remanded EB-3 Case: Tennis

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
9 
p$& 
FILE: WAC 03 106 50 170 Office: CALIFORNIA SERVICE CENTER Date: 2 1 2006 
IN RE: Petitioner: 
Beneficiary: 
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. 
 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, Director 
Administrative Appeals Office 
WAC 03 106 50 170 
Page 2 
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 matter will be remanded to the director for 
the submission of a complete record of proceedings prior to a final decision by the AAO. 
The petitioner is a tennis club. 
 It seeks to employ the beneficiary permanently in the United States as a 
tennis professional instructor. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, accompanied the petition. The director determined that 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage 
beginning on the priority date of the visa petition and denied the petition accordingly. 
On appeal, counsel states that the petitioner has the ability to pay the proffered wage based on its total 
income. Counsel submits additional documentation. 
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 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. 
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 8 204.5(d). Here, the Form ETA 750 was accepted for processing on 
March 19,2001. The proffered wage as stated on the Form ETA 750 is an hourly salary of $30, or an annual 
salary of $62,400. On the Form ETA 750B, signed by the beneficiary, the beneficiary claimed to have worked 
for the petitioner since June of 1996. 
On the petition, the petitioner claimed to have been established on May 29, 1996, to have 25 employees, a 
gross annual income of $197,390 and a net annual income of $31,000. In support of the petition, the 
petitioner submitted letters of work verification from the beneficiary's former employers in Burma. The 
WAC 03 106 50 170 
Page 3 
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 May 12, 2003, the director requested 
additional evidence pertinent to that ability. The director also specifically requested that the petitioner 
provide copies of annual reports, federal tax returns, or audited financial statements for tax year 2002. The 
director stated that the record indicated that the beneficiary had worked for the petitioner from June 1996 to 
the present. The director requested that the petitioner submit a copy of the beneficiary's W-2 Form for years 
2001 and 2002, as w3ell as Form DE-6, Quarterly Wage Report for all employees for the last four quarters, 
along with names, social security numbers and number of weeks worked for all employees. 
The director noted that the petitioner had submitted tax documents for a different company than the petitioner, 
and asked for a thorough 
qualifying relationship be 
requested an annual report o 
offices, and percentage of ownership, as well as the petitioner's articles of incorporation and current state 
business license. 
It is noted that although the record contains the director's re uest for further evidence dated May 12, 2003, 
the record does not contain any letter from Mr. dwith regard to the successor in interest issue. 
Nor does the record indicate the receipt of the petitioner's tax return for 2002 in response to the director's 
request for further evidence. 
On October 12, 2004, the director referenced his request for further evidence and stated that on August 4, 
2003, the petitioner submitted tax returns for the years 2000 and 2001 along with a request for an automatic 
extension to file its 2002 tax return. The director also noted that the petitioner did not provide W-2 Forms for 
the beneficiary, or Forms DE-6 with regard to all its employees. In addition the director stated the petitioner's 
chief executive a letter stating that ~ana~ement is a 
successor-in-interest t he director also noted that the petitioner failed to submit any 
evidence, such as a state business license or articles of incorporation. In his examination of the petitioner's 
2000 and 2001 tax returns, previously submitted with the initial petition, the director stated that in 2000, the 
petitioner's taxable gross income was $28,056, and its net current assets were $26,066. With regard to tax 
year 2001, the director stated that the petitioner's taxable gross income in 2001 was $31,000, while its net 
current assets were $1,002. The director determined that as of the March 19, 2001 priority date, the petitioner 
had not established that it had the ability to continuously pay the beneficiary's proffered wage from March 
200 1 to the present. 
On atmeal. counsel submits a fictitious business name statement that states I 
I Novato, and California, was doing business as / 
Wilshire Boulevard, Suite 160, Los Angeb C;LLLfOlllla. 1 Th 
 dpcument states 
. 
began to transact business under the name 
stamped as received on January 15,2003. 
asserts that the fictitious business name statement is issued by 
the document does not reflect this dual name. 
WAC 03 106 50 170 
Page 4 
Counsel also submits tax returns fo located at 
San Rafael California for tax year 2001. Two other Forms 1 120s for tax years 
fo c. These documents indicate that the petitioner doing business as - 
Clubs, had ordinary income of $31,000 in 2001, of $421,664 in 2002, and $252,927 in 2003. Counsel then 
submits a definition for the word "net income" from MSN Money website on the Internet. Counsel also 
C.P.A., who identifies herself as a 
 Chief Financial 
states that the 
petitioner has the ability to pay a wage of $62,400 based on the petitioner's annual net operati 
which is four to six times greater than the proffered wage. Counsel also submits 
Club, Inc, as of September 30, 2004, along with a profit and loss statement for 
January through September 2004. Finally counsel submits a profit and loss statement for January through 
September 2004 foras well as profit and loss statements for the same entity for the 
periods of January through December 200 1,2002, and 2003 .2 
Counsel asserts that even if ordinary income is negative, CIS will generally assume that the petitioner can 
handle the additional salary, if according to its tax return, it has a favorable enough ration of total current 
assets to total current liabilities. Counsel asserts that the petitioner's gym equipment alone is worth nearly 
$300,000, and its liabilities are minimal. Counsel also asserts that if the evidence submitt self- 
explanatory, CIS should turn to expert opinion letters such as the letter submitted by Ms. m, the 
petitioner's financial officer. Counsel then states that case law further establishes the petitioner's ability to 
pay the proffered wage and cites to several unpublished AAO decision as well as to Matter of Ranchito 
Coletero, 02-INA-105 a Bureau of Alien Labor Certification Appeal (BALCA) decision. 
