remanded EB-3 Case: Healthcare

ideutiIJingdata deleted to
preventdearly unwarranted
iul'8Sion or personal privacy
PUBLICCOpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3000
Washington,DC 20529
us, Citizenship
and Immigration
Services ~ b,
FILE: WAC 05 149 53671 Office: CALIFORNIA SERVICE CENTER Date: SEP 2 6 2U06
INRE:
PETITION:
Petitioner:
Beneficiary:
Immigrant Petition for Other Worker Pursuant to § 203(b)(3) of the Immigration and
Nationality Act, 8 U.S.C. 1153(b)(3)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
SELF-REPRESENTED
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscls.gov
WAC 05 149 53671
Page 2
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded for further
consideration.
The petitioner is a residential care home. They seek to employ the beneficiary permanently in the United
States as a live-in nurse assistant. 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 met the experience requirements of the
labor certification as of the priority date of the visa petition and 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 this decision. Further
elaboration of the procedural history will be made only as necessary ..
As set forth in the director's January 14, 2006 denial, the single issue in this case is whether or not the petitioner
established that the beneficiary met the experience requirements of the labor certification as of the priority date of
the visa petition.
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(iii),
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 unskilled labor, 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. § 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.
(D) Other workers. If the petition is for an unskilled (other) worker, it must be accompanied by
evidence that the alien meets any educational, training and experience, and other requirements of
the labor certification.
To be eligible 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, 16I&N 158 (Act. Reg. Comm. 1977). In this
case, that date is January 20, 1998.
The approved alien labor certification, HOffer 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,
WAC 05 149 53671
Page 3
training, and experience requirements for applicants" In this case, Block 14 requires that the beneficiary have
three months of experience in the job offered .. Block 15·requires that if the beneficiary is hired, he "must speak,
read and write English; must obtain First Aid, CPR, Health Screening Report issued by the State of California
Health and Welfare Agency; must be willing to be fingerprinted to be submitted to the Department of Justice;
must have legal right to work; live on premises; must be available on call 24 hours per day. The employer will
compensate in accordance with the CA State law and regulations."
Based on the information set forth above, it can be concluded that an applicant for the petitioner's position of
nurse assistant must have three months of experience as a nurse assistant; must speak, read, and write English;
must obtain First Aid, CPR, Health Screening Report; must be willing to be fingerprinted; must have a legal right
to work; must live on premises; and must be available on call 24 hours per day.
In the instant case, the petitioner submitted a letter, dated April 1, 2002, from Norma Solidum of Solidum
Care Home #7, stating that she employed the beneficiary from November 1997 to January 1998
(approximately two months) as a household domestic worker/care iver/uncertified nurse assistant. The
petitioner also submitted a sworn affidavit from at he
had knowledge that the beneficiary was employe y from
April 1993 to August 1996. stated tha e re erre e enenciary 0 In
response to a request for evidence, the petitioner submitted a letter, dated December 22, 2005, stating that she
has employed the beneficiary from January 1988 1 to the present as a caregiver. The director denied the
petition noting that the petitioner's letter describing the beneficiary's duties was vague, and the director was
unable to determine if the beneficiary has the experience required to perform the duties required by the labor
certification.'
On appeal, the petitioner provides copies of the beneficiary's First Aid and Adult CPR certifications, dated
November 26, 1997, August 9, 1999, June 7, 2001, May 29, 2003, and May 18, 2005. The petitioner also
submitted a copy of the beneficiary's Health Screening Report, dated December 3, 1997, a copy of the
benef~ther copy of the job verificationfrom NormaSolidum, another copyof the affidavit
from and a new job description of the beneficiary's duties. The new job description
contained the same requirements as those of the labor certification.
Since the petitioner did not begin to employ the beneficiary until five days before the priority date of January 20,
1998, the beneficiary would appear to still be approximately a month short of the three-month experience
~nt of the labor certification" However, the director did not consider the sworn affidavit of _
_ As the director gave no reason to doubt the veracity of the affidavit nor did he require add~
as the duties performed by the beneficiary were similar to those of the labor certification; as the beneficiary has
the required First Aid, CPR, Health Screening, and fingerprints; and as the beneficiary's employment with
Cammarata Guest House was for a period of more than three years, the AAO can only conclude that the petitioner
has established that the beneficiary met the experience requirements of the labor certification at the time of the
priority date.
1 It is noted that all other evidence in the record indicates the petitioner began employing the beneficiary in
1998. It is assumed that the petitioner made a simple clerical mistake when typing 1988.
2 Although the petitioner's statement of the beneficiary's current job description may have been vague, the
petitioner did not begin to employ the beneficiary until January 15, 1998, only five days before the priority
date of January 20, 1998. The additional five days of employment would not have significantly added to the
experience required by the labor certification.
WAC 05 149 53671
Page 4
Beyond the decision of the director, another issue in this proceeding is whether the petitioner has established its
ability to pay the proffered wage from the priority date and continuing to the present.
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part:
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 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 [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 January
20,1998. The proffered wage as stated on the Form ETA 750 is $1,584.27 per month or $19,011.24 annually.
