dismissed EB-3 Case: Nursing

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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
Services
FILE:
LIN 05 07351177
Office: NEBRASKA SERVICE CENTER Date: ocr 0 22006
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant petition for Alien Worker as an Other Worker pursuant to section 203(b)(3)(iii) of
the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3)(iii)
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.
IRo ert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The director denied the employment-based preference visa petition, and the matter is now before
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a nursing facility. It seeks to employ the beneficiary permanently in the United States as a
nursing assistant. As required by statute, a Form ETA 750, Application for Alien Employment Certification
approved by the Department of Labor, accompanied the petition. The director determined that the petitioner had
not established it was the employer of the beneficiary and thus eligible to file the petition or 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.
On appeal, counsel states that Citizenship and Immigration Services (CIS) applied the law incorrectly. Counsel
submits a brief and additional evidence.
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(iii) 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 unskilled labor, not of a temporary or seasonal nature, for which
qualified workers are not available in the United States.
>
Theregulation at 8 C.F.R. § 204.5(1)(3) also provides
(ii) Other documentation--
(D) Other Worker. If the petitioner is for an unskilled (other) worker, it must be
accompanied by evidence that the alien meets any educational, training and
experience, and other requirements of the labor certification.
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part:
Ability ofprospective employer to pay wage. Any petition filed by or for an employment-
. based immigrant which requires an offer of employment must be accompanied by evidence
that the prospective United States employer has the ability to pay the proffered wage. The
petitioner must demonstrate this ability at the time the priority date is established and
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability
shall be in the forin 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,
the day the Form ETA 750 was accepted for processing by any office within the employment system of the
Department of Labor. See 8 C.F.R. § 204.5(d). Here, the Form ETA 750 was accepted for processing on April
19, 2001. The proffered wage as stated on the Form ETA 750 is $8.71 per hour, which amounts to $18,116.80
annually. The beneficiary indicated on the Form ETA 750 that she had worked for the petitioner since October
1996.
Page 3
On the petition, the petitioner indicated it was established in 1950, has 65 employees , a gross annual income of
$3.~ million and a net annual income of $1,000. With the petition, the petitioner submitted an Internet printout
form the Colorado Secretary of State Business Center thatidentified Pinon Management as a corporation in good
standing that was formed in 1980. Another document submitted by the petitioner to the record indicated that the
Pinon Management changed to its present name in July .6, 1999, having previously been named Financial and
Accounting Services Corporation. The petitioner also submitted a web-based brochure for Pinon Management
that stated it offered management and consulting services to owners and developers of senior housing and health
care facilities since 1979 . This brochure identifies 15 facilities in Colorado and one facility in New Mexico that
the brochure identifies as "Pinon Facilities," and also advertises open staffing positions at various facilities.
Brookshire House is one of the facilities identified in Denver.
The petitioner also submitted a copy of a provisional business license for Brookshire House for the month of
August 2000 that identified it as a long term care facility , as well as a document entitled "Colorado Nursing Home
Census Bed Report for 9/30/2004" that stated Brookshire House had 58 licensed beds, with 43 Medicaid, one
Medicare patient and 11 Medicaid HMO patients . Finally the petitioner submitted W-2 forms for the beneficiary
for tax years 1999 to 2002 . The W-2 forms all identified the beneficiary 's address as Denver, Colorado, arid her
wages and employers as follows:
In 1999 , the beneficiary was paid $20 ,826.03 by , Scottsdale, Arizona;
In 2000, the beneficiary was paid $6,217 from Denver , Colorado, and also
was paid $18 ,160.03 by Healthcare Personnel Associate , Atlanta, Georgia;
In 2001, the beneficiary was paid $25,582.44 by Healthcare Personnel Associate, Atlanta , Georgia;
and
In 2002, the beneficiary was paid $10,881.80 by Atlanta, Georgia.
Because the evidence submitted was insufficient to demonstrate the petitioner 's continuing ability to pay the
proffered wage beginning on the priority date, on May 13, 2005, the director requested additional evidence
pertinent to that ability . The director identified the petitioner as Brookshire House and noted that the W-2 form
issued in 2000 by Brookshire House did not establish that the petitioner had paid the beneficiary a salary equal to
or greater than the proffered wage . The director also stated that the other W-2 forms submitted by the petitioner
were not material to the proceedings as the petitioner had not issued them. The director then specifically requested
that -the petitioner provide copies of its 200 I , .2002, 2003, and 2004 federal income tax returns, or audited
financial statements or annual reports for the same years. The director noted that the documentation must show
that the petitioner 's taxable income or net current assets was equal to or greater than the proffered wage.
The :director noted that some petitioners submit copies of documentation such as bank statements, profit and loss
statements , unaudited financial statements , and/or balance sheets. The director stated that the additional
documentation is usually not persuasive as the documents are not legally binding and are often incomplete ,
inaccurate, and error-prone. The director also noted that with regard to the petitioner 's federal income tax return,
)
A 98532536
Page 4
CIS does not usually consider depreciation, loans, and the personal assets of shareholders, in the case of
incorporated petitioners, in its evaluation of the petitioner's tax returns and its ability to pay the proffered wage.
In response, counsel submitted the 2003 and 2004 federal tax return, Form 1065, U.S. Return for Partnership
Income, for , Lakewood, Colorado. Counsel submitted a letter from_
Accounting Manager, Pinon Management, dated August 3, 2005. In her letter, Mt stated that
. came into existence on May 1, 2002. Ms. _tated that there were no full year
federal tax returns available for tax ears 2001 and 2003 for Ms._stated that_
also known as . is one of three homes under the
. umbrella. Ms stated that prior to May 1, 2002, was owned by
vestors, and ~is a management company and provides management
services t . Ms_1 further stated that does not file separate tax returns,
but does have a separate Employer Information Number (EIN), namely, 01-0590194. Counsel, in his cover letter
stated that althou h I current! had 60 employees, the total number of employees for the three homes
under was in excess of 200 employees.' Counsel in his cover letter noted
that the gross receipts for . in 2004 was $11,024,910 and.its ordinary income
was $259,898.
On August 10, 2005, the director sent the petitioner a second request for further evidence. The director noted that
the record contained discrepancies and asked the petitioner to clarify two issues. First, the director noted that the
petitioner represented itself as d/b/a e. The director then noted that in
his August cover letter, counsel stated that the petitioner was previously known as Investors
d/b/a J J. • The director noted that the petitioner with its initial petition had submitted a corporate
name change, but that the name change was from Financial and •••••••••••••••••
Second, the director first noted that the beneficiary had stated on the ETA Form 750 that she worked for the
petitioner since 1996; however, the documentation submitted by the petitioner indicated that the beneficiary 'had
been employed by at least one other employer, The director also noted that the
2002 W-2 form for the beneficiary's wages identified the petitioner as the employerr' however, the EIN number
for the petitioner on the W-2 form, namely 84-1123466, differed from the EIN number, 01-0590194,4 shown on
Part 1 of the instant petition and provided by counsel in his letter dated August 3',2005.
1 It appears that counsel refers to the umbrella company, and not to the
petitioner, in his estimation of total employees.
2 The record reflects a third employer, namely, Arizona for tax year
1999. However, the priority date for the instant petition is April 14, 2001; therefore the beneficiary's wages
earned in tax year 2000 are not dispositive, and thus the beneficiary's employment by the Indiana
Partnership will not be discussed further in these proceedings.
3 This W-2 form identified as being the employer of the beneficiary. The
director appears to have referred to the beneficiary's 2000 W-2 form from not the
beneficiary's 2002 W-2 form from Healthcare Personnel Associate. The 2000 W-2 form prepared by •••••
_ shows an EIN of 84-1123466. .
4 The EIN or IRS Tax number noted on the instant 1-140 is 01-6590194, not 01-0590194, as stated by counsel
Page 5
The director stated that the petitioner had to resolve these discrepancies to demonstrate its ability to pay the
proffered wage as of the priority date to the present. The director then requested that the petitioner submit
documentation to establish the relationship between and and
suggested that acceptable evidence would be a copy of a management services agreement or contract. The director
also requested a revised, signed original Form ETA 750, Part B, Statement of Qualifications of Alien, in which
the beneficiary stated her actual employment history. The director then stated the petitioner should submit
documentation issued by a civil authority that assigned a federal employer identification
number and an explanation as to the noted discrepancy; copies of documentation issued by civil authorities to
sho~ that owned the petitioner prior to May 1, 2002, and if available, copies of the
federal income tax returns filed by in 2001 and 2002. The dir~ctor also requested
documentation filed with civil authorities that showed the petitioner was presently owned by ••••••
and a copy of 2002 federal income tax return for
2002, and finally, evidence that the federal income tax returns filed by' I in 2002,
2003, and 2004 reflected the petitioner's business activities.
In response, counsel submitted further documentation. With regard to the relationship between _
and _ counsel submitted a second letter from rovided
a management services contract between as well as a copy of the
2002 federal income tax filed by again noted that the return is a
combined one for the three entities, and that does not file a separate tax return. Ms. • • • •
also.noted that the 2002 federal income tax return did not encompass the entire year's activities as
was not established until May 1, 2002. The 2002 federal income tax return submitted to the record
indicates that _ has ordinary business income of $259,416.
Ms. stated the federal employer identification number previously supplied to counsel on August 3 is a
valid number for . Ms. _ also stated that.1•••••• It did not have available
"documentation issued by a civil authority" assigning this number. Ms. .- also stated that •••
••••• did not have access to . , federal income tax returns and that counsel
would need to contact Omega Healthcare Investors directly for that information.
The management contract submitted to the record is dated May 1, 2002 and is between •••••••••
and· I is identified as "owner" while_
is identified as "manager". The contract outlined the duties of the management company and of
the facility manager to be provided by the management company. The contract noted that the manager should
furnish administrative consulting services, such as personnel management and management systems and reviews,
among other issues. The contract also identified ? ' , .as the "landlord".
With regard to the beneficiary's qualifications, counsel submitted a copy of the original filed and certified ETA
750 Part B and also copies of the beneficiary's 1995 W-2 Form from Ontario Care Center, a previous employer
noted on the Form ETA 750. This form indicated the beneficiary earned $10,622.14 from the previous employer
and Ms. Bogucki. This appears to be a typographical error.
Page 6
during 1995. The petitioner also submitted a letter fro
Center, dated April 18, 2001. This letter states that the beneficiary has worked as a certified nursing assistant at
ince October 1996. The petitioner also submitted a copy of the beneficiary's certified nurse
aide license issued on February 1, 2000 and with an expiration date of January 31, 2002.
With regard to the discrepancies in EIN numbers, counsel states that the Form ETA 750 was filed in 2001 and that
since that date the beneficiary's W-2 forms have not indicated an EIN of 84-1123466. The petitioner resubmitted
the beneficiary's W-2 forms from tax years 2000, 2001, and 2002, and submits the beneficiary's W-2 for 2003.
This form indicates that the beneficiary earned $31,047.39 in tax year 2003 and was employed by
Finally with regard to the historical ownership of the petitioner, counsel resubmits the letter written by Ms.
n August 3, 2005, and states that . was sold to land
immediately hired an outside management company,
_ to run the business. Counsel further stated that Conifer Care Communities came into existence on May
1, 2002 and since then has owned further states that
hired P' 7 5 ~ to manage E Counsel also submitted a newspaper article written
by _Denver Rocky Mountain News staff writer, entitled "State Slow to Shut Nursing Homes.". The
article is dated November 19, 2000. This article discusses the action and lack of action taken by the state of
. Facilities Division in monitoring problem nursing homes. The article states that since January 1,5
fifteen of the 224 licensed nursing homes in Colorado had been placed on intensified state monitoring, and that
when five homes were sold in March, the new owners were given only conditional licenses "because of less-than­
top-notch inspections." The article stated that bankrupt old the homes to a
branch of . The article continued that the conditional licenses given to the nursing
homes demanded immediate hiring of an outside management company, improved care and significant repairs.
The writer then identified the five nursing homes in question as , ___________ and _
In the cover letter to the response to the director's second request for further evidence, counsel presented a table
that described the owners and managers of Brookshire House from the year 2000 to the present time. 6 This table
identifies the owner and managing company of in tax year 2000 as (EIN
84-1123466). From an unidentified period in 2000 to an unidentified date in 2002, the company owner of
,::::::::::::~.~~ is identified as Omega Healthcare Investors (EIN 58-2526318) with
• as the managing company. From May 1, 2002 to the present time, counsel identifies the petitioner's
owner as Conifer Care Communities (EIN 03-0373296) with Pinon Management, Inc, as the managing company.
Counsel also lists (EIN 01-0590194) under the ownership and management columns for
On February 14,2006, the director denied the petition. The director determined tha , was
not the petitioner, and the record did not establish that Pinon had either owned or presently owns the petitioner.
5 Presumably, January 2000.
6 The present time as of the date of counsel's letter was November 1, 2005.
Page 7
The director stated that was a management firm hired by on May 1, 2002.
The director stated that the management contract entered into between I corroborates role
of _ as a management company. The director then stated that , identified in evidence as the
facility administrator, is actually an employee of , and as such is not an employee of
••••••• The director then concluded that s . as an employee of Pinon, is not authorized to
sign the 1-140 petition, and also was not authorized to sign the Form ETA 750 on behalf of •••••••
The director also stated that the petitioner by not submitting the evidence requested in the director's request of
further evidence had precluded the examination of a material line of enquiry.
With regard to the petitioner's ability to pay the proffered wage, the director stated that although the petitioner
had submitted tax returns for' the petitioner also had not submitted any evidence to establish that
•••••J owned . Thus, the director determined that the tax returns found in the record
would not be considered as evidence.
Furthermore, the director noted that in response to his second request for further evidence, counsel had stated that
prior to May 1, 2002, Brookshire House was owned by The director noted that the
petitioner had not submitted any evidence or documentation filed with civil authorities that showed _
_ Investors previously owned , and that the petitioner also failed to submit co~
the federal income tax return filed by are Investors in tax year 2001 and 2002. The director stated
that based on this lack of documentation, the W-2 forms issued by to the
beneficiary would not be considered as evidence of the petitioner's ability to pay the proffered wage. The director
then noted that the petitioner had not submitted evidentiary documentation that was presently
owned by Based on this lack of evidentiary documentation, the director
determined that the federal income tax returns filed by could not be considered evidence of the
petitioner's ability to pay the proffered wage.
On appeal, counsel states that CIS errs in concluding that _ the administrator for is not.
authorized to sign for . Counsel also states that CIS errs in concluding that the employer has not proved
its ability to pay the proffered wage, and errs in its consideration of the ownership and •••••••••••
With regard to Mr. _Iwork responsibilities, counsel submits a letter written by
In her letter, Ms. _ describes t~functions and essential duties and
responsibilities of I administrator, Ms. _ also states that Mr. I as the
licensed nursing home administrator of Brookshire House and as an employee of Pinon Management. Inc. has the
authority to sign all contracts on behalf of and ~ong the duties
enumerated in the document are marketing/census development, quality, leadership skills, budget/finance,
personnel, and other duties and responsibility. Under personnel, the document states recruits, selects and orients
department heads who are competent, efficient and share the organization's philosophy, and ensures that an
adequate number of appropriately trained professional and line staff are on duty at all times to meet the needs of
the residents.
Page 8
With regard to the petitioner's ability to pay the proffered wage, counsel provides Conifer Care's 2002 Federal :
income tax return. This tax return indicates that Conifer Care has ordinary income of -$186,553 in tax year 2002.
Counsel also resubmits the beneficiary's W-2 Forms from tax year 2005 as well as her 2005 Form 1040, U.S.
Individual Income Tax Return. The W-2 Form indicates that Conifer Care paid the beneficiary $29,920.76 and her
income tax return indicates that she earned $29,921 in the same year.
With regard to the ownership and management of Brookshire House, counsel states that has been
owned and managed by different entities, and resubmits the table that shows the owners and managers of
••••••• from 2000 to the present. In addition, counsel resubmits Ms._s letter dated August 3,
2005, and also submits six new documents. These new documents are as follows:
Articles of Organization for received by the state of Colorado
Secretary ofState on February 4,2002. This document states the name of the business and further
states that it is organized to purchase, lease and operate long-term care facilities;
First two pages of an annual report filed with the state of Colorado Secretary of State on February
8,2005 by
One page of a document from the Colorado Secretary of State Business Center that provides an ill
number and document number of ••••••••••••
A document entitled Application for Authority, dated by the state of Colorado Secretary of State on
March 13, 2000. This document state that . c. located in Atlanta,
Georgia applied for authority to transact business in Colorado and that it elected to use the
corporate name of .in Colorado.
