remanded EB-3 Case: Healthcare

I&n~~ data deleted to 
prevent dearly unwarranted 
invadtm of ped 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
BI 
PETITION: 
 Immigrant petition for Alien Worker as an Other Worker, pursuant to section 203(b)(3)(iii) of 
the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3)(iii) 
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. 
Administrative Appeals Office 
DISCUSSION: The service center director denied the employment-based visa petition, and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded. 
The petitioner is a skilled nursing convalescent hospital. It seeks to employ the beneficiary permanently in 
the United States as a nursing 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 it was the true employer of the beneficiary or that the 
petitioner had a fulltime position available for the beneficiary. The director denied the petition accordingly. 
On appeal, counsel states that the petitioner is the direct employer of the beneficiary and that no third party is 
now involved in the employment of the beneficiary. Counsel submits further documentation. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 unslulled 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. 9 204.5(1)(3) also provides 
(ii) Other documentation-- 
(D) Other Worker. If the petitioner 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. 
The regulation at 8 C.F.R. 5 204.5(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, 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 
 204.5(d). Here, the Form ETA 750 was accepted for processing on 
March 26, 2001. The proffered wage as stated on the Form ETA 750 is a monthly salary of $1,625.87, or an 
annual salary of $193 10.44. On the Form ETA 750B, signed by the beneficiary, the beneficiary did not claim 
to have worked for the petitioner. 
On the petition, the petitioner claimed to have been established in 1984, to have 136 employees, and a gross 
annual income of $6.8 million. In support of the petition, the petitioner submitted IRS Form 1120S, the 
Page 3 
ears 2000,2001. and 2002. These documents named = 
as the business submitting the tax returns, and indicated the 
petitioner had ordinary income of $605,044, $891,017, and $658,814 in the respective tax years. 
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, on July 2, 2004, the director requested 
additional evidence pertinent to that ability. The director noted that the petitioner had submitted multiple I- 
140 petitions, most of which were pending. The director stated that the petitioner had to establish that it had 
the ability to pay the proffered wages of all the beneficiaries, including the beneficiary on the instant petition. 
The director requested a detailed list naming all beneficiaries with approved andfor pending 1-140 petitions. 
The director also requested the petitioner provide copies of annual reports, federal tax returns, or audited 
financial statements to demonstrate its continuing ability to pay the proffered wage as of March 26, 2001, the 
priority date of the Form ETA 750, and to the present. The director specifically requested that the petitioner 
submit its 2003 federal income tax return. The director also noted that the petitioner could submit a statement 
from a financial officer if the petitioner had one hundred or more employees, but also noted that the 
submission of such a document did not preclude Citizenship and Immigration Services (CIS) from requesting 
additional evidence of its ability to pay the proffered wage. 
The director also requested clarification as to whether the beneficiary was currently employed with the 
petitioner; copies of the petitioner's current valid business licenses for city, country, state and federal 
government; clarification of the beneficiary's current address; and evidence that the beneficiary possessed the 
requisite four years of high school education and the requisite work experience stipulated in the Form ETA 
750. With regard to work experience, the director noted that the one year of work experience had to be earned 
before the priority date of March 26,2001. 
In response, the petitioner submitted its 2003 IRS Form 1120s that indicated ordinary income of $748,205. 
The petitioner also submitted a city of San Jose Business Tax Certificate with expiration date of December 
3 1, 2004; a state of California Department of Health Services license with ex iration of February 27, 2005; a 
fictitious business name statement for the petitioner that indicated as doing business as 
a brochure for D a W-2 Wage and Tax 
statement for tax year 2003; and California EDD Form DE-6 Quarterly Wage and Withholding Reports for 
$3,118,962.91 in wages and salaries in tax year 2003, and the Form DE-6 
had paid $914,451.76 in wages during the first quarter of tax year 2003. 
48 beneficiaries of 1-140 petitions submitted between 2002 and 2004, of which 25 petitions were still pending 
with CIS. According to this document, CIS had approved 22 petitions of the 48 identified petitions and 
beneficiaries. 
