dismissed EB-3 Case: Printing

identifyingdatadeletedto
preventclearly unwarr~n~
invasionofpersonalpnv~cy
PUBLIC COpy
u.s.Department ofHomeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington, DC 20529
U.s.Citizenship
and Immigration
Services
FILE:
WAC 04 010 54684
Office: CALIFORNIA SERVICE CENTER Date: APR 1 7 2DfJ7
INRE: Petitioner:
Beneficiary:
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. § 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, Director
Administrative Appeals Office
www.llscis~gov
Page 2
DISCUSSION: The Director, California Service Center, denied the instant preference visa petition. The
Administrative Appeals Office (AAO) dismissed a subsequent appeal. The AAO subsequently denied a
motion to reopen based on ineffective assistance of counsel but reopened the matter sua sponte on other
grounds, and denied the petition again. The AAO will again reopen the matter sua sponte to consider
additional evidence. The decisions of the director and the AAO will be affirmed. The petition will be denied.
The petitioner is a print shop. It seeks to employ-the beneficiary permanently in the United States as a
computer typesetter/keyliner. 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 that it had the continuing ability to pay the beneficiary the proffered wage
beginning on the priority date of the visa petition and denied the petition accordingly. The first motion
claimed that the petitioner had been ineffectively represented. The matter was reopened to consider that
claim and the previous decision of denial was affirmed.
As set forth in the director's decision of denial the sole issue in this case is whether or not the petitioner has
demonstrated the continuing ability to pay the proffered wage beginning on the priority date.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(i),
provides for granting 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.
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 abiiity 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 fmandal
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
March 28, 2001. The proffered wage as stated on the Form ETA 750 is $3,100 per month, which equals
$37,200 per year.
The petition in this matter was submitted on October 21, 2003. On the petition, the petitioner stated that it
was established during 1989 and that it employs two workers. The petition states that the petitioner's gross
annu<!l income is $505,000 and that its net annual income is $100,000. On the Form ETA 750, Part B, signed
by the beneficiary, the beneficiary did not claim to have worked for the petitioner. Both the petition and the
Form ETA 750 indicate that the petitioner will employ the beneficiary in Cameron Park, California.
/
Page 3
r
The AAO reviews de novo issues raised in decisions challenged on appeal or motion. See Dor v. INS, 891
F.2d 997, 1002 n. 9 (2d Cir. 1989). In the instant case the record contaips (1) the joint 2001, 2002, 20031, and
2004 joint Forni 1040 U.S. Individual Income Tax Returns of the petitioner's owner and the owner's spouse,
(2) the petitioner's unaudited profit and loss statement for the six-month period ended June 30,2003, for
2003, and for the six-month period ended June 30, 2004, (3) semi-monthly pay statements showing wages the
petitioner paid to the beneficiary, (4) California Form DE-6 quarterly wage statements, (5) checks drawn
against the petitioner's business account, (6) an affidavit, dated August 23, 2004, from the petitioner's owner
in which he pledges his personal income and assets, as necessary, to pay the proffered wage, (7) property tax
statements pertinent to real property the petitioner's owner and owner's spouse hold as trustees and on their
own behalf, (8) monthly summaries of the petitioner's owner's investment account, and (9) a letter dated
September 15, 2005 from the petitioner's owner's ballie The record does not contain any other evidence
relevant to the petitioner's continuing ability to pay the proffered wage beginning on the priority date.
The petitioner's tax returns show that during the salient years the petitioner was held as a sole proprietorship
and the petitioner's owner and owner's spouse had one additional dependent, for a household total of three
people during both years.
The 2001 Schedule C shows that during that year the petitioner returned a profit of $48,080. During that year
the petitioner's owner and owner's spouse declared adjusted gross income of $38,144 including the
petitioner's net profit offset by deductions.
The 2002 Schedule C sho~s that during that year the petitioner returned a profit of $50,587. During that year
the petitioner's owner and owner's spouse declared adjusted gross income of $38,294 including the
petitioner's net profit offset by deductions.
