dismissed EB-3 Case: Nursing

PUBLIC COPY 
identifying data deleted to 
prevent clearly unw ananted 
invasion of personal privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: VERMONT SERVICE CENTER 
 Date: AUG 0 6 2007 
EAC-05-06 1-5 1753 
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. 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, ~higf 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Director (Director), Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment based immigrant pursuant to section 203(b)(3) 
of the Immigration and Nationality Act, (the Act), 8 U.S.C. 5 1153(b)(3), as a professional or shlled worker. The 
petitioner is a nursing registry. It seeks to employ the beneficiary permanently in the United States as a registered 
nurse. The petitioner asserts that the beneficiary qualifies for a blanket labor certification pursuant to 20 C.F.R. 5 
656.10, Schedule A, Group I. The petitioner submitted the Application for Alien Employment Certification 
(Form ETA 750) with the Immigrant Petition for Alien Worker (Form 1-140). 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. 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 February 8, 2006 denial, the only 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. 5 1 153(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. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation 8 C.F.R. 5 204.5(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. 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 priority 
date. The priority date of any petition filed for classification under section 203(b) of the Act "shall be the date the 
completed, signed petition (including all initial evidence and the correct fee) is properly filed with [CIS]." 8 
C.F.R. 8 204.5(d). Here, the priority date is December 27, 2004. The proffered wage as stated on the Form 
Page 3 
ETA 750 is $22.00 per hour ($45,760 per year'). The Form 1-140 indicates that the beneficiary is not in the 
United States and on the Form ETA 750B the beneficiary did not claim to have worked for the petitioner. 
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.2 Relevant evidence 
in the record includes the petitioner's corporate federal tax return for 2004, the petitioner's financial 
statements for the year of 2004 and the nine months of 2005 with accountant reports, Form NYS-45 Quarterly 
Combined Withholding, Wage Reporting and Unemployment Insurance Return for all four quarters of 2004, 
copies of approval notices on the petitions filed by the petitioner, a list of names of registered nurses who 
have arrived between late 2004 and during the year 2005 in the United States, and a copy of the actual 
newspaper clipping regarding the petitioner's acquiring a staffing agency in Nutley, New Jersey. The record 
does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
On the petition, the petitioner claimed to have been established in 1988, to have a gross annual income of 
$6,500,000, to have a net annual income of $1,100,000, and to currently employ 150 workers. 8 C.F.R. $ 
204.5(g)(2) allows the director to accept a statement from a financial officer of the organization which 
establishes the prospective employer's ability to pay the proffered wage in a case where the prospective 
United States employer employs 100 or more workers. However, the submitted Forms NYS-45 for 2004 
show that the petitioner had 89 employees in the first quarter, 86 in the second quarter, 81 in the third quarter 
and 86 in the fourth quarter of 2004. The petitioner failed to establish that it employs 100 or more workers. 
Therefore, CIS will not accept any statement from a financial officer of the petitioner as evidence to establish 
the petitioner's ability to pay the proffered wage. 
In addition, given the record as a whole and the petitioner's history of filing petitions, we find that CIS need 
not exercise its discretion to accept the letter from a financial officer of the petitioner. The director indicated 
that the petitioner had over 25 pending petitions for nurses with the Vermont Service Center at the time of 
filing the instant petition. Consequently, CIS must also take into account the petitioner's ability to pay the 
petitioner's wages in the context of its overall recruitment efforts. Presumably, the petitioner has filed and 
obtained approval of the labor certifications on the representation that it requires all of these workers and 
intends to employ them upon approval of the petitions. Therefore, it is incumbent upon the petitioner to 
demonstrate that it has the ability to pay the wages of all of the individuals it is seeking to employ. If we 
examine only the salary requirements relating to the 1-140 petitions, the petitioner would be need to establish 
that it has the ability to pay combined salaries of $1,144,000. Given that the number of immigrant petitions 
reflects an increase of the petitioner's workforce, we cannot rely on a letter from a financial officer 
referencing the ability to pay a single unnamed beneficiary. 
