dismissed EB-3 Case: Retail

identifying data deleted to 
prevent clearly unwd 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: Office: TEXAS SERVICE CENTER Date: HAY 8 9 2006 
SRC-03-118-51912 
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. 9 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, $2 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal.' The appeal will be dismissed. 
The petitioner is a convenience storelservice station. It seeks to employ the beneficiary permanently in the 
United States as a retail store manager. As required by statute, the petition is accompanied by a Form ETA 
750, Application for Alien Employment Certification, approved by the Department of Labor. 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. The director denied the petition 
accordingly. 
On appeal, counsel submits a brief and additional e~idence.~ 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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 nature, for which qualified workers are not available in the United 
States. 
The regulation 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 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 petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 CFR 
$ 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Certification as certified by the U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Comm. 1977). 
1 
The petitioner filed an identical petition (SRC-05-086-51056) on behalf of the same beneficiary under the 
name of Sheam, Inc. (the same Federal employer identification number and the same address) with the Texas 
Service Center on February 2, 2005 while the instant appeal is pending with the AAO. 
2 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 4 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
Page 3 
Here, the Form ETA 750 was accepted on April 18, 2001. The proffered wage as stated on the Form ETA 
750 is $8.00 per hour or $14,560.00 per year.3 The Form ETA 750 states that the position requires four (4) 
years of experience in the job offered and the beneficiary will supervise one to three employees. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. 
According to the tax returns in the record, the petitioner's fiscal year is based on calendar year. On the 
petition, the petitioner claimed to have been established in 1999, to have gross annual income $1,903,186 and 
currently to employ 3 workers. On the Form ETA 750B, signed by the beneficiary on March 21, 2001, the 
beneficiary did not claim to have worked for the petitioner. 
With the petition, the petitioner submitted its Form 1120s U.S. Income Tax Return for an S Corporation for 
2001 pertinent to the ability to pay the proffered wage. 
On August 5, 2004, because the director deemed the evidence submitted insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, the director requested 
additional evidence (WE) pertinent to that ability. In accordance with 8 C.F.R. fj 204.5(g)(2), the director 
specifically requested that the petitioner provide copies of annual reports, federal tax returns, or audited 
financial statements to demonstrate its continuing ability to pay the proffered wage beginning on the priority 
date. The director specifically requested the petitioner's tax returns for 2002 and 2003 or annual reports or 
audited financial statements for 2002 and 2003, and all the Forms W-2 for the beneficiary. 
In response, the petitioner submitted its tax returns for 2002 and 2003. The director denied the petition on 
November 10, 2004, finding that it does not appear that any employees exist for the beneficiary to manage, 
and that the petitioner has failed to establish the ability to pay the proffered wage. 
On appeal, counsel asserts that the petitioner established its ability to pay the proffered wage in 2001 through 
2003 with its net income or net current  asset^.^ 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (CIS) will first examine whether the petitioner employed and paid 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, neither the petitioner nor the beneficiary 
claimed and submitted evidence that the petitioner employed and paid the beneficiary any compensation 
during the years in question. Therefore, the petitioner has not established that it paid the beneficiary the 
proffered wage in 200 1 through 2003. 
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. 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. Suva, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldrnan, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
3 
 Based on working 35 hours per week as indicated on Form ETA 750A. 
4 
 The petitioner also submitted a motion to reopenlreconsider but the director erroneously determined it to be 
a motion of the 485 denial and rejected it. 
Page 4 
Chang v. Thornburgh, 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 (N.D. 111. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's 
gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid 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 
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. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income figures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537 
The record contains copies of the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation for 
2001 through 2003. The tax returns in the record demonstrate the following financial information concerning 
the petitioner's ability to pay the proffered wages of $14,560 per year. 
In 2001, the Form 1120s stated net income5 of $1 8,092. 
In 2002, the Form 1120s stated net income of $26,597. 
In 2003, the Form 1120s stated net income of $22,772. 
The above information shows that for the years 2001 through 2003, the petitioner had sufficient net income to 
pay the proffered wage. Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. 
Department of Labor, the petitioner established that it had the continuing ability to pay the beneficiary the 
proffered wage as of the priority date through an examination of its net income. 
The portion of the director's decision that the petitioner has failed to establish the ability to pay the proffered 
wage is withdrawn. 
The second issue that needs to be discussed is whether the petitioner established 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. A labor certification is an integral part of ths petition, but the 
issuance of a Form ETA 750 does not mandate the approval of the relating petition. To be eligble for approval, a 
beneficiary must have all the education, training, and experience specified on the labor certification as of the 
5 
 Ordinary income (loss) from trade or business activities as reported on Line 21 of Form 1 120s. 
Page 5 
petition's priority date. 8 C.F.R. 5 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 
(Acting Reg. Comm. 1977); Matter of Katigbak, 14 I. & N. Dec. 45,49 (Reg. Comm. 1971). 
