dismissed EB-3 Case: Retail Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
PU'mIC copy 
 Q%m4, 
@ 
U.S. Citizenship 
IBenti&ing data deleted t6 
 and Immigration 
scG Services 
prevent deariy unwarranted 
invasion of personal privacy 
Office: TEXAS SERVICE CENTER 
 Date: AUG 0 
 'Oo7 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b) 
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, Chief U 
Administrative Appeals Office 
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 store and gas station. It seeks to employ the beneficiary permanently in the 
United States as a retail store manager. 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 the beneficiary possessed the experience requirements 
of the labor certification. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. 
The procedural history in this case is documented by the record and incorporated into ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original August 3,2006 denial, the issue in this case is whether or not the petitioner 
has the beneficiary meets the experience requirements of the labor certification. 
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 or seasonal nature, for which qualified workers are not available in 
the United States. 
The regulation at 8 C.F.R. 9 204.5(1)(3) states, in pertinent part: 
(ii) Other documentation - (A) General. Any requirements of training or experience for 
skilled workers, professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and a description of 
the training received or the experience of the alien. 
(B) Skilled workers. If the petition is for a skilled worker, the petition must be accompanied 
by evidence that the alien meets the educational, training or experience, and any other 
requirements of the individual labor certification, meets the requirements for Schedule A 
designation, or meets the requirements for the Labor Market Information Pilot Program 
occupational designation. The minimum requirements for this classification are at least two 
years of training or experience. 
To be eligble for approval, a beneficiary must have the education and experience specified on the labor 
certification as of the petition's filing date. The filing date of the petition is the initial receipt in the Department of 
Labor's employment service system. Matter of Wing's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). In this 
case, that date is March 16,2001. 
Citizenship and Immigration Services (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. 
40 1,406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R. K. Irvine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F.2d 1 (1st Cir. 1981). 
The approved alien labor certification, "Offer of Employment," (Form ETA-750 Part A) describes the terms and 
conditions of the job offered. Block 14 and Block 15, which should be read as a whole, set forth the educational, 
training, and experience requirements for applicants. In ths case, Block 14 requires that the beneficiary must 
possess two years experience in the job offered or two years experience in the related occupation of retail 
management. Block 1 5 states additional requirements as being Wed. - Sun. 4 p.m. - 12 midnight. 
Based on the information set forth above, it can be concluded that an applicant for the petitioner's position of 
retail sales manager must have two years of experience in the job offered or two years experience in the related 
occupation of retail management with the hours of employment being Wednesday through Saturday at 4 p.m. to 
12 a.m. 
In the instant case, counsel initially failed to submit any evidence of the beneficiary's experience. On June 
23, 2006, the director issued a notice of intent to deny (NOID) requesting that the petitioner submit the 
original Form ETA-750 or Form ETA-9089 labor certification and to provide persuasive documentary 
evidence of the beneficiary's experience in the job being offered. Counsel was informed that: 
evidence of this experience should be in the form of letters from current or former employers 
listing the beneficiary's exact dates of employment and a detailed description of the duties 
performed in that position. If the letter of experience is to come from the current employer, 
please provide a copy of the beneficiary's Form 1-9 (Sections 1, 2, and 3) or most current 
Form W-2 with the letter of experience. 
On July 24, 2006, counsel submitted the original labor certification 
 by the Department 
of Labor (DOL) on June 29, 2005, with a letter of experience from 
 , dated July 10, 2006. 
The letter of experience states: 
This is to certify that [the beneficiary] was employed by our company as a manager from 
March 1994 to August 1996, and he worked 40 hours per week. 
He was responsible to supervise and coordinate activities of our convenience store and gas 
station. He determined sequence of work to be scheduled to provide quick and efficient 
service to customers and to regulate workload. He reconciled daily cash with sales receipts 
and made daily bank deposits. He ordered and maintained inventory. He maintained records 
of underground petroleum storage tanks in accordance with state and federal environment 
laws. He was responsible for bank deposits. 
He is a very diligent, hardworking employee. I highly recommend him for employment 
anywhere. 
Store was not listed on the orignal Form ETA-750. 
1 
It is noted that on the ETA-750B, Part 15, Work Experience, that requires the beneficiary to "list all jobs held 
during the last three (3) years. Also, list any other jobs related to the; occupation for which the alien is seehng 
certification as indicated in item 9," the beneficiary listed under penalty of perjury as having been employed by 
the as a manager from June 2001 through the present, as 
having been unem~loved fi-om A~ril200 
:. through May 2001, and as having been employed by 
as a manager from February 1996 through March 2 
The director denied the visa petition on August 3, 2006 stating that "the experience in this proceeding was not 
disclosed to DOL during the labor certification, and the labor certification was not predicated on such 
experience." 