With regard to the beneficiary's qualifications and proffered position, the petitioner submitted a letter entitled 
Offer of Employment Certification. This letter indicated that a permanent fulltime position was available for 
the beneficiary as of September 14, 2004. The petitioner also submitted correspondence received by the 
beneficiary with regard to her actual address in Hawthorne, California, dated January 23, 2004. The petitioner 
Page 4 
submitted a letter fro- Initao, Philippines that stated the beneficiary graduated from 
high school on March 30, 1963. Finally the petitioner submitted two letters of work verification; one from the 
beneficiary's former employer dated July 23, 2004, documenting ten years of nursing assistance, and the 
second letter dated August 16,2004, from the beneficiary's actual employer describing her current job duties. 
On December 29, 2005, the director issued a Notice of Intent to Deny (NOID) the instant petition. The 
director noted that the petitioner had submitted over 50 1-140 petitions from 2002 to the present, and that 22 
petitions had been approved. The director asked the petitioner to submit evidence of its ability to pay the 
beneficiary and all other pending applications as of the priority date to the present. The director also asked the 
petitioner to submit evidence to explain why the petitioner had not employed any of the pending applicants or 
approved applicants since the thlrd quarter of 2004, and requested an explanation of why the petitioner had 
not employed anyone since the end of the fourth quarter of 2004. The director stated that although the 
petitioner indicated that the beneficiary would be employed in a permanent, full-time position, the 
documentation submitted with the petition indicated that the beneficiary would not be employed in a 
permanent, full-time position. 
The director stated that the Employment Development Department (EDD) record' did not show any of the 
petitioner's previously approved 1-140 beneficiaries working for the petitioner, although CIS records 
indicated that these applicants had current and approved CIS Employment Authorization Documents (EADs). 
The director stated that this lack of employment records would lead a reasonable person to believe that no 
jobs exist for pending or previously approved beneficiaries. The director then stated that the beneficiary had a 
current and approved EAD; however, the submitted EDD documents did not show that the beneficiary has 
worked for the petitioner. The director requested the petitioner to submit evidence to confirm that the 
employment offer for the beneficiary is still valid and that a permanent full time job exists for the 
beneficiaries of approved and pending petitions. The director also noted that the beneficiary lived in Laguna 
Woods, California. The director requested that the petitioner submit documentation to explain why the 
beneficiary was willing to move 300 miles to work for the petitioner earning $9.37 an hour. The director 
requested that the petitioner provide evidence of the beneficiary's current employment. 
In res onse the petitioner's president, submitted a letter dated January 25, 2006. In her letter 
Mrs stated that the petitioner had submitted its income tax returns for tax years 2001 to 2003 to 
support the petitioner's ability to pay the prevailing for all the approved 1-140 petitions and pending 
application from the priority date to the present. Mrs also stated that the petitioner had outsourced with 
Mainstay Business Solutions (Mainstay) to handle the petitioner's payroll services, payroll taxes 
reporting, and insurance compliance. ~rs submitted a letter 
 5, 2006 fro 
Human Resources Manager, Mainstay, Irvine, California. Mrs. 
 so stated that 
a printout from Mainstay's website that explains its role. 
 also submitted DE 6 
1 
 It is not clear whether the director referred to the EDD records submitted by the 
 prior 
to tax year 2004, namely Forms DE-6, or to the DE-166 submitted by Mainstay 
None bf these documents provides any names of employees, but rather iota1 wages id numbers of 
employees. 
2 
 No such document is found in the materials submitted in response to the director's NOID. The record does 
contain a two-page computer printout for what appears to be state wages for the first quarter of 2001 in the 
Forms to the record submitted by Aquinas C 
 'on for the first three quarters of 2001, for all four quarters 
of 2002, and all four quarters of 2003. Mrs 
 also submitted an EDD magnetic media-submittal sheet, 
Form DE-166, in which Mainstay indicated it paid $36,328,839.48 in wages for the third quarter of 2005. 
~rs. stated that the beneficia 
 was not working for the petitioner but that a full time permanent 
position exists and is still valid. Mr also submitted a letter entitled Offer of Employment Certification 
dated January 25, 2006 that stated the petitioner is offering the beneficiary a permanent full-time osition as 
nursing assistant. ~rsalso submitted a letter dated January 25, 2006, fro 
stated the beneficiary has been taking care of his mother, 
who 
ince eptem er 5 until the 
present time. 
