dismissed EB-3 Case: Religious Studies

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 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. 8 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
DAVID GRUNBLATT 
WILDES, WEINBERG, GRUNBLATT & WILDES, P.C. 
5 15 MADISON AVENUE, gTH FLOOR 
NEW YORK, NY 10022 
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. 
Ro . Wiemann, Director 
Administrative Appeals Office 
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 school. It seeks to employ the beneficiary permanently in the United States as a religious 
studies teacher. 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. 
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 the granting of 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 or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
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 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 profitlloss 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 petition's 
priority date, which is the date 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. 5 204.5(d). The priority date in the instant 
petition is January 13, 1998. The proffered wage as stated on the Form ETA 750 is $38,500.00 per year. On 
the Form ETA 750B, signed by the beneficiary on January 9, 1998, the beneficiary did not claim to have 
worked for the petitioner. The ETA 750 was certified by the Department of Labor on March 1,2001. 
The 1-140 petition was submitted on December 22,2003. On the petition, the petitioner claimed to have been 
established in March 1990, to currently have 21 employees, and to have a gross annual income of 
$1,327,653.00. With the petition, the petitioner submitted supporting evidence.' 
In a decision dated July 26, 2004, the director determined that the evidence did not establish that the petitioner 
had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence, and denied the petition. 
1 
 Supporting evidence submitted by the petitioner includes evidence submitted along with a prior 1-140 petition that the 
Vermont Service Center denied on July 13, 2002 and in response to a request for evidence (RFE) issued for the prior I- 
140 petition. 
Page 3 
On appeal, counsel states that the petitioner has established its fmancial viability based on fmancial documents 
that shows the petitioner's continuously improving financial status and its capability to finance a significant staff, 
and the petitioner's status as a non-profit religious school needs to be taken into consideration. Counsel also 
states that CIS should have used the prevailing wage at the time of the filing of the Form ETA 750 instead of the 
amended proffered wage listed on the Fonn ETA 750 in calculating the petitioner's financial viability. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 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 for each year thereafter, until the beneficiary obtains lawful permanent residence. 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. Cornm. 1977). See also 8 C.F.R. 3 204.5(g)(2). In 
evaluating whether a job offer is realistic, 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 of Sonegawa, 12 I&N Dec. 
612 (Reg. Comrn. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on January 9, 1998, the beneficiary did not claim 
to have worked for the petitioner. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
without consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for 
detennining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Coy. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcrafi Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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), affd., 703 F.2d 571 (7" Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. 
The evidence indicates that the petitioner is a non-profit organization. The record before the director closed on 
December 22,2003 with the receipt by the director of the petitioner's 1-140 petition and supporting evidence. As 
of that date the petitioner's federal tax return for 2003 was not yet due. Therefore the petitioner's tax return for 
2002 is the most recent return available. The record does not contain the petitioner's Form 990 Return of 
Organization Exempt from Income Tax, and a letter from counsel dated May 7, 2002 states that the petitioner is 
"exempt from filing tax returns with the government [and this] is why the organization has no tax returns to 
supply to INS." CIS does acknowledge that certain non-profit entities are exempt from filing the Form 990. 
Page 4 
Copies of the petitioner's Form 941 Employer's Quarterly Tax Returns from 1998 to 2002 and from two quarters 
in 2003 do appear in the record.* CIS, as stated above, relies on net income in determining the petitioner's 
ability to pay the proffered wage, and net income considers income after expenses were paid. The Form 941 
shows the amount the petitioner paid for wages and also the petitioner's federal tax liability. It does not, 
however, show how much money the petitioner received and how much money the petitioner used. Thus, the 
Form 941 is insufficient to supplement the Form 990 used by CIS to calculate net income. 
The regulations provide for the submission of annual reports or audited financial statements. While CIS does 
acknowledge that the petitioner may not be required to file an income tax return with the Internal Revenue 
Service, there is no explanation in the record for why the petitioner was unable to submit another type of required 
evidence. 
Counsel states that "it borders on the absurb for the service center to claim that a fully functioning private 
school in operation continuously from 1990 to the present did not have the means to pay an additional teacher 
at the time [the ETA 7501 was filed in 1998," and cites to Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comrn. 
1967) in support of the need to look at "context." Specifically, counsel states that "the school has established a 
track record because "[it] was functioning during the seven year period prior to the filing of the application . . . 
and continues to do so during the six [year] period following the filing of this petition!" 
Counsel's reliance on Sonegawa is misplaced. That case relates to a petition filed during uncharacteristically 
unprofitable or difficult years, but only within a framework of profitable or successful years. The petitioning 
entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about 
$100,000.00. During the year in which the petition was filed in that case, the petitioner changed business 
locations and paid rent on both the old and new locations for five months. There were large moving costs and, 
also, a period of time when the petitioner was unable to do regular business. The Regional Commissioner 
determined that the petitioner's prospects for a resumption of successful business operations were well 
established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. 
Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had been 
included in the lists of the bestdressed Califomia women. The petitioner lectured on fashion design at design and 
fashion shows throughout the United States and at colleges and universities in Califomia. The Regional 
Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and 
outstanding reputation as a couturiere. 