On appeal. counsel submits another Part 15 for the ETA-750, dated September 26, 2006, listing 
and stating that the beneficiary was employed by 
Cheris Food Mart trom March lYY4 to Aumst 1996. Counsel also submits an experience letter, dated August 
beneficiary as a manager from February 1996 through March 200 1. Counsel states: 
In the instant case the alien qualifies in two respects (a) He has worked for at least 2 years in 
the job offered and (b) He has also worked in a retail management position as a manager for 
at least 2 years as well. 
The petitioner attached the alien's work experience in the job offered - namely Cheris Food 
Store as proof of the alien's work experience. This in itself should be sufficient to qualify the 
alien as having the requisite experience and therefore enough to approve the application. 
The petitioner is also supplementing the record by (i) attaching a second letter from the retail 
management experience which is the second way in which the alien qualifies for this position 
as well. Moreover should there be further need, the Petitioner has also attached a supplement 
to ETA 750B listing the experience at the Food Store as well. 
Counsel is correct in part. The AAO takes a de novo look at issues raised in the denial of hs petition. See Dor 
v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The 
AAO considers all perhnent evidence in the record, including new evidence properly submitted upon appeal.2 
Therefore, the AAO will consider the letter provided on appeal from Popular Cleaners. However, the AAO will 
not consider the supplemental ETA-750B as it was not provided to DOL before the labor cerhfication was 
approved by DOL. Absent persuasive supporhng evidence, the letter from Cheris Food Store does not support 
the petitioner's burden of proving the beneficiary's qualifications. The labor certification required information 
including jobs related to the proffered position. If the beneficiary's alleged experience at Cheris Food was 
relevant to qualifying him for the proffered position, such representation should have been made on the labor 
certification. Omitting experience that forms the primary basis for alleging qualification appears disingenuous 
especially to claim it after DOL's certification. 
In addition, while it appears that the petitioner has established that the beneficiary met the experience 
requirements of the labor certification with the letter fiom Popular Cleaners (employment fi-om February 1996 
through March 2001 or five years and one month), there is an inconsistency in the record that would need to be 
addressed before adjudication of the visa petition can be completed. The inconsistency consists of the 
overlapping of emp16yrnent. On the amended ETA-750B, the beneficiary claims to have been employed by 
from March 1994 through August 1996, and, on the original ETA-750B, he 
claims to have been employed by Popular Cleaners from February 1996 through 2001. Both ETA-750B's state 
that the beneficiary was employed for 40 hours per week.  heref fire, from ~ebkry 1996 through August 1996, 
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. tj 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). 
Page 5 
the beneficiary would have worked 80 hour weeks, 40 hours in Houston, Texas and 40 hours in Pasadena, Texas. 
While this is certainly not impossible, the AAO is not convinced that the beneficiary could sustain such time 
demanding employment for a full six months. It would mean that the beneficiary worked 16-hour days with a 
37.5 mile commute between each business.) Clarification of tlus double employment with appropriate evidence 
would be needed to contmue adjudication of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988) 
states: 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
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. 
Beyond the decision of the director, another issue that must be determined is whether the petitioner has 
established its continuing ability to pay the proffered wage from the priority date of March 16,2001. 
The regulation at 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. 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 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 CFR $ 204.5(d). The priority date in the instant petition is March 
16,2001. The proffered wage as stated on the Form ETA 750 is $2,950 per month or $35,400 annually. 
Relevant evidence submitted as proof of the petitioner's ability to pay the proffered wage of $35,400 includes a 
copy of a 2001 Form 1120, U.S. Corporation Income Tax Return, for copies of the 
3 
 It is noted that verifiable evidence such as Forms W-2, Wage and Tax Statements, or Forms 1099-MISC, 
Miscellaneous Income, was not provided for either Popular Cleaners or Cheris Food Mart that corroborates the 
beneficiary's 80-hour work weeks. 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 
(Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Page 6 
petitioner's 2002 through 2004 Forms 1120, a copy of a Texas Franchise Tax Public Information Report, and 
copies of the petitioner's 2002 through 2004 unaudited financial  statement^.^ The record does not contain any 
other evidence relevant to the petitioner's ability to pay the proffered wage. 