In her letter, Ms. 
 stated that the petitioner has an employment relationship with Mainstay and that 
Mainstay is a federally recognized tribal enterprise that specializes in providing outsourced employment 
services to employers looking to outsource their non-revenue generating functions to a service provider. Ms. 
m 
stated that the petitioner has contracted with Mainstay to handle payroll, workers' compensation, 
oss con rol, and a host of other employment-related services. Ms 
1 
stated that the Mainstay pays the 
petitioner's employees, and bills the petitioner for the gross wages, emp oyer taxes, and related insurance. Ms. 
hen stated the payroll taxes are withheld and paid under Mainstay's Federal Employer Tax ID 
number, thus relieving the petitioner of that task and liability. 
On April 15, 2006, the director denied the petition. In his decision, the director stated that ~rs.n her 
letter received January 3 1, 2006 stated the petitioner employed the beneficiary.' The director also stated that, 
according to public  record^,^ Mainstay is a staffing agency. The director stated that Mainstay would handle 
matters such as payroll, worker's compensation, insurance, health insurance, and retirement. The director 
stated that the petitioner's assertions that the beneficiary would be working as a nursing assistant conflicted 
with the record with relation to employee/employer status. The director states that the "discl~sure"~ submitted 
into evidence clearly showed that Mainstay Business Solutions controlled the beneficiary and although the 
beneficiary's end employer is said to be the petitioner, and the petitioner stated that they were able to fire the 
beneficiary, Mainstay still has the control and ability to reassign the beneficiary to another location or to other 
end users. 
The director again stated that Mainstay Business Solutions is a temporary staffing agency and that direct 
employment and the intent to hire and control the beneficiary's employment and new hire reporting is with 
the staffing agency, and not with the petitioner. The director noted a letter submitted into evidence by the 
petitioner on October 1, 2004,~ and states this letter makes it clear that the petitioner has no intent to control 
employment or hire the beneficiary directly. The director further stated that although the petitioner stated the 
amount of $763,252.66. The provenance of this document is unknown. 
3 
 As stated previously, Mrs the petitioner's president, did not state the petitioner was employing the 
beneficiary, but rather that the fulltime position was still available and valid. 
4 
 The director did not identify the public records from which he had obtained information with regard to 
Mainstay. 
The record is not clear as to which disclosure the director refers. 
This letter is not found in the record. 
Page 6 
beneficiary worked at the petitioner's location,' the 1-140 petition is a misrepresentation of the beneficiary's 
true employer, or acting agent. The director also noted that CIS could find no evidence of the petitioner 
directly employing anyone from the 4th quarter of 2004 to the present. 
The director then stated that the petitioner submitted a contract of an employment agreement between itself 
and Mainstay Business ~olutions.~ The director noted that the contract stated that Mainstay Business 
Solutions is considered the "legal employer" of the beneficiary, and that any hiring and firing of the 
beneficiary is the responsibility of the staffing agency. The director stated that the evidence submitted into 
record established that the true employer of the beneficiary is Mainstay Business Solutions. The director then 
further stated that the documentation indicates that the beneficiary would not be employed in a permanent, 
full-time position. 
The director also noted that CIS had requested documentation to support the beneficiary's intent to leave an 
existing job and move over 300 miles for a job that pays approximately $9.37 an hour. The director stated that 
the beneficiary who is now almost 60 has at no time lived near or in the San Jose area and that she has lived in 
the Los Angeles area since 1996. The director stated that no convincing evidence was submitted the 
beneficiary's intent to pursing the San Jose position, or the petitioner's intent in offering the employment. 
The director then cited Section 212(a)(6)(c)(i) of the Act concerning fraud and misrepresentation and the 
effect of such acts on the admissibility of aliens. The director also cited Matter of Estime, 19 I&N Dec. 450 
(BIA 1986, with regard to revocation of approved visa petitions. 
On appeal, newly hired counsel states the issues addressed in the director's intent to deny the instant petition 
include the petitioner's ability to pay the proffered wage; the intent to employ the beneficiary due to 
previously approved 1-140 petitions; and the intent of the beneficiary in seelung employment with the 
petitioner. Counsel notes that the petitioner has expanded with another facility in Bakersfield, California, and 
the need for nursing assistants, including the beneficiary, has become imperative. Counsel states that the 
petitioner is the bona fide employer of the beneficiary with ability to hire, fire and discipline employees, 
including the beneficiary. Counsel states that Mainstay is an employment agency that acted as the petitioner's 
"alter ego", and then asserts that the relationship between the petitioner and Mainstay has been terminated. 
