. 3 See 20 C.P.R. §§ 656.10(c), 656.40, 656.41. The annual prevailing wage for the full~ 
time, permanent position of an elementary school music teacher in as stated on the labor 
certification, is $37,990.00 per year. The Petitioner has offered the Beneficiary an annual wage of 
$27,034.00 per year. Therefore, the wages offered to the Beneficiary do not equal or exceed the 
prevailing wage rate for the occupational classification in the area of employment. The Director 
properly denied the petition for this reason. 
II. ABILITY TO PAY THE REQUIRED WAGE 
The regulation at 8 C.F;R. § 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 prospec~ive 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 the Service. 
The petitioner must demonstrate the continuing ability to pay the required wage beginning on the 
priority date, which is the date the ETA Form 9089.was accepted for processing by any office within 
the employment system of the DOL. See 8 C.P.R. § 204.5(d). Here, the ETA Form 9089 was 
accepted on June 23, 2013. 
3 According to 20 C.F.R. § 656.10(c), the employer must certify to certain conditions of employment on the ETA Form 
9089 under penalty of perjury under 18 U.S.C. § 1621 (2). Failure to attest to any of the conditions will result in a denial 
of the application. On May 21, 2014, the Petitioner signed the labor certification and certified that the offered wage 
equals or exceeds the prevailing wage; and that the job opportunity is for full-time, permanent employment. 
3 
(b)(6)
Matter of A-0-A-/S-B-C-S-
The record indicates that the Petitioner is structured as a nonprofit corporation and is not required to 
file tax returns.4 On the petition, the Petitioner claimed to have been established in and to 
. currently employ 51 workers. On the ETA Form 9089, signed by the Beneficiary on May 21, 2014, 
the Beneficiary claimed to have worked for the Petitioner since January 7, 2009, as an elementary 
school music teacher. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing 
of an ETA Form 9089 establishes a priority date for any immigrant petition later based on the ETA 
Form 9089, 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 required 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'l 
Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United 
States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial 
resources sufficient to pay the required wage, although the totality of the circumstances affecting the 
petitioning business will be considered if the evidence warrants such consideration. See Matter of 
Sonegawa, 12I&N Dec. 612 (Reg'l Comm'r 1967). 
In determining the petitioner's ability to pay the required wage during a given period, USCIS 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 required wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the required wage. In the instant case, the Petitioner submitted the 
following wage documents for the Beneficiary: 
• 2010 IRS Form W-2 
wages that year; 5 
• 2011 IRS Form W-2 
wages that year; 
• 2012 IRS Form W-2 
gross pay that year; and 
. which shows that the Petitioner paid the Beneficiary $28,789.30 in 
, which shows that the Petitioner paid the Beneficiary $26,155.76 in 
.· which shows that the Petitioner paid the Beneficiary $25,341.44 in 
4 The Petitioner asserts that it operates under the a bona-fide non-profit religious organization, 
and that it is exempt from taxation under the Internal Revenue Code. The Petitioner submitted a Certification from the 
Department of Revenue and Taxation from the Government of dated March 6, 2002, which shows that the 
is a "duly registered non-profit tax exempt corporation." The Petitioner also submitted a Certificate 
of Transacting Business under a Fictitious Name, which indicates that the operates under 
numerous fictitious names, including and The 2012 Official 
Catholic Directory submitted by the Petitioner lists under the 
5 The labor certification application indicates that the Beneficiary has worked for the Petitioner in H-18 nonimmigrant 
status since 2009. The Petitioner submitted two Forms 1-797 A, Notices of Action, for the Beneficiary. The notices 
indicate thatthe first Form I-129, Petition for a Nonimmigrant Worker, was approved on October 7, 2008, with an H-1B 
nonimmigrant validity period of October 1, 2008, to September 14, 2011; and the second Form I-129 was approved on 
August 3, 2011, with an H-18 nonimmigrant validity period of September 15,2011, to September 14,2014. 
4 
(b)(6)
Matter of A-0-A-/S-B-C-S-
• 2013 IRS Form W-2 , which shows that the Petitioner paid the Beneficiary $12,000 in 
gross pay that year. 