Relevant evidence submitted in response to a request for evidence from the director includes copies of the
etitioner's 2000 through 2004 Schedule Cs, Profit or Loss From Business, for the address
copies of the owner's personal assets, a list of the petitioner's mont ,
t e etitioner's 2005 first three uarters) Forms 941, Employer's Quarterly Federal Tax Returns, for P.o. Box
and a copy of an Application For License, Permit or Certification, for
I The record does not contain any other
The petitioner's 2000 through 2004 Forms 1040, Schedule Cs, also reflect net incomes from business as $98,554,
$56,795, $51,987, $89,052 and $110,311, respectively.
The petitioner's personal assets include savings of $100,000, life insurance cash value of $500,000, and real
estate valued at $3,020,000.
The petitioner's monthly expenses were listed as $20,832, including food, cable, gas, phone, and internet at
the care home, or yearly expenses of $249,984.
The petitioner's 2005 Forms 941 reflect wages paid of $44,947.15 in the first quarter, $43,418 in the second
quarter, and $42,812 in the third quarter.
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
3 It is noted that ETA 750 requires the beneficiary to work at 8516 Edgefield Way, Stockton, CA 95209.
WAC 05 149 53671
Page 5
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 ajob offer is realistic.
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comma 1977). See also 8 C.F.R. § 204.5(g)(2). In
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate fmancial 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. Comma 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 win 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 12, 1998, the beneficiary claims to
have been employed by the petitioner since January 15, 1998. However, counsel has not provided any Forms
W-2, Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, issued by the petitioner for the
beneficiary indicating that the petitioner employed the beneficiary from 1998 to the present. In an unsworn
affidavit, the petitioner states that the beneficiary is currently being compensated at a rate of $1,456.00 per
month. The declaration provided is not an affidavit as it was not sworn to or affirmed by the declarant before
an officer authorized to administer oaths or affirmations, who has, having confirmed the declarant's identity,
administered the requisite oath or affirmation. See Black's Law Dictionary 58 (7th Ed., West 1999). Nor, in
lieu of having been signed before an officer authorized to administer oaths or affirmations, does it contain the
requisite statement, permitted by Federal law, that the signer, in signing the statement, certifies the truth of the
statement, under penalty of perjury. 28 U.S.C. § 1746. Such an unsworn statement made in support of a
petition is not evidence and thus, is not entitled to any evidentiary weight. See INS V. Phinpathya, 464 U.S.
183,188-89 n.6 (1984); Matter ofRamirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).
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. 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, 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. SUppa 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983).
The petitioner is a sole proprietorship, a business in which one person operates the business in his or her
personal capacity. Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a corporation, a sole proprietorship
does not exist as an entity apart from the individual owner. See Matter of United Investment Group, 19 I&N
Dec. 248, 250 (Comm. 1984). Therefore the sole proprietor's adjusted gross income, assets and personal
liabilities are also considered as part of the petitioner's ability to pay. Sole proprietors report income and
expenses from their businesses on their individual (Form 1040) federal tax return each year .. The business­
related income and expenses are reported on Schedule C and are carried forward to the first page of the tax
return. Sole proprietors must show that they can cover their existing business expenses as well as pay the
proffered wage out of their adjusted gross income or other available funds. In addition, sole proprietors must
show that they can sustain themselves and their dependents .. Ubeda v. Palmer, 539 F. SUppa 647 (N.D. IlL
1982), aff'd, 703 F.2d 571 (7 th Cir. 1983).
WAC 05 149 53671
Page 6
In Ubeda, he court concluded that it was highly unlikely that a petitioning entity
structured as a sole proprietorship could support himself, his spouse and five dependents on a gross income of
slightly more than $20,000 where the beneficiary's proposed salary was $6,000 or approximately thirty
percent (30% ) of the petitioner's gross income.
In the instant case, the petitioner has only provided its Schedule Cs for an entity at ot
the petitioner. The owner's complete Forms 1040 were not provided. Also, the list of monthly expenses
submitted by the petitioner includes the expenses of at least one of the owner's facilities. Furthermore, the
owner's personal assets include real estate, which will not be considered as evidence of the petitioner's ability
to pay the proffered wage. Property is considered to be a long-term asset (having a life longer than one year)
and is not considered to be readily available to pay the proffered wage to the beneficiary. The regulation at 8
C.F.R. § 204.5(g)(2) clearly indicates what the basic evidentiary standard is to . determine the ability to pay.
There is nothing to indicate that the three basic evidentiary forms outlined in the regulation, e.g., federal tax
forms, annual reports, and audited financial statements, are to become secondary or tangential evidence.
Rather, the regulations clearly state that in "appropriate cases" CIS might request or a petitioner might submit
additional evidence such as bank accounts, profit/loss statements, or personnel records. What is required is
verifiable evidence that supports the entire record.
The director must afford the petitioner reasonable time to provide evidence pertinent to the issue of the
owner's household expenses, to provide verifiable evidence of its current assets and liabilities, to provide the
petitioner's complete Forms 1040 ifit is a sole proprietorship, or other complete tax forms if the petitioner is
not a sole proprietorship, to provide evidence of additional resources with which to pay the proffered wage
such as bank accounts, CDs, etc., to show proof of the wages paid to the beneficiary, and any other evidence
the director may deem necessary. The director shall then render a new decision based on the evidence of
record as it relates to the regulatory requirements for eligibility. As always, the burden of proving eligibility
for the benefit sought remains entirely with the petitioner. Section 291of the Act, 8 U.S.C. § 1361.
ORDER: The director's January 14, 2006 decision is withdrawn. The petition is remanded to the director
for entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for
review.