Counsel submits a copy of a fax from ~rs the petitioner's president, dated May 1,2006 and addressed 
t-, Mainstay Business Solutions. ~rsr states in the letter that the etitioner is giving 
Mainstay the required 30 days notice for termination of the staffing contract. Mrs. stated that the 
petitioner was pleased with Mainstay's service but that the petitioner was going back to a standard "Workers 
Compensation Insurance of Payroll." Mrs. also stated the petitioner has had several problems with 
[CIS] and it wished to comply with the [CIS] rules and regulations. Counsel also submits a document entitled 
"Employment Agreement With Liquidate Damages in Case of Breach by Petitioned Employee". Both the 
beneficiary and the petitioner's president signed this document. The document basically outlines the rights 
7 
The petitioner in its response to the director's NOID clearly stated that the beneficiary is not working with 
the petitioner, and also provided evidence as to the beneficiary's current employment. 
8 
 The contract between the petitioner and Mainstay Business Solutions (Mainstay) to which the director 
refers in his decision is not found in the record. 
Page 7 
and duties of the beneficiary and the rights and responsibilities of the petitioner, including termination of the 
employment contract and a penalty provision of $1 0,000 if the contract is breached. 
Counsel resubmits a brochure about the petitioner, and also submits declarations by both Mrs. 
'I! ::: 
petitioner's president, and the beneficiary. In her declaration, Mrs.states that the petitioner wi 
employer of the beneficiary with full and unrestricted power to hire and fire, with the power to control and 
supervise her. ~rslso stated that the petitioner had hired an agency, Mainstay, to be an interim 
employment agency; however, during this time, Mainstay was just acting at the petitioner's "alter ego", 
e petitioner's instructions and direction with regard to the persons working for the petitioner. 
Mrs. follow' then stated that at all times when Mainstay had a contract with the petitioner, the petitioner 
directly did the interviews and selection of people working for the petitioner, and the petitioner directly 
accepted and hired all employees. She also states that Mainstay never acted on its own to move or transfer a 
person working for the petitioner nor could Mainstay hire a person that the petitioner did not want to hire. In a 
second declaration, ~rsstated that there were twenty-two 1-140 petitions that were approved at an 
annual salary of $19,5510.44 for each beneficiary, and that the total sum of salaries would be $429,229.60.~ 
-. 
~rs. stated that 
 presented its income tax return to support its claims of financial ability to 
pay these wages. Mrs. 
 states that with regard to the employment of all the approved applicants, the 
petitioner has no control, over the applicants because of the 
 eat demand for their services, and based on the 
indefinite wait for the immigrant petition approval. Mrsmtates 
 has continued to 
offer and will hire any of the beneficiaries at the petitioner s aci ~ties. Mrs. 
 tates that it is extremely 
difficult to find workers with the loyalty, dedication and patience to care for the elderly and that the petitioner 
has to compete with in-house nursing assistants for private patients. 
~rsstates that the offer to the beneficiary still stands; however, there was a misunderstanding on the 
bene ~ciary s part as to when she could legally work with the petitioner. Mrs. tates that in response to 
the director's question about why the beneficiary would want to move to San Jose for a job with a $9.37 
hourly wage, the offer of permanent residency status for the beneficiary in the United States is the greater 
incentive to accept the proffered position. Mrs. 
 states that the petitioner offers to petition for its 
workers, as an additional incentive for any such move and transfer to other areas, and to motivate a longer 
employment with the petitioner. 
In her declaration, the beneficiary states that the petitioner's salary rate is not the most important employment 
issue for her, but rather the offer to legalize the beneficiary's stay in the United States is the most important 
incentive for seeking employment with the petitioner. 
On appeal, in a cover letter submitted with the I-290B, counsel states that the proffered position is bona fide 
and the need for such a position is continuing especially with the expansion of the petitioner into Bakersfield, 
California.. Counsel states that the petitioner cannot find nurse's aides easily in the local labor market because 
most people, particularly the younger work force, prefer active, mentally challenging work in offices and in 
marketing. Counsel asserts that most people in the active labor force shun care provider work, and that the 
work for nurses' assistants is uniquely challenging and not easily appreciated until they are unavailable. 
The petitioner's president submitted no further evidentiary documentation to support this assertion. 
