dismissed EB-3 Case: Nursing

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 5PF 4) i'c 1% 
5 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. § 1 153(b) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
~obe'rt PI Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: the Director, California Service Center, denied the preference visa petition. The petition is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
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 blanket labor certification pursuant to 20 
C.F.R. 5 656.10(a), commonly referred to as Schedule A. The director determined that the petitioner had not 
established that it had posted the notice of filing of the Application for Alien Employment Certification (ETA 
750) in compliance with 20 C.F.R. 5 656.20(g)(1) and (g)(8) and 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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original September 22, 2004 denial, the single issue in this case is whether or not 
the petitioner has established that it posted the notice of filing of ETA 750 in compliance with 20 C.F.R. 5 
656.(g)(1) and (g)(8). 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. 5 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. This section also 
provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees 
and are members of the professions. 
In this case, the petitioner filed an Immigrant Petition for Alien Worker (Form I- 140) for classification of the 
beneficiary under section 203(b)(3)(A)(i) of the Act as a registered nurse on June 20, 2003. Aliens who will 
be permanently employed as professional nurses are listed on Schedule A as occupations set forth at 
20 C.F.R. 656.10 for which the Director of the United States Employment Service has determined that there 
are not sufficient United States workers who are able, willing, qualified and available, and that the 
employment of aliens in such occupations will not adversely affect the wages and working conditions of 
United States workers similarly employed. Also, according to 20 C.F.R. 5 656.10, aliens who will be 
permanently employed as professional nurses must have (1) passed the Commission on Graduates of Foreign 
Nursing Schools (CGFNS) Examination, or (2) hold a full and unrestricted license to practice professional 
nursing in the state of intended employment. 
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. Pursuant to 
20 C.F.R. tj 656.22, 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 AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 89 1 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The MO considers all pertinent 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
appeal includes copies of the beneficiary's payroll summary for the period December 26, 2003 through October 
15,2004; copies of a 2003 Online Wage Library search showing the prevailing wage for Orange County and San 
Bernardino County, California; a copy of a contract between the petitioner and St. Bernardine Medical Center; 
and a copy of the page of the Board of Alien Labor Certification Appeals (BALCA) Deskbook showing its 
interpretation of 20 C.F.R. 8 656.22. 
Other relevant evidence includes a copy of the contract of employment between the petitioner and the beneficiary; 
copies of the beneficiary's week1 -Lashed em lo ment checks for the period becember 28, 2003 through 
February 8, 2004; a letter fmm Chief Financial Officer, and the Loan and Security 
Agreement between the petitioner and Heritage Bank of Commerce; copies of the petitioner's 2002 and first 
of 2003 Forms DE-6, Quarterly wag$ and Withholding information; a copy of the petitioner's 2002 
payroll summary; a copy of the petitioner's 2002 Form 1120S, U.S. Income Tax Return for an S Corporation, a 
list of client hospitals with contracts with the petitioner; copies of citations, 20 C.F.R. $ 656.22, 656.10, and 
656.20(g)(3); a copy of the beneficiary's current California Registered Nurse License and Visa Screen Certificate; 
a copy of the petitioner's undated job posting and certification; a copy of St. Bernardine Medical Center (Catholic 
Healthcare West's San Bernardino Location) current Internet posting for registered nurse (RN) position 
vacancies; a copy of St. Bemardine Medical Center (Catholic Healthcare West's San Bernardino Location) 
internet postings for registered nurse (RN) position vacancies posted since April 28, 2003; a copy of the 
beneficiary's certificate from the International Commission on Healthcare Professions a division of CGFNS, 
issued November 12, 2003; copies of the beneficiary's diplomas in Advanced Nursing, in Registered Community 
Health Nursing, in ~e~istered Nursing, and in ~e~istered Midwife 
transcripts from Kenya; a copy of a letter, dated June 16, 2003, from 
Officer, Nairobi Hospice, stating; that the Hospice had employed the beneficiary from 1994 to 2002; a covv of a 
. w 
letter, dated June 17,'2003, from 
 The ~airibi Hospital, stating that the Hospital employed the 
beneficiary as a staff nurse from 
 October 1990; and a copy of the beneficiary's resume. The 
record does not contain any other evidence relevant to the petitioner's petition for this beneficiary. 
