dismissed EB-3 Case: Physical Therapy

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 
203@)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153@)(3) 
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, Chief 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner, a physical therapist clinic, seeks to employ the beneficiary permanently in the United States as 
physical therapist. 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 an Application for Alien Employment 
Certification (ETA-750) with the Immigrant Petition for Alien Worker (1-140). The director determined that 
petitioner had failed to establish that the beneficiary qualifies for an occupation listed in Schedule A, Group I. The 
director also found that the petitioner had failed to demonstrate its continuing financial ability to pay the proffered 
wage and denied the petition accordingly. 
On appeal, counsel submits additional evidence and asserts that the petitioner has established that it has the ability 
to pay the proffered wage and that the beneficiary qualifies as a physical therapist. 
Section 2030(3)(A)(i) of the Act, 8 U.S.C. $ 1153(b)(3)(A)(i), provides for the granting of preference 
classification to qualified immigrants who are capable, at the time of etioning for classification under this 
paragraph, of performing slalled labor (requiring at least two years training or experience), not of a temporary or 
seasonal nature, for which quaIified workers are not available in the United States. 
In this case, the petitioner has filed an 1-140 for classification under section 203(b)(3)(A)(i) of the Act as a 
physical therapist. Aliens who will be employed as physical therapists are listed on Schedule A. Schedule A 
is the list of occupations set forth at 20 C.F.R. $ 656.10 with respect to 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. 
The regulation at 8 C.F.R. $204.5(a)(2) provides that a properly filed Form 1-140, must be "accompanied by any 
required individual labor certification, application for Schedule A designation, or evidence that the alien's 
occupation qualifies as a shortage occupation within the Department of Labor's Labor Market Information Pllot 
Program." 
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 
&The regulatory scheme governing the alien labor certification process contains certain safeguards to assure 
that petitioning employers do not treat alien workers more favorably than U.S. workers. New Department of 
Labor regulations concerning labor certifications went into effect on March 28, 2005. The new regulations 
are referred to by the Department of Labor by the acronym PERM. See 69 Fed. Reg. 77325, 77326 @ec. 27, 
2004). The PERM regulation became effective March 28,2005, and applies to labor certification applications 
for the permanent employment of aliens filed on or after that date. However, the instant petition was filed 
prior to March 28, 2005 and is governed by the prior regulations. The Title 20 citations in this decision are to 
the Department of Labor regulations as in effect prior to the PERM amendments. 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The regulation at 8 C.F.R. 9 204.5(d) provides that ''{Vhe priority date of any petition filed for classification 
under section 203(b) of the Act which is accompanied by an application for Schedule A designation or with 
evidence that the alien's occupation is a shortage occupation with the Department of Labor's Labor Market 
Information Pilot Program shall be the date the completed, signed petition (including all initial evidence and the 
correct fee) is properly filed with [Citizenship and Immigration Services (CIS)]." The petitioner must also 
demonstrate its continuing ability to pay the proffered wage beginning on the priority date, as well as establish 
that the beneficiary has acquired the requisite credentials. In this case, the priority date is December 13,2004. 
The regulations in Title 20 of the Code of Federal Regulations also provide specific guidance relevant to the 
requirements that an employer must follow in seeking certification under Group I of Schedule A. An employer 
must file an application for a Schedule A labor certification with CIS. It must include evjdence of prearranged 
employment for the alien beneficiary signified by the employer's completion of the job offer description on the 
application form and evidence that the employer has provided appropriate notice of filing the Application for 
Alien Employment Certification to the bargaining representative or to the employer's employees as set forth in 20 
C.F.R. 3 656.20(g)(3). 20 C.F.R. 3 656.22(a) and (b). The regulation at 20 C.F.R. 3 656.22(c) also provides in 
pertinent part: 
(1) An employer seeking Schedule A labor certification for an alien to be employed as a 
physical therapist ($656.10(a)(l) of this part) shall file as part of its labor certification 
application a letter or statement signed by an authorized State physical therapy licensing 
official in the State of intended employment, stating that the alien is qualified to take that 
State's written licensing examination for physical therapists. 
As evidence of its ability to pay the proffered wage of $42,200 per year, the petitioner provided a copy of its 
Form 1120, U.S. Corporation Income Tax Return for 2003. The corporate income tax return reflects that the 
petitioner files its taxes using a standard calendar year and reported $1 1,162 in taxable income before the net 
operation loss (NOL) deduction. Schedule L of the return indicates that its current assets were $5,241 and its 
current liabilities were $267, resulting in net current assets of $4,974.2 
As evidence of the beneficiary's qualifying licensure, the petitioner provided a copy of the beneficiary's 
license from the state of Michigan and a copy of a response received from the state of New York Division of 
Besides net taxable income, as an alternative method of reviewing a petitioner's ability to pay a proposed wage, 
CIS will examine a petitioner's net current assets. 
 Net current assets are the difference between the petitioner's 
current assets and current liabilities. It represents a measure of liquidity during a given period and a possible 
resource out of which the proffered wage may be paid. A corporate petitioner's year-end current assets and 
current liabilities are shown on line(s) 1 through 6 and line(s)l6 through 18 of Schedule L of its federal tax return. 
If a corporation's end-of-year net current assets are equal to or greater than the proffered wage, the corporate 
petitioner is expected to be able to pay the proffered wage out of those net current assets. 