Page 8 
In his accompanying brief, counsel states that the main reason behind the director's denial is that CIS thinks 
that the petitioner is not the petitioner, but rather thinks that Mainstay, which counsel describes as the 
petitioner's employment agency, is the real petitioner. Counsel states that absent the selection, control, 
utilization and funds of the petitioner, Mainstay cannot and will not employ the beneficiary. Counsel asserts 
that Mainstay is not operating nor is it in the business of running a nursing home. Counsel states that even if 
Mainstay had the liberty to transfer the beneficiary to another job, counsel asserts that there is no evidence in 
the record that Mainstay, an employment agency and not engaged in the residential care of the elderly, has 
another client with the same line of business as the petitioner to which a transfer could be made. Counsel 
further asserts that a person or organization need not actually exercise control over the detail of the work to be 
an employer of an employee, the employee need only have the ability to control the details of the work. 
Counsel also asserts that a person and organization need not have absolute control to be an employer, and that 
the distinction between control and lack of control is one of degree. Counsel cites to various California 
appeals court decision involving employment issues in making his comments. Counsel further notes that 
Mainstay does not have a license to work, or exercise supervision in a nursing home, there is not evidence 
that such an alternate employer would accept the beneficiary, and finally, there is no evidence Mainstay had 
ever supervised and controlled the work of the beneficiary. Counsel finally states that with the termination of 
Mainstay's employment services by the petitioner, the issue of who is the direct employer of the beneficiary is 
moot. 
As previously stated, although the director referred to a contract between Mainstay and the petitioner, the 
record does not contain this document and the actual business relationship between the petitioner and 
Mainstay and the effective dates of any such relationship. Another letter referenced by the director in his 
decision that the director stated made very clear that the petitioner had no intent of contrillin 
 ent or 
hiring the beneficiary directly, is also not found in the record. Although the letter from Ms. 
 refers 
to the business arrangement between the two businesses, her letter is only given limited 
Of more probative weight would be the actual contract between the two businesses. 
Both the petitioner, counsel and the director refer to Mainstay as a temporary staffing agency. The petitioner 
and counsel refer to Mainstay as the petitioner's "alter ego". Although the director cited public records as a 
source of his information on Mainstay being a temporary staffing agency, he did not identify any such public 
documents. Based on its Internet website, Mainstay Business Solutions is a duly formed and organized tribal 
body of the Blue Lake Rancheria Tribe of California (Blue Lake), a federally-recognized Indian tribe. The 
business was established in April 2003 and appears to provide outsourced employment services to small and 
medium-sized businesses in California and ~awaii." The company website describes a range of services 
including "employee administration, including new hire processing, W4s and I-9s, payroll processing and 
delivery, recruitment, testing/screening/reference and credit checks, in addition to expertise in workers' 
compensation and loss control." See htt~://www.ii~aii~stavbusiness.co~i~services.htm. 
In addition, the company draws attention to its ability to use federal workmen's compensation rates as a 
means of lowering the costs of its actual and potential clients, based on its status as a tribal body. Thus, 
Mainstay's website, while providing more information on the company's activities, does not identifiy the 
company exclusively as a temporary staffing agency. The website does state the company has 15,000 
10 
In describing its business emphasis, the company states it works to lower the total cost of employment for 
businesses in a number of industries, and the client list includes restaurants, nursing and residential care 
facilities, construction companies, janitorial service providers, and various businesses in light industrial, 
manufacturing, warehousing, and similar professions. 
employees under management and has processed $750 million in payroll for some 129,000 employees over 
the past three years. 
In addition the fact that the petitioner, as Aquinas Corporation doing business as- 
submitted DE-6 Forms in tax years 2001, 2002, and 2003 supports the petitioner being the actual 
employer of the beneficiary as of the 2001 priority date year and as of the June 2003 filing of the instant 1-140 
petition. Based on the 2003 claimed date of establishment of Mainstay, Mainstay could not possibly have 
been the actual employer of the beneficiary as of the 2001 priority date year. The gap of documentation with 
regard to the petitioner's DE-6 Forms as of tax year 2004 and 2005 is not explained by either the petitioner 
nor counsel, nor does the EDD document from Mainstay provide any documentation as to the actual 
employment of the petitioner's work force; however, the director's assumption that the lack of such 
documentation means that the petitioner did not employ any employees in 2004 appears also unsubstantiated. 