The Petitioner indicated that the Beneficiary had been on unpaid medical leave, resulting in a 
reduction in salary payments starting in 2013. The Petitioner submitted a letter dated May 17, 2014, 
from indicated that 
he has treated the Beneficiary as a patient since September 2013. He stated that the Beneficiary was 
on medical leave from November 2012 to May 2013 in the Philippines, where she was being treated 
for and that she continued with treatments from August 2013, to March 2014, with 
at indicated that the Beneficiary's work schedule was 
reduced for the 2013-2014 school year as a result of these treatments. While the reasons for her 
recued work schedule may be relevant in the H-1B nonimmigrant context, they do not alter our 
calculation of the wages actually paid to the Beneficiaryby the Petitioner in any given year. 
The priority date in this case is June 23, 2013. The Petitioner has not established that it employed 
and paid the Beneficiary the full required wage in 2013, but it did establish that it paid $12,000 in 
partial wages that year. The Petitioner must establish that it can pay the difference between the 
wages actually paid to the Beneficiary and the required wage in 2013. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the required wage from the priority date onward, USC IS will next examine the net income 7 figure 
reflected on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d Ill (1st Cir. 2009); Taco Especial v. 
Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 
2011 ). Reliance on federal income tax returns as a basis for determining the petitioner's ability to 
pay the required 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 Haw., 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. 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). Reliance on the petitioner's wage expense 
is misplaced. Showing that the petitioner paid wages in excess of the required wage is insufficient. 
6 The record also contains a letter dated May 13, 2104, from stating that the 
Beneficiary was diagnosed with in November 2012; that she received and in the 
Philippines; and that she continued her treatment in from August 2013 to May 2014. 
7 A nonprofit organization issues a statement of activities (income statement). The statement of activities reports 
revenues and expenses according to three classifications of net assets: unrestricted net assets, temporarily restricted net 
assets and permanently restricted net assets. The statement of activities explains how net assets changed from one date to 
another. Net assets generally increase when revenues are recorded and decrease when expenses are recorded. See 
Financial Accounting Standards Board (FASB) Accounting Standards Codification® Topic 958, https://asc.fasb.org (last 
visited January 4, 2016). In a for-profit business, revenues minus expenses is called net income. In a nonprofit 
organization, the change in net assets is a surplus or deficit that is carried forward. 
5 
Matter of A-0-A-/S-B-C-S-
In K.C.P. Food, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now USCIS, 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. The court 
specifically rejected the argument that the Service should have considered income before expenses 
were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross 
profits overstate an employer's ability to pay because it ignores other necessary expenses). 
The record before the Director closed on February 27, 2015, with the receipt by the director of the 
Petitioner's submissions in response to the Director's request for evidence (RFE) dated December 
11, 2014. The Petitioner did not submit its 2013 audited financial statement or 2013 annual report to 
report its revenues and expenses. The Director noted in his decision that where federal tax returns 
are not available, the regulation at 8 C.F.R. § 204.5(g)(2) requires annual reports or audited financial 
statements to be submitted by the Petitioner. Therefore, for the year 2013, the Petitioner did not 
establish that it had sufficient surplus to pay the required wage. 
If the net income the petitioner demonstrates it had available during the relevant period, if any, 
added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the 
required wage or more, USCIS will review the petitioner's net current assets. 8 Net current assets are 
the difference between the petitioner's current assets and current liabilities.9 If the total of the 
petitioner's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to 
or greater than the required wage, the petitioner is expected to be able to pay the required wage using 
those net current assets. The Petitioner did not submit its 2013 audited financial statement or 2013 
annual report to demonstrate its net current assets as required by the regulation at 8 C.F.R. § 
204.5(g)(2). Therefore, for the year 2013, the Petitioner did not establish that it had sufficient net 
current assets to pay the required wage. 