The 2003 Schedule C shows that during that year the petitioner returned a profit of$90,615. During that year
the petitioner's owner and owner's spouse declared adjusted gross income of $70,443 including the
petitioner's net profit offset by deductions.
The 2004 Schedule C shows that during that year the petitioner returned a profit of $93,507. During that year
the petitioner's owner and owner's spouse declared adjusted gross income of $73,297 including the
petitioner's net profit offset by deductions.
1 The service center requested, on February23, 2004, that the petitioner provide the 2003 tax return pertinent
to the petitioner. Although counsel responded to other elements of that request counsel did not then provide
the requested 2003 return or any reason for that omission. Subsequently, on appeal counsel provided the
relevant 2003 tax return.
Where, as here, a petitioner has been previously put on notice of a deficiency in the evidence and afforded an
opportunity to respond to that deficiency, this office will not accept evidence relevant to that deficiency that is
offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764(BIA 1988). Under the
circumstances, this office need not consider the tardily submitted· 2003 tax return. In the instant case,
however, this office will exercise its discretion to consider the tardily submitted 2003 tax return.
Page 4
The pay statements submitted show wages the petitioner paid to the beneficiary during 2005. The most recent
of those statements, for the pay period ending November 30, 2005, shows a year-to-date total gross pay of
$24,800.
The California quarterly wage statements submitted are for the second, third, and fourth quarters of 2003.
During those quarters the petitioner had one employee to whom it paid $3,675, $7,350, and $1,225 during
those quarters, respectively.
The photocopied checks were drawn in various amounts against the petitioner's business account during
2001, 2002, and 2003. In a list of exhibits counsel stated that those amounts represent subcontractor
payments.
The September 15,2005 letter from the petitioner's owner's bank states that the petitioner's owner carries an
average balance of ten to fifteen thousand in its business checking account and five to ten thousand in a
personal savings account. That letter also states that the petitioner's owner has a line of credit in the amount
of$150,000.
After issuing the decision on appeal this office discovered that CIS had received evidence and a brief
pertinent to the instant case prior to that dismissal, but that it had not then been incorporated into the record.
This sua sponte reopening is for the limited purpose of considering the new evidence together with the
evidence previously provided.2 That additional evidence, and the evidence previously received, is listed
above.
Counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.F.R. § 204.5(g)(2) makes
clear that where a petitioner relies on fmancial statements to demonstrate its ability to pay the proffered wage,
those financial statements must be audited. Unaudited fmancial statements are the representations of
management. The unsupported representations of management are not reliable evidence and are insufficient
to demonstrate the ability to pay the proffered wage. The unaudited financial statements will not be
considered.
Counsel indicates that the petitioner's owner's personal income and assets should be considered in assessing
the petitioner's continuing ability to pay the proffered wage beginning on the priority date. The petitioner is a
sole proprietorship. As.a sole proprietorship is not an entity separate from its owner, the owner is obliged to
pay its debts and obligations out of his own income and assets. The petitioner's owner's August 23, 2004
affidavit states that he intends to do so. To the extent that they are demonstrated to be available to pay wages
the petitioner's owner's income and assets will be considered. The extent of their availability is discussed
further below.
Property tax statements in the record demonstrate that the petitioner's owner owns real property, both in his
own right and as trustee, both solely and jointly with his wife. The evidence shows the assessed value of that
2 The previous decisions on appeal and on the first motion addressed various issues then raised. Those issues
need not be addressed again in the instant decision unless renewed by counsel or suggested by the evidence.
Page 5
property b~t not the market value.3 Further, the evidence does not indicate the extent to which those
properties may be encumbered.4 Further still, as the petitioner's owner will not necessarily realize the value
of those properties in cash in the near future that value has not been shown to be available to pay wages. The
value of the properties owned by the petitioner's owner will not be considered in evaluating the petitioner's
continuing ability to pay the proffered wage beginning on the priority date.
The record contains evidence pertinent to bank and investment accounts5 of the petitioner and the petitioner's
owner. Those accounts are not convincing evidence of the petitioner's ability to pay additional wages for
several reasons. First, bank statements are not among the three types of evidence, enumerated in 8 C.F.R.