However, the petitioner bears the burden of proof in establishing its eligibility for the visa petition, and thus 
far, based on the record, the preponderance of the evidence does not show that petitioner who filed the instant 
1-140 petition remained the employer of the beneficiary during tax years 2004 and 2005, or rather turned over 
the recruitment and hiring of employees, and according to the director's statements, control of the beneficiary, 
to Mainstay. 
Thus, the issue of whether the petitioner or Mainstay is the beneficiary's actual employer, during the years 
2004 and 2005 is not established by the director, counsel's comments, or the record. As previously stated, the 
record does not contain any contract of employment between the petitioner and Mainstay that establishes the 
actual relationship between the two business entities and/or how to terminate any relationship between the 
tow entities. 
As stated previously, the petitioner's documentation as to wages paid during the years 2001, 2002, and 2003 
support its being the prospective employer of the beneficiary as of the priority date and as of the actual filing 
of the petition in 2003. Furthermore, the record contains no documentation to suggest that Mainstay in any 
way is a successor in interest to the petitioner. With more persuasive documentation, the AAO can not 
evaluate the director's findings or counsel's comments with regard to the beneficiary's actual prospective 
employer during the 2004 or 2005 period of time. Thus, the AAO will withdraw the part of the director's 
decision that discusses the relationship between the petitioner and Mainstay, and remand the decision to the 
director for the creation of a complete record of proceedings to include the contract between the petitioner and 
Mainstay. 
The AAO views the more important issue to be examined in these proceedings as whether the petitioner has 
the ability to pay the proffered wage to the multiple beneficiaries for whom it has submitted 1-140 petitions. 
While the petitioner's federal income tax returns indicate substantial net income and net current assets, the 
director correctly noted that the petitioner, based on its multiple 1-140 petitions for multiple beneficiaries from 
the priority year 2001 to the present, had to establish its ability to pay the proffered wage, not only of the 
beneficiary, but of all the beneficiaries petitioned during the same period of time. 
The AAO notes the comments of the director with regard to why the beneficiary would relocate 300 miles for 
a job that pays $9.75 an hour. The director also drew attention to the beneficiary's age in questioning her 
intentions to work with the petitioner. The AAO views the questioning of the beneficiary's intentions based 
on her age and geographic location as inappropriate factors to consider. The AAO will not address this issue 
further. Furthermore, in his decision, the director refers to Matter of Estime, which is a case involving the 
criteria and standard of proof upon which a petition may be revoked. However, in the instant petition, the 
petition has been denied, not approved, and the issue of revocation is moot. 
In determining the petitioner's ability to pay the proffered wage during a given period, 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, both the beneficiary on the Form ETA 750 and the petitioner in materials submitted to the record 
stated that the beneficiary had not worked for the petitioner. Thus, the petitioner cannot establish that it 
employed and paid the beneficiary the full proffered wage in 2001 and onward. 
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 Woodcrqft 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. Supp. 647 (N.D. Ill. 1982)' affd, 703 F.2d 571 (7th Cir. 1983). 
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. Although the petitioner submitted 
its tax return for 2000, since the priority date was established in tax year 2001, the petitioner's tax return for 
2000 is not dispositive in these proceedings. Therefore, only the petitioner's 2001, 2002, and 2003 federal 
income tax returns are considered with regard to its net income. 
The evidence indicates that the petitioner is structured as an S corporation. For an S corporation, CIS 
considers net income to be the figure shown on line 21, ordinary income, of the IRS Form 1120s. The 
petitioner's tax return for 2001, 2002 and 2003 shows the following amounts of ordinary income: $891,017, 
$658,814, and $748,205. These figures are sufficient to pay the proffered wage of $19,510.44. However, as 
correctly noted by the director, the petitioner has to establish its ability to pay the proffered wage for all 
beneficiaries, when there are multiple petitions. 
In the instant petition, the director requested a detailed list of all beneficiaries with approved andlor pending I- 
140 petitions. The petitioner provided a list of 48 beneficiaries for whom the petitioner had filed 1-140 
petitions from 2002 to 2004. Of these beneficiaries, 33 petitions were filed in tax year 2003. In his notice of 
intent to deny the petition, the director stated that the EDD forms" showed no record of the petitioner's 
11 
As stated previously, the record is not clear to which EDD forms the director refers. 
Page 11 
previously approved 1-140 beneficiaries' work with the petitioner. The director also noted that CIS records 
indicate that these applicants had current and approved EAD cards for employment authorization. The 
director requested evidence to explain why the petitioner had not employed any of the pending applicants or 
approved applicants since the third quarter of 2004, and also why the petitioner apparently had not employed 
anyone since the end of the 4th quarter of 2004. 