Under 20 C.F.R. $ 656.20, the regulations require the following: 
In applications filed under 656.21 (Basic Process), 656.21a (Special Handling) and 656.22 
(Schedule A), the employer shall document that notice of the filing of the Application for 
Alien Employment Certification was provided: 
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. 
(i i) 
 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 
I 
 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). 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). 
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). 
On appeal, counsel states the following: 
The USCIS mistakenly stated that we did not comply with the requirements of 20 C.F.R. 6 
656.22. We believe that we are not required to post-ohr job notice at our client hospital where 
assigned to because of the following reasons: 
1) Prior to September 23, 2004, our job posting at our places of business has never 
been questioned. In fact, we have received more than six hundred twenty-five 
(625-t) approvals on our 1-140 petitions on behalf of our registered nurses. . . . 
was hired as an employee of our company, Westways Stafling 
on December 15, 2003. We have been responsible for supervising 
her work. We have been responsible for paying her wages, housing, and other 
customary benefits [See Exhibit 11. Hence we are her employer. This is cited in re 
Smith, 12 I&N Dec 772 (1968, Dist Director), which states, in pertinent part, that 
"where the petitioning agency pays the beneficiary directly and guarantees the alien 
full-time permanent employment for 52 weeks a year with fringe benefits; the 
petitioner in such a case is the actual employer of the beneficiary, and the 
employment offer is not of a seasonal or temporary nature.". . . 
3) Although physically rendered nursing services at St. Bernardine 
Medical Center (SBMC), 2101 North Waterman Avenue, San Bernardino, CA 
92404, our client hospital, she was not an employee of SBMC. We only assigned 
her at SBMC on contractual basis. This is stated in our staffing agreement with 
SBMC. Please refer to the attached copy of our staffing agreement with SBMC 
[See Exhibit 31. 
4) Our business viability depends on our ability to fill our registered nurse positions. 
Therefore, we make sure that all our employees are well aware of our job openings. 
Our corporate office is located at 2050 W. Chapman Ave., Ste. 122, Orange, CA 
92868. All our nursing staff are required to report to work in person or via 
telephone each work day or week so that they can be assigned to the specific client 
hospital. 
5) We have posted this job opportunity in all of our places of business so that any 
qualified applicant for the job opportunity can be directed directly to us (the 
employer) or at our employment interviewer. . . . This is discerned from the 
language of Section 656.21(b)(3), which states, in pertinent part, that the notice 
"shall be posted in conspicuous places, where the employer's U.S. workers can 
readily read the posted notice on the way to or from their place of employment." 
6) Our company does not own the hospital facilities where our nursing staff is 
assigned. We have no right nor do we have any access to their bulletin boards. We 
are in no position to post our job notices at our client hospital's facilities. In fact, 
posting such a notice would be a serious violation of our staffing contract with our 
client hospitals because there is a conflict of interest. We may only post such 
notices at the sole discretion of each client hospital. 
7) Although Section 656.22 states that the job notice must be posted at the "facility or 
location of employment," the Board of Alien Labor Certification Appeals 
(BALCA), which interprets the CFR for the Department of Labor, states "the 
employer must document that it has posted a notice of the job opportunity at its 
place of business." A copy of the pertinent page of the BALCA Deskbook showing 
this interpretation is submitted herein [See Exhibit 41. 
8) The provisions of the BALCA Deskbook are in fact confirmed in the case of In the 
Matter of Bison Turf/Fun Co., Inc.90 INA 280, 1991 WL 120 178 (1 99 1) wherein 
the Board of Alien Labor Certification Appeals confirmed that the job notice must 
be posted at the employer's place of business. 