No unusual circumstances, parallel to those in Sonegawa, have been shown to exist in this case, nor has it 
been established that some of the years in question were uncharacteristically unprofitable years for the 
petitioner. The fact that the petitioner was operating in 1990 and continues to operate does not negate the fact 
that the petitioner has failed to show its ability to pay the proffered wage for any of the years in question. 
Even though the circumstance surrounding this case is different from those in Sonegawa, the totality of the 
circumstances affecting the petitioner will still be considered if the evidence warrants such consideration. 
Due to the fact that the petitioner is a non-profit and tax-exempt school and the record does not contain any 
tax returns, the AAO finds that such consideration is warranted in this case and will closely examine 
counsel's assertions and evidence available in the record. 
Counsel, in mentioning the need to "[take] into account appropriate context, namely that the employer is a not for 
profit religious school," discusses how "no school in the nation funds itself solely on its tuition" and asserts that 
The petitioner's Form 941 Employer's Quarterly Tax Return for March 31, 1999 does not appear in the record 
Page 5 
"some of the most well established and prestigious schools in fact are often running, on an going basis, on a 
deficit." Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. 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)). 
Counsel states that the petitioner's bank records from March 1998 through December 1998 "clearly show that 
during the relevant year, during each and every month the petitioner had sufficient cash flow to pay the salary 
proposed." Counsel's reliance on the balances in the petitioner's bank accounts is misplaced. While 8 C.F.R. 
3 204.5(g)(2) allows additional material "in appropriate cases," bank statements show the amount in an 
account on a given date, and cannot show the sustainable ability to pay a proffered wage. In addition, the 
record only contains 5 monthly bank statements for 1998, 5 monthly bank statements for 1999, 5 monthly 
bank statements for 2000, 5 monthly bank statements for 2001, 3 monthly bank statements for 2002, and 6 
monthly bank statements for 2003.~ Contrary to the counsel's assertion, for 1998, only the bank statements 
for March, July, November, and December appear in the record. Thus, even if it is appropriate to look at the 
petitioner's bank statements, the petitioner's bank statements fail to establish the petitioner's ability to pay the 
proffered wage every month from January 1998 until December 2003. 
Counsel also mentions the petitioner's continuously improving financial documentation. Specifically, counsel 
points to a statement from Memll Lynch regarding the petitioner's investor account. This statement only shows 
the petitioner's assets in 2002; it does not show the petitioner's liabilities and thus does not paint an accurate 
picture of the petitioner's financial situation. Moreover, this statement may indicate that the petitioner had assets 
in 2002, but the petitioner must establish its ability to pay the proffered wage during the entire period in question 
and not just 2002. 
The record also contains the petitioner's deposit records from May 2003 to October 2003. These records show 
the amount of donations and other forms of income the petitioner received each month. These records, similar to 
the Merrill Lynch statement, only show the petitioner's assets for a limited amount of time; they do not show the 
petitioner's liabilities and they do not show the petitioner's ability to pay the proffered wage during the entire 
period in question.4 
In addition, the record contains balance sheets for June 30,2000 and June 30,2001, which are in essence financial 
statements. No evidence in the record shows that these are audited financial statements. Unaudited financial 
statements are not persuasive evidence. According to the plain language of 8 C.F.R. 5 204.5(g)(2), where the 
petitioner relies on financial statements as evidence of a petitioner's financial condition and of its ability to 
pay the proffered wage, those statements must be audited. Unaudited statements are the unsupported 
representations of management. The unsupported representations of management are not persuasive evidence 
of a petitioner's ability to pay the proffered wage. 
For 1998, the record includes bank statements from February, part of March, July, November, and December. For 
1999, the record includes bank statements from January, February, March, July, and August. For 2000, the record 
includes bank statements from January, February, March, July, and August. For 2001, the record includes bank 
statements from January, February, March, July, and August. For 2002, the record includes bank statements from 
January, February, and March. For 2003, the record includes bank statements from April, May, June, July, August, and 
September. 
4 
 The deposit records do subtract expenses from the total income to come up with the net income. However, for all 6 
reports, the expenses are listed as $0.00. The AAO finds it unlikely that the petitioner, a school, had no expense for 6 
months. 
Counsel states that the petitioner's quarterly payroll tax returns show that the petitioner is "[capable] of financing 
a significant staff." The fact that the petitioner had the ability to pay the wages of its staff is irrelevant to whether 
it has the ability to pay the beneficiary's proffered wage at the priority date of the petition; the petitioner must 
demonstrate that it has extra assets, aside from money used to pay its staff, to pay the wages of an additional staff. 
If the petitioner has established that the beneficiary will be replacing another staff performing the duties of the 
proffered position, the wages already paid to that staff may be shown to be available to prove the ability to pay the 
proffered wage to the beneficiary. No evidence in the record shows that the beneficiary is replacing another staff. 
The petitioner's Form 941 Employer's Quarterly Tax Returns do show the total amount of wages paid per year. 