§ 204.5(g)(2), which are the requisite evidence of a petitioner's ability to pay a proffered wage. While this
regulation allows additional material "in appropriate cases," the petitioner has not demonstrated that the
evidence required by 8 C.F.R. § 204.5(g)(2) is inapplicable or that it paints an inaccurate financial picture of
the petitioner. Second, bank statements show the amount in an account on a given date, and cannot show the
sustainable ability to pay a proffered wage.6 Third, no evidence was submitted to demonstrate that the funds
reported on the petitioner's bank statements somehow reflect additional available funds that were not reported
on its tax returns.
The record contains checks which counsel states represent payments to subcontractors.. Counsel implies that
these payments should be considered in the determination of the petitioner's ability to pay additional wages to
an employee during the salient years.
The assertions of counsel are not evidence and thus are not entitled to any evidentiary weight. See INS v.
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980);
Unsupported assertions of counsel are, therefore, insufficient to sustain the burden of proof. The record
contains no evidence that the checks were drawn to subcontractors.
Further, even if the petitioner demonstrated that those checks were drawn to subcontractors for performance
of some type of outside labor, that would be insufficient. In order to show that subcontractor payments were
available to pay a beneficiary's wages during a given year, the petitioner must show what part of those
amounts were paid specifically for performance of the duties of the proffered position. If they were paid for
3 A disinterested estimate of market value would typically be produced by a professional real estate appraiser.
4 The extent of encumbrances to a property would typically be demonstrated by submitting a timely title
search.
5 The evidence includes monthly statements and the September 15, 2005 bank letter.
6 A possible exception exists to the general rule that bank accounts are ineffective in showing a petitioner's
continuing ability to pay the proffered wage beginning on the priority date. Ifthe petitioner's account balance
showed a monthly incremental increase greater than or equal to the monthly portion of the proffered wage, the
petitioner might be found to have demonstrated the ability to pay the proffered wage with that incremental
increase during that month. Ifthat trend continued, with the monthly balance increasing during each month in
an amount at least equal to the monthly amount of the proffered wage, then the petitioner might have shown
the ability to pay the proffered wage during the entire salient period. That scenario is absent from the instant
case, however, and this office does not purport to decide the outcome of that hypothetical case.
Page 6
the performance of some other necessary labor, then they were not available to pay to the beneficiary for
working as a computer typesetter/keyliner. \
The September 15, 2005 letter from the petitioner's owner's bank states that the petitioner has a credit line
available. A credit line, or any other indication of available credit, is not an indication of a sustainable ability to
. pay a proffered wage. An amount borrowed against a line of credit becomes an obligation. The petitioner must
show the ability to pay the proffered wage out of its own funds, rather than out of the funds of a lender. The
credit available to the petitioner is not part of the calculation of the funds available to pay the proffered wage.
The petitioner must establish that its job offer to the beneficiary is realistic. Because filing 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. 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, Citizenship and Immigration Services (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 ofSonegawa, 12 I&N Dec. 612 (Reg. Comm.1967).
In detennining the petitioner's ability to pay the proffered wage during a given period, CIS will examine
whether the petitioner employed 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 petitioner established that it paid the beneficiary $24,800 during 2005. The petitioner did not
establish that it paid any other wages to the beneficiary.
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the
proffered wage during a given period, the AAO will, in addition, examine the net income figure reflected on
the petitioner's federal income tax return, without consideration of depreciation or other expenses. CIS may
rely on federal income tax returns to assess a petitioner's ability to pay a proffered wage. Elatos Restaurant
Corp. v. Sava, 632 F.Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft 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); KC.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), affd, 703 F.2d 571 (7th Cir. 1983).
Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, showing
that the petitioner paid total 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 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.
The petitioner, however, is a sole proprietorship. Because the petitioner's owner is obliged to satisfy the
petitioner's debts and obligations out of his own income and assets, the petitioner's income and assets are
properly combined with those of the petitioner's owner in the determiQation of the petitioner's ability to pay
the proffered wage .. The petitioner's owner is obliged to demonstrate that he could have paid the petitioner's
existing business expenses and still paid proffered wage. In addition, he must show that he could still have
Page 7
sustained himself and his dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. m. 1982), aifd, 703 F.2d 571
(7th Cir. 1983).
The proffered wage is $37,200 per year. The priority date is March 28,2001.
During 2001 the petitioner's owner declared adjusted gross income of $38,144, including the petitioner's
profit. If the petitioner's owner had been obliged to pay the proffered wage out of that amount he would have
been left with $944 with which to support his faini1yof three during that year. To expect that the petitioner's
owner could have supported his family for a year on that amount is unreasonable. The petitioner has not
demonstrated that any other funds were available to it during that year with which it could have paid the
proffered wage. The petitioner has not demonstrated the ability to pay the proffered wage during 200i.
During 2002 the petitioner's owner declared adjusted gross income of $38,294, including the petitioner's
profit. If the petitioner's owner had been obliged to pay the proffered wage out of that amount he would have
been left with $1,094 with which to support his family of three during that year. To expect that the
petitioner's owner could have supported his family for a year on that amount is urlreasonable. The petitioner
has not demonstrated that any other funds were available to it during that year with which it could have paid
the proffered wage. The petitioner has not demonstrated the ability to pay the proffered wage during 2002.
During 2003 the petitioner's owner declared adjusted gross income of $70,443, including the petitioner's
profit. If the petitioner's owner had been obliged to pay the proffered wage out of that amount he would have
been left with $33,243 with which to support his family of three during that year. No evidence pertinent to
the petitioner's owner's monthly budget was requested or provided. No reason exists, however, to doubt that
the petitioner's owner could support his household of three for a year on that remaining amount. The
petitioner has demonstrated the ability to pay the proffered wage during 2003.
During 2004 the petitioner's owner declared adjusted gross income of $73,297, including the petitioner's
profit. If the petitioner's owner had been obliged to pay the proffered wage out of that amount he would have
been left with $36,097 with which to support his family of three during that year.. No evidence pertinent to
the petitioner's owner's monthly budget was requested or provided. No reason exists, however, to doubt that
the petitioner's owner could support his household of three for a year on that remaining amount. The
petitioner has demonstrated the ability to pay the proffered wage during 2004.
The petitioner demonstrated that it paid the beneficiary $24,800 during 2005. The petitioner would typically
be required to show that it was able to pay the balance of the proffered wage during that year. The petition in
this matter, however, was submitted on October 21, 2003. On that date the petitioner's 2005 tax return was
unavailable. On February 23,2004 the service center issued a request for the petitioner's tax returns through
2003. The service center never requested subsequent tax returns or any other evidence pertinent to the
petitioner's ability to pay the proffered wage during subsequent years. The petitioner is relieved of the
obligation of showing the ability to pay the balance of the proffered wage during 2005 and the ability to pay
the proffered wage during subsequent years.
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during 2001 and 2002.
Therefore, the petitioner has not established that it had the continuing ability to pay the proffered wage
Page 8
beginning on the priority date. The petition was correctly denied on that basis, which has not been overcome
on appeal.
The record suggests an additional issue that was not addressed in the decision of denial.
The record contains a sworn statement from the petitioner's owner dated March 2006. In that document the
petitioner's owner stated that the beneficiary, rather than the petitioner, appealed the original decision of
denial. 7 The beneficiary of a visa petition is not a recognized party in a proceeding. 8 C.F.R. § 103.2(a)(3).
Only the affected party is permitted to file an appeal. 8 C.F.R. § 103.3(a)(2)(i): If the beneficiary, rather than the
petitioner, filed that appeal, that appe~l should have been rejected. 8 C.F.R. § I 03.3(a)(2)(v)(A)(1).
.Because the decision of denial did not discuss this issue, and the petitioner has not been accorded an
opportunity to respond to it, today's decision is not based on this issue, even in part. If the petitioner attempts
to overcome today's decision on motion, however, it should address this issue.
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.C.
§ 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.
7 The petitioner's owner stated, "[The beneficiary] said he would appeal the decision, which he did." The petitioner's
owner also made other statements indicating that the beneficiary, rather than the petitioner, was prosecuting the visa
petition.