dismissed EB-3 Case: Religion

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
 U.S. Citizenship 
prevent clearly unwal~anted and Immigration 
invasion of pmonal pri~~ay Services 
PUBLIC COPY 
FILE: 
 LlN 04 095 52033 "I Office: NEBRASKA DIRECTOR 
 MAY 1 6 2006 
IN RE: 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. $ 1 153(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. 
~obert P. Wiemann, Chief 
Administrative Appeals Office 
LIN 04 095 52033 
Page 2 
DISCUSSION: The Director, Nebraska Director, denied the preference visa petition that is now before the 
Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a church. It seeks to employ the beneficiary permanently in the United States as an assistant 
pastor. 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 petition stated that the church was established in 1984, and, employed two individuals. 
On appeal, counsel submits a brief and additional evidence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(ii), 
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
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 either 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 the Service. 
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 CFR 5 204.5(d). Here, the Form ETA 750 was accepted for processing on 
March 5,2003. The proffered wage as stated on the Form ETA 750 is $19,386.00 per year. 
The petition does not state the petitioner's gross and net incomes. On the Form ETA 750B, 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 at 1424 S. 55'" Street, Kansas City, Kansas. 
In support of the petition, counsel submitted a letter of recommendation; a certificate; and, eight business- 
checking statements. 
LIN 04 095 52033 
Page 3 
Because the evidence submitted was insufficient to demonstrate the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date, the director on March 26, 2004, requested, inter alia, 
additional evidence pertinent to that ability. Consistent with 8 C.F.R. 3 204.5(g)(2) the director requested 
copies of annual reports, federal tax returns, or audited financial statements to show that the petitioner had the 
continuing ability to pay the proffered wage beginning on the priority date. The Director also noted that the 
petitioner might submit W-2 Wage and Tax Statements or Forms MISC-1099 showing wages or 
compensation that the petitioner paid to the beneficiary as evidence of the petitioner's ability to pay wages. 
In response, counsel submitted a letter, dated June 10, 2004, from the petitioner's principal stating, inter alia, 
that the petitioner has the ability to pay the proffered wage. 
Counsel submitted property information, additional bank checking statements, and cancelled paychecks to the 
two staff individual of the church (the payments do not include the beneficiary). 
The director determined that the evidence submitted did not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date, and, on October 14, 2004, and, denied the 
petition. 
On appeal, counsel submits a legal brief with a Form G-28. Counsel states that of the two staff individuals 
noted in the petition, 
 ed as of December 2003. His salap, was $1,500.00 per month. 
The other individual, 
 is, at the time of counsel's brief submission, employed as an 
assistant pastor at the rate of $1,100.00 per month. 
Counsel contends that although " ... there does not appear to be sufficient funds available to pay ... [the 
beneficiary's] salary and cover the living expenses of other personnel," that the realty report indicating the 
total appraised valuation of $277,970.00 evidences the ability to pay the proffered wage. 
Counsel further states that the petitioner does not have to show that it pays the beneficiary the proffered wage. 
Until the beneficiary should receive his preference visa, the petitioner is not obligated to pay the beneficiary 
the proffered wage for purposes of the determination of the ability to pay the proffered wage. However, the 
argument of the petitioner's counsel that the Director erred in requesting the W-2 form showing wages paid to 
the beneficiary is incorrect. The Director did not require that the petitioner submit that W-2 form, but only 
suggested it to petitioner as one avenue to pursue in demonstrating the petitioner's ability to pay the proffered 
wage. Submission of W-2 forms showing wages paid to the beneficiary is one means of showing that the 
petitioner was able to pay at least some portion of the proffered wage, and may be used with other financial 
information to prove the ability to pay the proffered wage. 
In determining 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. 
The assertion by the petitioner's counsel that the petitioner's ability to pay the proffered wage is demonstrated 
by its having paid wages of $2,600.00 monthly is unconvincing. The regulation at 8 C.F.R. $ 204.5(g)(2) 
makes an exception to the necessity of a petitioner demonstrating, with copies of annual reports, federal tax 
returns, or audited financial statements, its ability to pay the proffered wage, if the petitioner is able to 
demonstrate that it employs 100 or more workers. No such exception is included in that regulation based on 
the size of a petitioner's payroll and none will be construed. That the petitioner was able to pay its expenses 
during the salient years does not demonstrate the ability to pay any additional wages. 
LIN 04 095 52033 
Page 4 
Counsel states that its realty assets are evidence of the petitioner's ability to pay the proffered wage. The 
petitioner's total assets, however, are not available to pay the proffered wage. The petitioner's total assets 
include those assets the petitioner uses in its business, which will not, in the ordinary course of business, be 
converted to cash, and will not, therefore, become funds available to pay the proffered wage. Only the 
petitioner's current assets, those expected to be converted into cash within a year, may be considered. 
Further, the petitioner's current assets cannot be viewed as available to pay wages without reference to the 
petitioner's current liabilities, those liabilities projected to be paid within a year. CIS will consider the 
petitioner's net current assets, its current assets net of its current liabilities, in the determination of the 
petitioner's ability to pay the proffered wage. Moreover, at least of the assets cited by counsel is property of 
the church itself, so it is not likely that the petitioner will liquidate the church to pay for a church employee. 
Should the petitioner continue to pursue this petition, this issue should be addressed further. 
Counsel advocates the use of the cash balance of the business accounts to show the ability to pay the 
proffered wage. Counsel's reliance on the balances in the petitioner's bank account is misplaced. First, bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. 5 204.5(g)(2), required to illustrate 
a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) 
is inapplicable or otherwise 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. As a 
church, the petitioner may not be required to pay income tax or file a tax return, but the regulations provide an 
alternative way to demonstrate the ability to pay the proffered wage by audited statements. Nevertheless, the 
record of proceeding does not contain a Form 990 or any other required evidence. 
The petitioner submitted no reliable evidence of any funds at its disposal during that year that it could have 
used to pay additional wages. The petitioner has not demonstrated the ability to pay the proffered wage. 
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.