In 1998, the petitioner paid $209,027.65 in wages. In 1999, the amount of wages paid cannot be determined 
because the petitioner's quarterly tax return for March 31, 1999 is missing from the record. In 2000, the 
petitioner paid $265,992.42 in wages. In 2001, the petitioner paid $240,305.95 in wages. In 2002 and 2003, the 
amount of wages paid cannot be determined because the record does not contain all the quarterly tax returns for 
2002 and 2003. Based on the amount of wages paid, a wage of $38,500.00 would be a significant percentage 
increase on these amounts. Specifically, the petitioner would need 18.4% in wage increase for 1998, 14.5% in 
wage increase for 2000, and 16.0% in wage increase for 2001. 
Counsel also asserts that "the service center erred as a matter of fact and law by not analyzing the 'ability to pay' 
based upon the prevailing wage for the position in 1998 when the application was filed but rather on the amended 
prevailing wage established later when the application was ongoing." In support of his assertion, counsel states 
that "[tlhis basic principle of financial analysis and common sense was confumed in Masonry Masters, Inc. vs. 
Richard Thornburgh, 876 F. 2d 898." The correct citation for Masonry Masters, Inc. v. fiomburgh is 875 F.2d 
898 (D.C. Cir. 1989). 
CIS must look to the job offer portion of the labor certification to determine the required qualifications for the 
position. CIS may not ignore a term of the labor certification, nor may it impose additional requirements. See 
Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Cornm. 1986). On the ETA 750, the 
proffered wage was changed by the petitioner on October 26,2000, as indicated by "YVF Oct 26,2000" written 
above the correction. The ETA 750 was certified on March 1, 2001, after the correction was made. The AAO 
will not amend the ETA 750 after it has been certified by the Department of Labor based on the information on 
the ETA 750. In addition, aside from counsel's statement that "the prevailing wage at that time was in fact 
$31,116.80 pursuant to the OES survey in effect at that time," no evidence in the record shows that $31,116.80 
was indeed the original proffered wage as listed on the ETA 750. The original amount, with the consent of the 
petitioner, was covered up with white-out, and the amount $38,500.00 is the only proffered wage on the ETA 
750. As for counsel's reliance on Masonry Masters, that case was decided by the District of Columbia Circuit. 
The petitioner is located in New York, and New York is under the jurisdiction of the Second Circuit. Thus, 
District of Columbia Circuit decisions are not binding, but merely persuasive. 
Counsel also points to Masonry Masters regarding a beneficiary's potential to increase a petitioner's revenues and 
states that the petitioner in this case "[would become] more successful by growing and expanding." Although 
part of that decision mentions the ability of the beneficiary to generate income, the holding is based on other 
grounds. Further, in this instance, no detail or documentation has been provided to explain how the beneficiary's 
employment as a staff would result in the petitioner becoming more successful. 
Counsel states on the Form I-290B that the Vermont Service Center "improperly misapplied recent guideance 
with regard to the issuance of 'RFEs."' However, in the brief, counsel states that "we cannot object to the Service 
Center's use of the 'no RFE policy' in the instance case, given that it was in compliance with the guidelines 
provided and given further that the Service must have felt that it had all the information necessary before it, to 
Page 7 
make a decision, as this was the second time a petition was filed in the instance case." The regulation at 8 C.F.R. 
5 204.5(g)(2) states that the director may request additional evidence in appropriate cases. Hence, the director 
may, but is not required to, request additional evidence. In any event, the notice of appeal issued to the 
petitioner sufficiently overcomes any harm that resulted from the director not requesting additional evidence 
because the petitioner can file an appeal and submit additional evidence on appeal. Additionally, as counsel 
correctly points out and as shown by evidence in the record, an RFE was issued in regards to the first 1-140 
petition for this case. 
As stated above, the AAO will look at the totality of the circumstances if the evidence warrants such 
consideration. In this case, because the petitioner is a non profit and tax-exempt entity, the AAO has turned 
to the record to determine whether evidence, aside from tax returns, shows that the petitioner has the ability to 
pay the proffered wage to the beneficiary as of the priority date and continuing until the beneficiary obtains 
lawful permanent residence. After carefully examining the petitioner's Form 941s from 1998 to 2002, its 
bank statements for some of the months from 1998 to 2003, a statement from Merrill Lynch for 2002, its 
deposit records from May 2003 to October 2003, and its balance sheets for June 2000 and June 2001, AAO 
finds that the evidence in the record has not established that the petitioner has the ability to pay the proffered 
wage for the entire period in question. Counsel cites to Sonegawa, but the facts in that case are distinct from 
the case at hand. The decision on that case was partly based on the petitioner's sound business reputation and 
outstanding reputation, and the petitioner in that case submitted other documentary evidence to show the ability to 
pay for the other years surrounding the year in question. Counsel also cites to Masonry Masters, but counsel's 
hypothesis that the petitioner would continue to grow and expand as a result of employing the beneficiary is not in 
and of itself sufficient to show ability to pay. 
After a review of the record, it is concluded that the petitioner has not established its ability to pay the salary 
offered as of the priority date of the petition and continuing until the beneficiary obtains lawful permanent 
residence. 
For the reasons discussed above, the assertions of counsel on appeal fail to overcome the decision of the 
director. 
The burden of proof in these proceedings rests solely with 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.