Based on the foregoing arguments, we have posted the job notice at our business premises for the 
required number of days. The regulations do not require us to post the job notice at our client 
hospital's facilities. However, we are willing to comply with this new requirement of the USCIS in 
our next filings. 
While counsel claims that the petitioner is not obligated to post the job notice at its client hospitals and cites 
several BALCA cases in support of his contention, counsel does not state how BALCA precedent decisions 
are binding in these proceedings. While 8 C.F.R. $ 103.3(c) provides that precedent decisions of CIS are 
binding on all its employees in the administration of the Act, BALCA 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). In addition, the petitioner needs to prove it posted the notice where the beneficiary would work, 
and make it clear where that location will actually be. Because the posting notice was not posted at the actual 
"facility or location of the employment," the petitioner cannot establish that it has complied with the notice 
requirements at 20 C.F.R. $ 656,20(g)(l). If the petitioner merely posted the notice at its administrative 
office(s), the petitioner has not complied with this requirement. The purpose of requiring the employer to 
post notice of the job opportunity is to provide U.S. workers with a meaningful opportunity to compete for the 
job and to assure that the wages and working conditions of United States workers similarly employed will not 
be adversely affected by the employment of aliens in Schedule A occupations2. It is noted that "workers 
similarly employed" in the instant petition will be nurses in hospitals, not personnel in the petitioner's 
administrative offices. It is also reasonable to interpret the Department of Labor guidance as pertaining to 
businesses where the employees work in the same location, and not to a business where the administrative 
offices are at a different location than the site of employment. Without more persuasive evidence, the 
petitioner has not established that it satisfied the regulations with regard to positing ofjob notices. 
Beyond the decision of the director, it is noted that the petitioner has not provided evidence of its continuing 
ability to pay the proffered wage from the priority date. 
2 
 [I] See the Immigration Act of 1990, Pub. L. No. 101-649, 122(b)(l), 1990 Stat. 358 (1990); see also Labor 
Certification Process for the Permanent Employment of Aliens in the United States and Implementation of the 
Immigration Act of 1990, 56 Fed. Reg. 32,244 (July 15, 1991). 
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. 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, 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 CFR 5 204.5(d). The priority date in the instant petition is June 20, 
2003. The proffered wage as stated on the Form ETA 750 is $22.17 per hour or $46,113.60 annually. 
In support of the petition, a letter from the petitioner's Chief Financial Officer states that the petitioner has 
experienced continuous growth, and as of December 3 1, 2003, had generated gross receipts of $29.0 million 
and realized a net income of an estimated $600,000. The letter also states that the petitioner has a $3.5 
million revolving line of credit from the Heritage Bank of Commerce, Heritage Capital Group that can be 
used if the client hospitals fail to pay it in a timely manner. A copy of the line of credit and a copy of the 
petitioner's 2002 Form 1120S, U.S. Income Tax Return for an S Corporation, was submitted in support of the 
Officer's statement. 
The petitioner's 2002 tax return reflected an ordinary income or net income of $584,366 and net current assets of 
-$107,397~. 
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. 5 204.5(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. 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 
3 
 It is noted that the petitioner's 2003 income tax return was not submitted on appeal, even though no 
explanation was given as to why it would not have been available. 
Page 7 
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 June 12, 2003, the beneficiary did not 
include the petitioner as a past or present employer. However, the petitioner did provide a copy of its payroll 
records for the beneficiary indicating that it compensated the beneficiary $38,939.26 as of October 15, 2004. 
Therefore, the petitioner has established that it employed the beneficiary in 2004. 