Professional Licensing Services telling the beneficiary that his application was incomplete and requesting a 
copy of his immigration visa or immigration employment authorization card. 
, 
The director requested additional evidence on March 30, 2005. He advised the petitioner that it must show 
that the beneficiary has a letter from the from state of intended employment, stating that the alien is qualified to 
take that state's written licensing examination for physical therapists or that the beneficiary has a license to 
practice physical therapy in New York, his indicated state of intended employment. The director also informed 
the petitioner of the requirements set forth in 8 C.F.R. § 204.5(g)(2) relating to the required evidence in order to 
demonstrate its ability to pay the proffered wage and requested the petitioner to provide evidence of its ability to 
pay the proffered salary of $42,200 as of the date of filing and continuing until the present. 
The director also advised the petitioner that as it had indicated that the beneficiary would not fill a newly created 
position, he requested information as to the identity and wages paid to the former employee and requested that the 
petitioner provide evidence of the salary paid and document the position that was vacated. The director also 
requested the petitioner to provide copies of the employer's federal quarterly tax return for the period covered. 
In response, the petitioner, through counsel, provided a copy of the petitioner's 2004 federal corporate income tax 
return. It shows that the petitioner declared taxable income of $18,547 before the NOL deduction. Schedule L 
reflects that the petitioner had $19,521 in current assets and no current liabilities, yielding $19,521 in net cunent 
assets. Counsel did not provide a copy of any of the petitioner's quarterly federal tax returns, but indicated in his 
er that the beneficiary would fill the position of a former employee identified as - 
enclosed Wage and Tax Statement (W-2) for 2003 was also provided, as well as copies of three 
2004 Dav stubs from the last two weeks of June 2004 and the month of Julv. 2004. The W-2 reflects that the 
. d d, 
petitioner paid a salary of $43,200 to 
 2003. The pay stubs indicate that the petitioner had paid 
$25,200 to him as of the end of July 2 
 e transmittal letter also stated that counsel was enclosing a copy of 
the beneficiary's license to practice physical therapy in New York, but it is not contained in the materials 
submitted with the response. 
On August 10,2005, the director denied the petition. 
 The director determined that the petitioner had failed 
to establish the beneficiary's qualifying licensure in the state of New York because it had failed to provide 
either a letter fiom the designated licensing authority that the beneficiary was qualified to take the licensing 
examination or a copy of a beneficiary's license to practice therapy in the state,of New York. 
The director also determined that the record failed to demonstrate that the petitioner had the financial ability 
to pay the proffered wage of $42,200 per year as of the date of filing, December 13,2004. The director noted 
that the 2004 income tax return reflected that the current assets did not exceed the current liabilities in an 
amount sufficient to cover the proffered wage and also failed to show that the taxable income of $1 8,547 was 
sufficient. The director also noted that there was no documentary evidence provided to support the claim that 
the employee that the beneficiary is intended to replace had vacated the position. 
On appeal, counsel provides a copy of the beneficiary's license to practice physical therapy in New York. It 
indicates that it was awarded on February 25,2005. 
Counsel also provides seven letters from the petitioner's president 
 hey are all dated 
August 15, 2005 and are each styled as a "termination letter." 
 that the named 
employee "is no longer employed with our firm" and gives the last day of employment. One of the 
It is noted that the director specifically requested the petitioner to document that the position of the former 
employee was vacated in his request for evidence, issued on March 30, 2005. The AAO will not consider 
such evidence offered for the frst time on appeal where a petitioner has been put on notice of the deficiency. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (8IA 1988). 
Moreover, by submitting six other "termination letters," which do not identify the positions held, it is unclear 
if Mr. Elsayed was ever the employee intended to be replaced. 
It is noted that if a petitioner does not establish that it may have employed and paid the beneficiary an amount 
at least equal to the proffered wage during the relevant period, as noted above, CIS will examine the net 
income figure or the net current assets reflected on the petitioner's federal income tax return, without 
consideration of depreciation or other expenses such as amounts paid to other employees. 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 Woodcraft Hawaii, Ltd. v. FeZdman, 736 F.2d 1305 (9th Cir. 1984); see also Chi-Feng 
Chang v. T%ornburgh, 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 W.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
In this case, as explained by the director, neither the petitioner's taxable income of $18,547 before the NOL 
deduction, nor its net current assets of $19,521 as indicated on its 2004 corporate tax return, were sufficient to pay 
the beneficiary's proposed wage offer of $42,200. The petitioner has not established its continuing ability to pay 
the proffered wage. 
Similarly, the director also requested that the petitioner provide a copy of the beneficiary's New York License. 
It was not provided until the appeal. If the petitioner had wanted the submitted evidence to be considered, it 
should have submitted the document(s) in response to the director's request for evidence. Under the 
circumstances, the AAO need not and does not consider the sufficiency of this evidence provided for the first 
time on appeal. It is additionally noted that such a license, acquired on February 25, 2005, does not establish 
the beneficiary's requisite credentials as of the December 13, 2004, priority date. As such, the petitioner has 
not established either the petitioner's ability to pay the proffered wage or that the beneficiary had obtained the 
necessary licensure credentials a's of the priority date. 
A petitioner must establish the beneficiary's eligibility for the visa classification at the time of filing; a 
petition cannot be approved at a future date after eligibility is established under a new set of facts. Matter of 
Katigbak, 14 I&N Dec. 45'49 (Comm. 1971). Based on a review of the evidence contained in the underlying 
record, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.