As evidence of its ability to pay the required wage, the Petitioner submitted a Time Certificate of 
Deposit (TCD) account statement dated February 20, 2015,10 and bank statements for December 
2014, and January 2015. Bank statements and TCDs are not among the three types of evidence, 
enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate the Petitioner's ability to pay a required 
wage. While this regulation allows "additional" material in appropriate cases, the Petitioner in this 
case has not provided the necessary documentation required by 8 C.F.R. § 204.5(g)(2). Further, 
8 In a nonprofit organization, current assets minus current liabilities is also known as net working capital or net working 
deficit. 
9 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items having (in 
most cases) a life ·of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current 
liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and 
accrued expenses (such as taxes and salaries). !d. at 118. 
10 The Petitioner stated in response to the RFE that the purpose of the TCD is to pay for planned and other expenses, 
including the wage offered to the Beneficiary. The TCD statement shows that the Petitioner has a TCD in the amount of 
$141,863.81 with a maturity date of October 27,2015. It appears based on an automatic renewal notice in the record that 
the TCD automatically renews in one-year increments unless redeemed within a seven day grace period after maturity. 
The TCD statement does not indicate if there is an early-withdrawal penalty for withdrawing funds prior to maturity and, 
if so, the amount of the penalty. 
6 
(b)(6)
Matter of A-0-A-/S-B-C-S-
bank statements show the amount in an account on a given date, and cannot show the sustainable 
ability to pay a proffered wage. 
The Petitioner submitted an unaudited financial report for 2014. The regulation at 8 C.F.R. 
§ 204.5(g)(2) makes clear that where the Petitioner relies on financial statements to demonstrate its 
ability to pay the required wage, those financial statements must be audited. As there is no 
accountant's report accompanying these statements, we cannot conclude that they are audited 
statements. Unaudited financial statements are the representations of management. The unsupported 
representations of management are not reliable evidence and are insufficient to demonstrate the 
ability to pay the required wage. 
The Petitioner cites several non-precedent AAO decisions on appeal. While 8 C.F.R. § 103.3(c) 
provides that precedent decisions of USC IS are binding on all its employees in the administration of the 
Act, unpublished decisions are not similarly binding. Precedent decisions must be designated and 
published in bound volumes or as interim decisions. 8 C.F.R. § 103.9(a). 
USCIS may consider the overall magnitude of the Petitioner's business activities in its determination 
of the Petitioner's ability to pay the required wage. See Matter of Sonegawa, 12 I&N Dec. 612 
(Reg'l Comm'r 1967). The petitioning entity in Sonegawa had been in business forover 11 years 
and routinely earned a gross annual income of about $100,000. During the year in which the petition 
was filed in that case, the petitioner changed business locations and paid rent on both the old and 
new locations for five months. There were large moving costs and also a period of time when the 
petitioner was unable to do regular business. The Regional Commissioner determ.ined that the 
petitioner's prospects for a resumption of successful business operations were well established. The 
petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her 
clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had 
been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in 
California. The Regional Commissioner's determination in Sonegawa was based in part on the 
petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, 
USCIS may, at its discretion, consider evidence relevant to the Petitioner's financial ability that falls 
outside of its net income and net current assets. US CIS may consider such factors as the number of 
years the Petitioner has been doing business, the established historical growth of the Petitioner's 
business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the Petitioner's reputation within its industry, whether the Beneficiary is 
replacing a former employee or an outsourced service, or any other evidence that USCIS deems 
relevant to the Petitioner's ability to pay the required wage. 
In the instant case, the Petitioner states on appeal that it was established in . that it has been 
educating children in the Catholic faith for 65 years; that it has 51 employees; and that the 
7 
(b)(6)
,----------------------------------------
Matter of A-0-A-/S-B-C-S-
Beneficiary is being offered permanent, full-time employment.11 However, the Petitioner has not 
submitted its audited financial statements or annual report for any relevant year. Without this 
regulatory required evidence, the petition cannot be approved. 
The evidence submitted does not establish that the Petitioner had the continuing ability to pay the 
required wage beginning on the priority date. The Director properly denied the petition for this 
reason. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, it is the Petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-0-A-IS-B-C-S-, ID# 14931 (AAO Jan. 8, 2016) 
11 We note that the ETA Form 9089 was filed by 
The Form l-140 was filed by 
number 
8 
federal employer identification number 
, federal employer identification