As we decline to rely on a financial officer's letter, we will examine the other financial documentation 
submitted. 
1 
 Based on working 40 hours per week as set forth on the Form ETA 750A. It is noted that the petition shows 
the proffered wage of $865 per week which equals to an annual salary of $44,980. The AAO considers 
$45,760 as the proffered annual salary in accordance with the Form ETA 750 in the instant case. 
2 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 
 103.2(a)(l) and 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). 
Page 4 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawhl permanent residence. The 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. § 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. 
612 (Reg. Cornrn. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner employed and paid the beneficiary during that period. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
the evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, the beneficiary was abroad and did not claim to have worked for the petitioner. Thus, the 
petitioner failed to establish its ability to pay the proffered wage through wages paid to the beneficiary from 
2004 onwards. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses. Reliance on federal 
income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcrap Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner's reliance on its gross income and gross profit on appeal is misplaced. Showing that the 
petitioner's total income exceeded the proffered wage is insufficient. Similarly, showing that the petitioner 
paid wages in excess of the proffered wage is insufficient. 
In K. C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, 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. Reliance on the petitioner's 
depreciation in determining its ability to pay the proffered wage is misplaced. On appeal counsel asserts that 
the petitioner had "recruitment expenses" of $502,719 in 2004 as one of the methods to establish the 
petitioner's ability to pay. Similarly counsel's reliance on the petitioner's recruitment expenses in 
determining its ability to pay the proffered wage is also misplaced. The court in K.C.P. Food Co., Inc. v. 
Sava specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income figures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
Page 5 
(Emphasis in original.) Chi-Feng at 537. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. 
According to the tax return in the record, the petitioner's fiscal year is based on a calendar year. The record 
contains a copy of the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation for 2004. The 
petitioner's tax return for 2004 demonstrate the following financial information concerning the petitioner's 
ability to pay the proffered wage of $45,760 per year fi-om the priority date: 
In 2004, the Form 1 120s stated a net income3 of $198,263. 
As an alternative method, CIS will also review the petitioner's assets. 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, become funds available to pay the 
proffered wage. Further, the petitioner's total assets must be balanced by the petitioner's liabilities. 
Otherwise, they cannot properly be considered in the determination of the petitioner's ability to pay the 
proffered wage. Rather, CIS will consider net current assets as an alternative method of demonstrating the 
ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net current assets and 
the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. In the instant case, the petitioner 
did not report its current assets or current liabilities on Schedule L of the Form 1120s fi-o 2004, and thus the 
petitioner's net current assets during 2004 were $0. 
Therefore, for the year 2004 the petitioner did not have sufficient net current assets to pay the proffered wage, 
while the petitioner had sufficient net income to pay the proffered wage to the instant beneficiary, and thus 
3 
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. The instructions on 
the Form 1120s U.S. Income Tax Return for an S Corporation state on page one, "Caution: Include only trade 
or business income and expenses on lines 1 a through 2 1 ." 
Where an S corporation has income from sources other than from a trade or business, net income is found on 
Schedule K. The Schedule K form related to the Form 1120s states that an S corporation's total income from 
its various sources are to be shown not on page one of the Form 1120S, but on lines 1 through 6 of the 
Schedule IS, Shareholders' Shares of Income, Credits, Deductions, etc. For example, an S corporation's 
rental real estate income is carried over from the Form 8825 to line 2 of Schedule K. Similarly, an 
S corporation's income from sales of business property is carried over from the Form 4979 to line 5 of 
Schedule K. See Internal Revenue Service, Instructions for Form 1120s (2003), available at 
http://www.irs.gov/pub/irs-prior/i1120s--2003.pdf; Instructions for Form 1120s (2002), available at 
http://www.irs.gov/pub/irs-priorli 1 120s--2002 .pdf. 
4 
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). Id. at 1 18. 