A declaration of •••••• , Secretary of State, state of Delaware dated March 8, 2000. Mr.
_ certifies that . is incorporated in the state of Delaware.
A document entitled "Application for Withdrawal for a Foreign Profit Corporation" delivered to the
state of Colorado Secretary of State on March 28, 2003 by
located in Atlanta, Georgia.
Upon review of the record, the initial 1-140 petition identifies the petitioner as , doing business
as _ However, the managemet:Itcontract submitted by' counsel to the record clearly identifies
~Inc. as the manager of .7 As such, . is not the
petitioner. Therefore the discussion of whether Mr. _ can sign the 1-140 or the ETA form 750 is moot."
7 The same document identifies as the owner of••••••••
8 The 1-140 petition clearly indicates that the petitioner's signature is required on Part 8, Signatures. However, it
is noted that if the owner gives someone permission to manage its business, then such an individual could sign for
them.
·.
Page 9
The more important issue to be addressed is the identification of the petitioner as of the April 19, 2001 priority
date and to the present. Counsel presents a table of owners and managers on appeal, but does not provide any
evidence to establish that the businesses identified in his table were the owners of the petitioner as of April 17,
2001 and to the present. The director correctly requested evidence that was a separate business
entity in early 2001, and/or that . bought at some point in
2001. Furthermore, the director requested evidence that Omega at some point sold
........ to the next claimed owner, Counsel on appeal submits
documentation such as request to do business in the state of Colorado and its
subsequent application to withdraw from business transactions in the state of Colorado. Counsel further submits
an entry from the state of Colorado secretary of state business center that identified
but provides no further information on this entity. Finally counsel submits the articles of incorporation for .11•••
••••••.•.•. Counsel's submissions, however, are not on point. The director was not asking for
documentation as to the existence of s as an incorporated business, or the ability of
••••••••••••• to do business in Colorado. Rather, the director asked for evidence to establish
the petitioner's chain of ownership from the 2001 priority date to the present. In other words, the director
requested evidence as to the sale, or merger, or buyout of ~•••••••••••••••••••
as counsel claimed happened in 2001, and then the next sale of Brookshire House to the current claimed
petitioner, . in 2002.
If a petitioner files an ETA 750 using the name of one business, and then files an 1-140 petition using the name
of another business, the record requires clarification as to whether a successor in interest issue exists. This status
requires documentary evidence that the petitioner has assumed all of the rights, duties, and obligations of 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 ofDial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1986).
For this reason, the director requested the federal income tax returns for Omega Healthcare Investors, Inc., for
2001 and 2002, if available. .
Counsel and Ms. _ both asserted in response to the director's request for further evidence, that _
••••••• owned prior. to May 1, 2002. However, the assertions of counsel do not
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofRamirez-Sanchez, 17 I&N
Dec. 503, 506 (BIA 1980). On appeal, counsel continues to assert this prior ownership, however he provides no
further evidentiarydocumentation,such as contract of a saleor other transferof ownership documentation,that would
establish the ownership of by Investors asof the April 19, 2001 priority date, or the
actual ownership by another business entity of BrookshireHouse asof the April 19, 2001 priority date.
Without establishing the identity of any prior owner as of the 2001 priority date and its present ownership of
cannot establish itself as the petitioner, and cannot resolve any successor in
interest issue. Furthermore, it cannot establish its ability to pay the proffered wage, and also the ability of any
previous owner as of the April 2001 priority date to pay the proffered wage.
.. .,,'
..
Page 10
Thus, the director correctly determined that the federal income tax returns for
would not be considered in the proceedings with regard to the petitioner's ability to pay the proffered wage. Such
an issue cannot be determined prior to the identification of the actual petitioner or any previous petitioners.
Despite the W-2 forms submitted to the record that show wages more than the proffered wage paid to the
beneficiary, the record of proceedings does not show the identity of the petitioner as the same entity that filed the
labor certification or as a successor in interest. Thus, the W-2 documents cannot establish the petitioner's ability
to pay the proffered wage as of the priority date and to the present. The director's decision will be affirmed, and
the petition will be denied.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361.
The petitioner has not met that burden.
ORDER: The appeal is dismissed.