As an alternative 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, 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. 1 986) (citing Tongatapu Woodcrafr Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F.Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. 111. 1982), aff d., 703 F.2d 57 1 (7~ Cir. 1983). In K.C. P. Food Co., Inc., the court held that 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 
CIS 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 also Elatos Restaurant Corp., 632 F. Supp. at 1 054. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. If the net income the petitioner demonstrates it had available during that period, 
if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the 
proffered wage or more, CIS will 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 ~iabilities.~ 
 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 a corporation's end-of-year 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 petitioner's net current assets in 2002 were -$107,397. The petitioner could not have paid 
the proffered wage of $46,113.60 in 2002 from its net current assets. 
The petitioner's Chief Financial Oficer points to the petitioner's line of credit and its total receipts as 
confirmation that the petitioner has established its ability to pay the proffered wage. However, in calculating the 
ability to pay the proffered salary, CIS will not augment the petitioner's net income or net current assets by 
adding in the corporation's credit limits, bank lines, or lines of credit. A "bank line" or "line of credit" is a 
bank's unenforceable commitment to make loans to a particular borrower up to a specified maximum during a 
4 
 According to Barron 's Dictionary of Accounting Terms 1 17 (3'd 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. 
specified time period. A line of credit is not a contractual or legal obligation on the part of the bank. See 
Barron 's Dictionary of Finance and investment Terms, 45 (1 998). 
Since the line of credit is a "commitment to loan" and not an existent loan, the beneficiary has not established 
that the unused funds from the line of credit are available at the time of filing the petition. As noted above, a 
petitioner must establish eligibility at the,time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Moreover, the petitioner's existent loans will be reflected in the balance sheet provided in the tax 
return or audited financial statement and will be fully considered in the evaluation of the corporation's net 
current assets. Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a 
cash asset. However, if the petitioner wishes to rely on a line of credit as evidence of ability to pay, the 
petitioner must submit documentary evidence, such as a detailed business plan and audited cash flow 
statements, to demonstrate that the line of credit will augment and not weaken its overall financial position. 
Finally, CIS will give less weight to loans and debt as a means of paying salary since the debts will increase 
the firm's liabilities and will not improve its overall financial position. Although lines of credit and debt are 
an integral part of any business operation, CIS must evaluate the overall financial position of a petitioner to 
determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy 
the proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
Furthermore, the petitioner's total receipts will not be considered without also considering the petitioner's 
total liabilities. Showing that the petitioner's gross receipts 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. Suva, 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. The court specifically rejected the argument that 
CIS should have considered income before expenses were paid rather than net income. 
It is noted that the petitioner has filed other Immigrant Petitions for Alien Worker (Form 1-140) for at the same 
wage, using the same or similar priority dates, reflected on a Form ETA 750. In fact, CIS computer records 
show that the petitioner filed 93 Form 1-140 petitions during 2002, 140 such petitions during 2003, and 
another 57 petitions during 2004. Therefore, the petitioner must show that it had sufficient income to pay all the 
wages at the priority date. 
Finally, if the petitioner does not have sufficient net income or net current assets to pay the proffered salary, 
CIS may consider the overall magnitude of the entity's business activities. Even when the petitioner shows 
insufficient net income or net current assets, CIS may consider the totality of the circumstances concerning a 
petitioner's financial performance. See Matter of Sonegawa, 12 I&N Dec. 6 12 (Reg. Comm. 1967). In Matter 
of Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The district director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 6 15. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
Page 9 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that 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 CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In the instant case, the petitioner has provided only one tax 
return, 2002, which does not include the priority date of June 20, 2003. In addition, one tax return is not 
enough evidence to establish that the business has met all of its obligations in the past or to establish its 
historical growth. There is also no evidence of the petitioner's reputation throughout the industry. 
After a review of the record, it is concluded that the petitioner has not established its ability to pay the salary 
offered or the salaries of the additional workers petitioned for as of the priority date of the petition and 
continuing until the beneficiary obtains lawful permanent residence. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal do 
not overcome the decision of the director. 
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. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed