dismissed EB-3 Case: Religious Education

ldentuyine dab ~~ to 
prevent &arty unwarranted 
invmfon d persoaal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
b&, 
EAC 03 254 51455 
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: 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a church. It seeks to employ the beneficiary permanently in the United States as a director of 
religious education. 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. 
On appeal, the petitioner asserts that it has had the continuing financial ability to pay the proffered salary. 
Section 203@)(3)(A)(ii) of the Act, 8 U.S.C. 
 1153@)(3)(A)(ii), provides employment based visa classification 
to qualified immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 9 204.5(g)(2) provides: 
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 f?om 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 profitiloss 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, 
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 9 204.5(d). Here, the Form ETA 750 was accepted for processing on April 30, 
2001. The proffered wage as stated on the Form ETA 750 is $15.1 8 per hour or $3 1,574.40 per annum. On the 
Form ETA 750B, signed by the beneficiary on April 25,2001, the beneficiary claims to have worked for the 
petitioner since 1992. 
On Part 5 of the visa petition, filed on August 29, 2003, the petitioner claims to have been established in 1986, 
have a gross annual income of $35,0000 to $40,000 per year, and to currently employ no workers. In support of 
its ability to pay the beneficiary's proposed wage offer of $3 1,574.40 per year, the petitioner initially submitted a 
copy of an Internal Revenue Service (IRS) notice, dated June 28, 2002, informing the petitioner of its assignment 
of an employer identification number and that it must file a Form 941 (Employer's Quarterly Federal Tax Return) 
by April 30,2003. 
On August 25, 2004, the director requested additional evidence in support of the petitioner's ability to pay the 
proffered wage of $31,574.40 per year. The director instructed the petitioner to submit additional evidence to 
establish that the employer had the ability to pay the proffered wage beginning at April 30, 2001, and continuing 
until the present. The director also requested that the petitioner submit copies of its 2001 and 2002 federal 
income tax return(s) as well as copies of its Form 941 for the relevant period. 
did not provide any federal returns, but provided a letter, dated October 22,2004, from 
, claiming that as a church, the petitioner was exempted from filing a Form 990, Return of 
Income Tax. 
 Instead, the petitioner provided some internally prepared "annual 
reports." They contain an itemization of income and expenses and with income exceeding expenses by $7,347.57, 
-. 
aid $7,730.55 in 2002 and 2003, respectively, and indicating -$6,006.96 in 2004. 
 also references a 
Massachusetts "Certificate of Exemption" that exempts the petitioner from taxation on the purchase of tangble 
~ersonal woDertv. He additionallv mentions a letter. dated October 19. 2004. in which he stated that the church 
.I 
hid not employ the beneficiary until January 2004. The October 19" letter, signed by was 
submitted in connection with the beneficiary's application for permanent resident status and also claims that the 
church did not employ the beneficiary in 2001 as she had no work permit.' 
The director determined that the petitioner had failed to demonstrate its continuing ability to pay the proffered 
wage and denied the petition on December 13, 2004. He found that the petitioner's internally generated financial 
statements were of little evidentiary value as they were created by, and were representations of the petitioner's 
management. 
On appeal, the petitioner resubmits copies of its internally prepared annual reports for 2002 and 2003, supported 
by copies of monthly reports. The annual figures are reflected as those previously provided to the underlying 
record. For the year 2004, the petitioner provides an "eight month report" showing -$6,333.15 in net income, 
including $15,937.50 vaid to a director of religious education. 
 In a letter. dated December 30. 2004. and 
w 
submitted with the appeal,identifies this payment as wages paid ti the beneficiary bekeen ~anuary 
and August 2004. The petitioner also provides similar internal monthly and annual reports of 2001, which 
indicate a year-end net income of $1,465.64, as well as a letter, dated December 27, 2004, from FirstFed bank and 
attached statements showing that the petitioner holds a certificate of deposit (CD) first opened with $8,000 in 
August 1998 and showing a current balance of $9,928.52. Finally, the petitioner offers copies of its bank 
checking account statements for 200 1-2004.~ 
On appea acknowledges that the records show that with the expenses that the petitioner had, it 
would have been "difficult" to pay the beneficiary. But by adding back various expenses taken that - 
characterizes as goodwill contributions to the parent church, payment of an associate pastor's rent and a pastor's 
health insurance, he asserts that the petitioner could have paid the beneficiary a salary of $25,500. 
1 
By contrast, the beneficiary lists employment with petitioner since 1992, as stated on the ETA 750-B. 
2 
 A June 19,2006, bank statement has also been provided, along with duplicate copies of the documents 
submitted with the appeal, in response to a recent facsimile inquiry. 