Page 6 
has established its ability to pay the beneficiary the proffered wage in the year of the priority date through the 
examination of its net income. 
However, as previously discussed, the record contains CIS approvals of Form 1-140 immigrant petitions filed 
by the petitioner. Among them there are 36 approved petitions with a priority date in 2004 for the 
beneficiaries who were abroad. Therefore, the petitioner must show that it had sufficient income or net current 
assets to pay at least 37 proffered wages in 2004. The petitioner's tax return for 2004 shows that the petitioner 
had net income of $198,263. With ths amount, the petitioner could pay only four beneficiaries the proffered 
wages at the same level as the instant beneficiary. Therefore, the petitioner failed to establish its ability to pay all 
the proffered wages in 2004, and the instant petition is not approvable. 
The record contains the petitioner's financial statements for 2004 and the nine months of 2005. 
 The 
regulation at 8 C.F.R. 5 204.5(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 states that: "A review consists principally of inquiries of company 
personnel and analytical procedures applied to financial data. It is substantially less in scope than an audit in 
accordance with generally accepted auditing standards, the objective of which is the expression of an opinion 
regarding the financial statements taken as a whole, accordingly, I do not express such an opinion." The 
accountant's report 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.l., 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. 
On appeal counsel asserts that the petitioner has "accounts receivable" of more than $3,107,758 and "cash in 
the bank" of more than $826,905, totaling $3,934,663 and with this amount, the petitioner has the ability to 
pay all, and even more than the 25 new nurses it is currently petitioning. CIS will consider net current assets 
as an alternative method of demonstrating the ability to pay the proffered wage and accounts receivable and 
cash in the bank are part of the petitioner's current assets. However, the petitioner's current assets must be 
balanced by the petitioner's current liabilities. Otherwise, they cannot properly be considered in the 
determination of the petitioner's ability to pay the proffered wage. The amount counsel relies on in 
determining the petitioner's ability to pay the proffered wage is from the unaudited financial statements. As 
discussed above, counsel's reliance on unaudited financial statements is misplaced. In addition, the amounts 
of accounts receivable and cash in the financial statements are inconsistent with the petitioner's tax return. 
Moreover, they are not balanced by the petitioner's current liabilities, and the record does not contain any 
regulatory-prescribed evidence, such as annual report, tax returns, or audited financial statements, to provide 
the petitioner's current assets and current liabilities. Therefore, the AAO cannot determine the petitioner's net 
current assets and further cannot determine whether the petitioner had sufficient net current assets to pay all 
pending proffered wages in 2004. 
Counsel also urges the consideration of the beneficiary's proposed employment as an indication that the 
petitioner's income will increase. However, 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). 
In addition, no detail or documentation has been provided to explain how the beneficiary's employment as a 
registered nurse will signif cantly increase profits for the petitioner.5 Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). This hypothesis cannot be concluded to outweigh the evidence presented 
in the corporate tax return. Counsel does not explain how the beneficiary's future employment and the future 
profits increase from the beneficiary's future employment could establish the petitioner's ability to pay all 
proffered wages in 2004, the year of filing. Against the projection of future earnings, Matter of Great Wall, 16 
I&N Dec. 142, 144- 145 (Acting Reg. Cornrn. 1977) states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could 
not pay the offered wage at the time the petition was filed, should subsequently become eligible 
to have the petition approved under a new set of facts hinged upon probability and projections, 
even beyond the information presented on appeal. 
Therefore, counsel's assertion on appeal cannot overcome the director's decision and the evidence submitted 
with appeal is not sufficient to establish the petitioner's continuing ability to pay all proffered wages from the 
priority date to the present. The AAO concurs with the director's ground of denial. 
Beyond the director's decision and counsel's assertions on appeal, the AAO has identified additional grounds 
of ineligibility and will discuss these issues. An application or petition that fails to comply with the technical 
requirements of the law may be denied by the AAO even if the Service Center does not identify all of the 
grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 
1025, 1043 (E.D. Cal. 2001), afyd. 345 F.3d 683 (9th Cir. 2003); see also 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 first issue beyond the director's decision is whether or not the petitioner has demonstrated that the 
beneficiary is qualified to perform the duties of the proffered position. 
The regulation at 20 C.F.R. 5 656.22(~)(2) provides: 
An employer seelung a Schedule A labor certification as a professional nurse (5 656.10(a)(2) of 
ths part) shall file, as part of its labor certification application, documentation that the alien has 
passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) Examination; or 
that the alien holds a full and unrestncted (permanent) license to practice nursing in the State of 
intended employment. 
With the initial filing the petitioner did not submit any documentary evidence to show that the beneficiary has 
passed the CGFNS examination or holds a h11 and unrestncted license of nurse in the State of New York. 
Therefore, the director issued a request for evidence (RFE) on August 22,2005 requesting a CGFNS certificate, a 
full and unrestncted nursing license from New York state or a letter from the state which confirms that the 
beneficiary has passed the National Council Licensure Examination for Registered Nurse (NCLEX-RN) and is 
eligible to be issued a license to practice nursing in that state. In response to the director's RFE, the petitioner did 
5 
 For example, no evidence was submitted detailing the rate the nurse's services would be charged at and the 
overhead expenses associated with employing the nurses. 
not submit any documentary evidence the director expressly requested in the RFE dated August 22,2005 except a 
request for an extension of time to obtain and submit the CGFNS Certificate because the beneficiary's process of 
obtaining her CGFNS Certificate from CGFNS took longer than expected. However, the record including the 
evidence submitted on appeal does not contain any documentary evidence showing that the beneficiary had 
passed the CGFNS examination or held a full and unrestricted nursing license in the State of New York, or a 
letter fkom the State of New York confirming that the beneficiary had passed the National Council Licensure 
Examination for Registered Nurse (NCLEX-RN) and was eligble to be issued a license to practice nursing in that 
state prior to the priority date. 
The petitioner failed to establish that the beneficiary possessed the requisite CGFNS certificate or New York 
state full and unrestricted nursing license, and thus the petitioner failed to demonstrate that the beneficiary is 
qualified for the proffered position. Therefore, the petition cannot be approved for this additional reason. 
Second, an employer shall apply for a labor certification for a Schedule A occupation by filing an Application 
for Alien Employment Certification (Form ETA-750 at Part A) in duplicate with the appropriate CIS office. The 
Application for Alien Employment Certification shall include: 
1. 
 Evidence of prearranged employment for the alien beneficiary by having an employer complete 
and sign the job offer description portion of the application form. 
2. 
 Evidence that notice of filing the Application for Alien Employment Certification was provided 
to the bargaining representative or the employer's employees as prescribed in 20 C.F.R. tj 
656.20(g)(3). 
The regulation at 20 C.F.R. tj 656.20(g)(l) provides, in pertinent part, 
In applications filed under tj 656.21 (Basic Process), 8 656.21a (Special Handling) and tj 656.22 
(Schedule A), the employer shall document that notice of the filing of the Application for Alien 
Employment Certification was provided: 
(i) To the bargaining representative(s) (if any) of the employer's employees in the occupational 
classification for which certification of the job opportunity is sought in the employer's 
location(s) in the area of intended employment. 
(ii) If there is no such bargaining representative, by posted notice to the employer's employees 
at the facility or location of the employment. The notice shall be posted for at least 10 
consecutive days. The notice shall be clearly visible and unobstructed while posted and shall be 
posted in conspicuous places, where the employer's U.S. workers can readily read the posted 
notice on their way to or from their place of employment. Appropriate locations for posting 
notices of the job opportunity include, but are not limited to, locations in the immediate vicinity 
of the wage and hour notices required by 20 CFR 516.4 or occupational safety and health 
notices required by 20 CFR 1903.2(a). 
With the petition, the petitioner submitted a document entitled "Notice of Job Posting." This notice contained 
the title and duties of the position, along with the requirements, pay rate, working hours, and contact person to 
apply for the registered nurse position and indicated that the notice was posted on November 22, 2004 and 
removed on December 22, 2004. At the bottom of the notice, the petitioner also certified the posting, dated 
Page 9 
December 24, 2004, and signed by 
 Administrative Officer. This certification stated the 
following: 
This is to certify that we posted in a conspicuous place in our facility visible to employees and 
visitors, for a period of no less than ten business days, ths Notice containing job description, rate 
of pay and job information. If applicable, we have likewise submitted a copy of this notice to the 
bargaining representative as per any existing collective bargaining agreement. 
The posting notice did not include the actual location where the beneficiary would perform her duties. 
However, the Forms 1-140 and ETA 750 work indicated that the beneficiary would be employed at Dewitt 
Rehabilitation and Nursing Center, 21 1 East 79th Street, New York, NY 1002 1 instead of the petitioner's 
business location. CIS interprets the "facility or location of the employment" referenced at 20 C.F.R. 5 
656.20(g)(l)(ii) to mean the place of physical employment. Therefore, in the instant case, the place of 
physical employment would be Dewitt Rehabilitation and Nursing Center at 21 1 East 79th Street, New York, 
NY 10021 where the beneficiary would perform services as a professional nurse. The petitioner's 
certification indicted that the notice was posted "in our facility". The record contains a copy of Proposed 
Staffing Agreement between United Home Care and Dewitt Nursing Home by which the petitioner shall 
provide professional nursing services at Dewitt Nursing Home. However, it is not clear whether or not 
Dewitt Nursing Home is the same facility as Dewitt Rehabilitation and Nursing Center, whether or not the 
Dewitt Nursing Home is a facility of the petitioner and whether or not the petitioner actually posted the notice 
at Dewitt Rehabilitation and Nursing Center instead of its business location. In response to the director's RFE 
dated August 22, 2005 requesting a job posting that had been posted in the actual location where the 
beneficiary would be employed, counsel submitted a copy of the same notice and asserted that it was the job 
posting that had been posted in the actual location where the beneficiary would be employed. However, 
counsel did not submit any documentary evidence to support his assertions. 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). Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner failed to demonstrate that it posted the notice in the actual location where the beneficiary would 
be employed prior to the priority date. Any subsequent effort by the petitioner to correct the notice of posting 
would constitute a material change to the petition. If the petitioner was not already eligible when the petition 
was filed, subsequent developments cannot retroactively establish eligibility as of the filing date, and cited 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Com. 1971 .) 
Third, the regulation at 20 C.F.R. 5 656.20(~)(2) provides, in pertinent part, 
The wage offered equals or exceeds the prevailing wage determined pursuant to 5 656.40, and 
the wage the employer will pay to the alien when the alien begins work will equal or exceed the 
prevailing wage which is applicable at the time the alien begns work. 
Although the posting notice included the rate of pay as required, the rate on the posting notice is inconsistent 
with the Form ETA 750 proffered wage and is not the prevailing wage rate. The notice indicated that the 
beneficiary was offered an annual salary of $40,000 working at least 37.5 hours per week while the Form 
ETA 750A stated that the beneficiary would be paid at the rate of $22.00 per hour working 40 hours a week. 
The petitioner did not submit a copy of the prevailing wage determination for the instant case. The AAO 
accessed the DOL designated website for prevailing wage rate and finds that the level 1 wage for registered nurse 
Page 10 
in 2004 in New York, NY PMSA is $23.23 per hour or $48,3 1 8 per year.6 Applylng the DOL then 95% rule, the 
hourly prevailing wage would be $22.07 and the annual salary based on worlung 37.5 hours per week would be 
$43,036.50. Therefore, AAO finds that the petitioner failed to post the notice with the prevailing wage rate 
determined by DOL for the year of the priority date. 
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, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.