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 (Comm. 1986). See also, Mandany v. 
Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
Infra-Red Commissaiy ofMassachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
The certified Form ETA 750 in the instant case states that the position of retail store manager requires four (4) 
years of experience in the job offered, that the manager will report to the president of the company and supervise 
one to three (1-3) employees and perform duties as follows: 
To manage and direct business operations - scheduling of workers, purchasing of supplies and 
merchandise, malung and preparing deposits, ordering of gas loads, maintaining pumps, hoses 
and nozzles, customer relations, cashiering, stoclung, inventory, lotto, general bookkeeping and 
accounting. 
On the Form ETA 750B, the beneficiary set forth his work experience. He listed his experience as a full time 
gas station "Manager" at M/S Eastern Trading Corporation in Comilla, Bangladesh from February 1996 to 
August 1997 and at M/S M.A. Hakim & Sons in Comilla, Bangladesh from September 1997 to October 2000. 
In the meantime, the beneficiary provided his education information on Item 11 as follows: Payalgacha M.L. 
High School from January 1968 to December 1972 and Kabi Naml Govt. College from June 1972 to June 
1974. The record shows that the beneficiary was born in 1958. If the information provided by the beneficiary 
on ETA 750 was correct, he would have attended his high school at the ages from ten to fourteen and 
graduated from college at sixteen. The beneficiary did not explain the education system in his own country, 
nor did he explain how he could have managed to attend both high school and college during June 1972 
through December 1972. Although the proffered position does not specify educational requirements, these 
representations raise a question concerning the reliability of the beneficiary's statements about his working 
experience cited above. It is incumbent on the petitioner to resolve any inconsistencies in the record by 
independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 
591-592 (BIA 1988). 
The regulation at 8 C.F.R. $204.5(g)(l) states in pertinent part: 
Evidence relating to quali@ing experience or training shall be in the form of letter(s) from 
current or former employer(s) of trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
See also 8 C.F.R. $9 204.5(1)(3)(ii)(A) and (B). 
The instant 1-140 petition was submitted on March 18, 2003 with two letters concerning the beneficiary's 
qualification as required by the above regulation: a photocopy of a letter from Quamrul Islam, director of MIS 
Eastern Trading Corporation dated August 4, 2001 advising that the beneficiary was employed full time as a 
manager from February 1996 to August 1997 in their gas station in Comilla, Bangladesh; and the other from 
Page 6 
Managing Director of MIS. M.A. Hakim & Sons dated August 6, 2001 with original 
that the beneficiary was employed in their gas station as a full time manager from 
September 1997 to October 2000. 
As previously noted the certified ETA 750 indicates that the beneficiary will manage and direct the 
petitioner's business operations by supervising 1 to 3 employees. However, the petitioner did not submit any 
documents showing the petitioner employs one to three employees to be supervised by the beneficiary. The 
submitted tax returns show that the petitioner paid salaries and wages of $78,000 in 2001, but the petitioner 
did not indicate how many employees were working for it that year. The petitioner did not pay any salaries 
and wages in 2002 and 2003. There was no compensation of officers paid in the years 2001 through 2003. 
There is no evidence to support the petitioner's arguments that employee salaries were paid as retained 
earnings either. Therefore, the petitioner did not establish that there were one to three employees in 2001 
through 2003 to be supervised by the beneficiary. Furthermore, the petitioner failed to establish that the 
position of retail store manager with supervision of one to three employees existed at the time of filing the 
labor certification application, and the job offer continues to be a realistic one in 2002 through 2003. Counsel 
claims on appeal that: "[tlhere are at least three full-time workers on three shifts at this busy, profitable and 
continuously operating gas station/convenience store." Counsel also said, "the petitioning corporation is a 
family run and owned business. Three family members have been working the business and choose whether 
to take salary or not." However, counsel does not submit any evidence to support his assertion. The 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
 Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
. - . , 
In fact, contrary to counsel assertion, the tax retu 
 submitted with 
appeal shows that the business is 50% owned b 
-1 affidavit also indicated that they decided "to hire a Manager so that [he] could 
devote more of [his] time to [his] seven other investments and business ventures and not be 'stuck' in this 
business." Supposing that there are three members of the famil -owner working for the business in three 
shifts, and the beneficiary would be scheduled to replacefor the 1 lpm-7am shift as delineated on 
the Form ETA 750, the affidavit does not explain how the beneficiary would supervise the other two family 
members (one of them is 50% owner) in other shifts while he is working for the 11-7 shift. The affidavit does 
not provide any independent objective evidence that at least one non-owner family member works for the 
business without any compensation or dividends. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence submitted by the petitioner that 
demonstrates that the job offer was not realistic at the time filing and continue to be unrealistic to the present. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 
1361. The petitioner has not met that burden. 
ORDER: 
 The appeal is dismissed. The petition remains denied.