These assertions are not persuasive. It is additionally noted that, based on the figures shown on the approved 
labor certification as mentioned above, the annualized proffered wage is $31,574.40 per year: not $25,500 as 
claimed b. In determining the petitioner's ability to pay the proffered wage during a given period, 
Citizenship and Immigration Services (CIS) will first examine whether a petitioner may have employed and paid 
the beneficiary during the relevant period. If the petitioner establishes by documentary evidence that it employed 
the beneficiary at a salary equal to or greater than the proffered wage during a given period, the evidence will be 
considered prima facie proof of the petitioner's ability to pay the proffered wage. To the extent that the 
petitioner paid wages less than the proffered salary, those amounts will be considered in calculating the 
petitioner's ability to pay the proffered wage. If any shortfall between the actual wages paid by a petitioner to a 
beneficiary and the proffered wage can be covered by either a petitioner's net income or net current assets during 
the given period, the petitioner is deemed to have demonstrated its ability to pay a proffered salary. Here, 
although a claim of wages paid to the beneficiary in 2004 has been made, no first-hand corroboration of such 
payment such as a Wage or Tax Statement (W-2) or Miscellaneous Income (Form 1099) was provided to the 
record. Simply going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. See Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 
1998)(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses already taken by a petitioner. 
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. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thornburgh, 71 9 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 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 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 corporate 
income tax returns, rather than the petitioner's gross income. The court specifically rejected the argument that the 
Service should have considered income before expenses were paid rather than net income. In this case, we will 
not consider such expenses already taken as contributions to another church or payment of a pastor's health 
insurance as available funds to pay the proffered salary of $31,574.40 per year. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner becomes eligible under a new set of 
facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The fact that the petitioner may not have had federal income tax returns to provide, does not waive the necessity 
that such financial statements offered to a record must be audited. As noted by the director, the internally 
generated financial reports submitted in this matter are not persuasive evidence of a petitioner's ability to pay the 
proffered wage. According to the plain language of 8 C.F.R. 8 204.5(g)(2), where a petitioner relies on financial 
statements as evidence of its financial condition and ability to pay the certified wage, those statements must be 
audited. The financial statements that have been offered to the record are a presentation of financial data of an 
entity that is not accompanied by an accountant's assurance as to conformity with generally accepted accounting 
-- 
3 
 It is calculated as $15.18 x 40hrs. x 52 wks. 
Page 5 
principles (GAAP) and are restricted to information based upon the representations of management. As these 
statements have not been audited as required by 8 C.F.R. $ 204.5(g)(2), they are not probative of the petitioner's 
ability to pay the proffered salary during the periods represented.4 Even if the figures reflected as the petitioner's 
net income were considered as reliable, they were approximately $21,000 less than the proffered wage in 2001 
after applying the petitioner's approximately $9,000 CD toward payment; approximately $24,000 short of the 
proposed wage offer in 2002 and 2003; and approximately $37,000 less than the proffered salary in 2004. 
Nor is the petitioner's reliance on its checking account statements persuasive. First, bank statements are not among 
the three types of evidence, enumerated in 8 C.F.R. $ 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," as discussed above, it cannot 
be concluded that there is an automatic exemption from the requirements of the regulation because a petitioner is a 
church. Also, bank balances represent only a portion of a petitioner's assets during a limited period of time and do not 
reflect other encumbrances that may affect its financial status. Moreover, such bank balances would already be 
reflected as part of the petitioner's summary of income and expenses for a gven period. 
CIS will also review a petitioner's net current assets. Net current assets are the difference between a petitioner's 
current assets and current liabilities and represent a measure of a petitioner's liquidity during a given period and a 
possible source out of which a proposed wage offer could be paid. In this case, as noted above, the petitioner 
could have elected to submit audited financial statements if IRS Form 990 was inapplicable to its situation. As 
such, other than the approximately $9,000 certificate of deposit balance held as of 2001, the petitioner's current 
assets cannot be evaluated from the documentation submitted to the record. 
The petitioner has not provided the prescribed evidence as set forth in 8 C.F.R. 9 204.5(g)(2). Based on the 
evidence contained in the record and after consideration of the evidence and argument presented on appeal, the 
AAO concludes that the petitioner has not demonstrated its continuing financial ability to pay the proffered as of 
the priority date of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 29 1 of the Act, 8 U.S.C. $ 136 1. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
4 
 An annual report that is presented as a comprehensive evaluation and would include a company's financial 
statements prepared in conformance with GAAP as well as an audit report and other explanatory data 
necessary to review a firm's financial position.