In response the petitioner did not submit any evidentiary documentation with regard the previously approved 
beneficiaries, or employees pending 1-140 approvals. The petitioner did, however, provide a list of 48 
pending or approved 1-140 petitions filed between the years 2002 and 2004, and also identified the 
beneficiaries of these petitions. The petitioner identified 22 of these petitions as approved by CIS. The 
petitioner also stated that Mainstay Business Solutions handled the petitioner's payroll services, payroll taxes 
filing and reporting and insurance compliance. However, neither the petitioner nor Mainstay provided any of 
the requested information with regard to how many previously approved beneficiaries were working with the 
petitioner, and their wages. 
The petitioner would have to provide a listing of petitions filed as of March 26, 2001, the actual status of 
these petitions, and the proffered wages for these beneficiaries, prior to any examination by the AAO of 
whether the petitioner has sufficient net income to pay the wages of all multiple beneficiaries. Without this 
specific information, the AAO cannot determine whether the petit' 
mi 
fact has sufficient net income to 
pay the proffered wages of all multiple beneficiaries. On appeal, Mr 
 stated that there were twenty-two 
1-140 petitions that were approved at an annual salary of $1 9,5510.44 for each beneficiary, and that the total 
sum of salaries would be $429,229.60.12 
 However, Mrs. 
P 
submitted no further evidentiary 
documentation to further substantiate her assertion. The asse Ions of counsel, and by extension, the 
petitioner, 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). 
On appeal, counsel also does not provide any further evidentiary documentation as to the petitioner's multiple 
1-140 petitions and beneficiaries. Based on the lack of documentation, the petitioner has not established that it 
has the ability to pay the wages of all beneficiaries petitioned either since the 2001 priority date to the present, 
or since the 2003 filing of the instant 1-140 petition. Thus, the petitioner cannot establish its ability to pay the 
proffered wages of all beneficiaries petitioned for by the petitioner, based on its net income. 
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. 
12 
 The petitioner's president submitted no hrther evidentiary documentation to support this assertion. 
Page 12 
Net current assets are the difference between the petitioner's current assets and current liabilities.I3 
 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 submitted the following information for tax years 2001,2002, and 2003: 
Ordinary Income $ 891,017 $ 658,814 $ 748,205 
Current Assets $ 473,922 $ 1,407,168 $ 1,356,135 
Current Liabilities $ 371,008 $ 464,952 $ 31 1,644 
Net current assets $ 102,914 $ 942,216 $ 1,045,491 
The petitioner has not demonstrated that it paid the full proffered wage to the beneficiary. Based on the 
petitioner's net current assets, the petitioner has sufficient funds to pay the proffered wage of $19,510.44 in 
all three years in question based on its net income andlor net current assets. Nevertheless, as previously stated, 
the petitioner has to establish that it has the ability to pay the proffered wages of all beneficiaries of multiple 
1-140 petitions filed as of the 2001 priority date stipulated by the Form ETA 750. The record does reflect a list 
submitted by the petitioner of 48 beneficiaries identified on 1-140 petitions filed from 2002 to 2004. However, 
neither the petitioner nor counsel submitted any further evidentiary documentation to establish the actual 
employment of these beneficiaries and their actual wages. On appeal, the petitioner's president stated in her 
declaration that there were 22 1-140 petitions approved and the wages for the beneficiaries in these petitions 
would total $429,229.69. However, the petitioner's president presented no further evidentiary documentation 
such as pay slips, or employment records to further substantiate the actual employment and wages of these 22 
approved petitions and beneficiaries. The assertions of counsel, and by extension, the petitioner, 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). Without more evidence submitted to the record with regard to the actual 
employment of the previous beneficiaries and their wages, the AAO cannot determine whether the petitioner 
has the ability to pay the wages of all beneficiaries the multiple petitions filed by the petitioner, based on the 
petitioner's net income or net current assets. 
The petitioner has not, therefore, shown the ability to pay the proffered wage during the salient portion of 
2001 and continuing to the present date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 136 1. The petitioner has not met that burden. 
13 
 According to Barron S Dictionary of Accounting Terms 117 (3'* 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 11 8. 
Page 13 
ORDER: The appeal is remanded to the director.