The copy of the 2001 Form 1120 for the reflects a taxable income before net 
o~eratine loss deduction and s~ecial deductions or net income of -$7,128 and net current assets of $35,219. 
mile the Texas Franchise Public Information Report shows the Corporation's princip 
The Employer Identification Number (EIN) is 
Corporation's date of incorporation was April 27, 1998. 
The petitioner's 2002 through 2004 Forms 1120 reflect taxable incomes before net operating loss deduction 
and special deductions or net incomes of -$3,308, $3,029, and $6,932, respectively. The petitioner's 2002 
through 2004 Forms 1120 also reflect net current assets of $37,692, $45,721, and $47,655, respectively. The 
petitioner's EIN number is and it was incorporated on January 9,2002. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor cerhfication 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. Comm. 1977). See also 8 C.F.R. 8 204.5(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. Cornrn. 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 consideredprima 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 October 24, 2002, the beneficiary does not 
claim the petitioner as a present or former employer. In addition, counsel has not submitted any Forms W-2, 
Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, issued by the petitioner for the 
beneficiary to establish that the petitioner employed the beneficiary in any of the pertinent years (2001 to the 
present). Therefore, the petitioner has not established that it employed the petitioner in 200 1 through 2004. 
As an alternative 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, without 
consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for 
4 
 Counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.F.R. 5 204.5(g)(2) makes 
clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, 
those financial statements must be audited. As there is no accountant's report accompanying these statements, the 
AAO cannot conclude that they are audited statements. Unaudited financial 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. Therefore, the unaudited financial statements will not be 
considered when determining the petitioner's ability to pay the proffered wage of $35,400. 
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 (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 57 1 (7' Cir. 1983). In K. C. P. Food Co., Inc., the court held that 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 
CIS should have considered income before expenses were paid rather than net income. Finally, there is no 
precedent that would allow the petitioner to "add back to net cash the depreciation expense charged for the year." 
See also Elatos Restaurant Corp., 632 F. Supp. at 1054. Chi-Feng Chang Wher 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 5 37. 
 # 
For a "C" corporation, CIS considers net income to be the figure shown on line 28 of the petitioner's Form 1120, 
U.S. Corporation Income Tax Return. The petitioner's tax returns demonstrate that its net incomes in 2002 
through 2004 were -$3,308, $3,029, and $6,932, respectively. The petitioner could not have paid the proffered 
net incomes in 2002 through 2004. In addition, the 2001 Form 1120 tax returns for 
demonstrate that its net income in 2001 was -$7,128. The 
wage of $35,400 from its net income in 2001. 
corporation is a separate and distinct legal entity from its owners and shareholders, the assets of its 
shareholders or of other enterprises or corporations cannot be considered in determining the petitioning 
corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 
(Comm. 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18,2003) 
stated, "nothing in the governing regulation, 8 C.F.R. 5 204.5, permits [CIS] to consider the financial 
resources of individuals or entities who have no legal obligation to vav the wage." Therefore. the 2001 tax 
u u 1 d u 
returns for 
 ill not be considered when determining the petitioner's continuing 
ability to pay the proffered wage of $35,400 from the priority date of March 16,2001. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. If the net income the petitioner demonstrates it had available during that 
period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of 
the proffered wage or more, CIS will review the petitioner's assets. The petitioner's total assets include 
depreciable assets that the petitioner uses in its business. Those depreciable assets will not be converted to 
cash during the ordinary course of business and will not, therefore, become funds available to pay the 
proffered wage. Further, the petitioner's total assets must be balanced by the petitioner's liabilities. 
Otherwise, they cannot properly be considered in the determination of the petitioner's ability to pay the 
proffered wage. Rather, CIS will consider net current assets as an alternative method of demonstrating the 
ability to pay the proffered wage. 
Page 8 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal to or 
greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net 
current assets. The petitioner's net current assets in 2002 through 2004 were $37,692, $45,721, and $47,655, 
respectively. The petitioner could have paid the proffered wage of $35,400 in 2002 through 2004 from its net 
current assets. However, the petitioner has not established its ability to pay the proffered wage of $35,400 in 
2001 as CIS will not accept the tax returns of another corporation as evidence of the petitioner's ability to 
pay. Again, see Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Cornrn. 1980) and Sitar v. Ashcroft, 
2003 WL 22203713 (D.Mass. Sept. 18,2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
5 
 According to Barron 's Dictionary of Accounting Terms 1 17 (3rd ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18.