As previously stated, the record does not reflect any materials submitted by the petitioner in response to the 
director's request for further evidence, with regard to whether the petitioner is a successor in interest to the 
present petitioner. Furthermore, the by the petitioner on appeal suggest that the current 
petitioner may be doing business as ., although this relationship is not clearly established 
in the record. Thus, the record is confused. While the AAO will examine the materials submitted on appeal, 
the petition shall be remanded to the director for submission of the complete record. The AAO will comment 
on the materials found in the record as presently constituted, while acknowledging that the petition will be 
remanded for the submission of the complete record. 
Counsel's reliance on the profit and loss statements from the 
 hich it appears to suggest 
is the same business as the petitioner, is misplaced. First, 
 the relationship between 
nd the petitioner, other than they are located at the same address. Second, counsel's 
records is misplaced. The regulation at 8 C.F.R. 9 204.5(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 represent audited statements. Unaudited financial statements are the 
* Based on Ms. 
 s located at the same address as the 
petitioner, namely, oes not list 
LA in her letterhea 
WAC 03 106 50 170 
Page 5 
representations of management. The unsupported representations of management are not reliable evidence 
and are insufficient to demonstrate the ability to pay the proffered wage. 
On appeal, counsel refers to unpublished AAO decisions and to Ranchito Coletero, a BALCA decision and 
states that these decision lend credence to the petitioner's ability to pay the proffered wage. With regard to the 
AAO decisions, counsel does not provide published citations for these cases. While 8 C.F.R. 5 103.3(c) provides 
that precedent decisions of CIS are binding on all its employees in the administration of the Act, unpublished 
decisions are not similarly binding. Precedent decisions must be designated and published in bound volumes or 
as interim decisions. 8 C.F.R. 8 103.9(a). Furthermore, with regard to BALCA decisions, Counsel does not state 
how the Department of Labor's (DOL) Bureau of Alien Labor Certification Appeals (BALCA) precedent is 
binding on the AAO. While 8 C.F.R. 9 103.3(c) provides that precedent decisions of CIS are binding on all its 
employees in the administration of the Act, BALCA decisions are not similarly binding. Again, precedent 
decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 9 103.9(a). 
Furthermore, Ranchito Coletero deals with a sole proprietorship and is not directly applicable to the instant 
petition, which deals with a corporation. 
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. Although the beneficiary indicated on the Form ETA 750 that 
he had worked for the petitioner since May 1996, the petitioner provided no evidentiary documentation to 
further establish this assertion. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In the 
instant case, the petitioner did not establish that it employed and paid the beneficiary the full proffered wage 
in 200 1 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 Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thornburgh, 7 19 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), afd, 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. It is noted that the priority date for 
the instant petition is March 19, 2001. Therefore the income tax return for 2000, submitted with the initial 
petition, is not dispositive. 
WAC 03 106 50170 
Page 6 
In addition, the 2001 tax returns submitted with the initial petition and on appeal are for a business with an 
employer identification number of 68-0383986 and an incorporation date of May 29, 1996. This employer 
identification number and incorporation date is the same as that listed on the Form ETA 750. The tax returns 
submitted on appeal for tax year 2002 and 2003 are for a business with an employer identification number of 
68-0304990, and with an incorporation date of June 8, 1993. As noted previously, the record is confused. As 
suggested by the dw , there is insufficient evidence in the record to establish the 
relationship between and its mother company, 1~urthermore as 
previously stated, the ictitious name statement submitted by 
between the petitioner, identified asand either 
Clubs, the two businesses named on the statement. If the 
the record is not clear as to what extent the resources of the mother company are 
available to pay the beneficiary's proffered wage. 
Inc. 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 1120~s tax returns for 2001, 2002, and 
of ordinary income: $3 1,000 in 200 1, $42 1,664 in 2002, and $252,927 in 
2003. 
 net income for 2002 and 2003 are sufficient to establish its ability to pay the 
to pay the proffered wage of $62,400. A petitioner must establish the 
elements for the approval of the petition at the time of filing. However, a petition may not be approved if the 
beneficiary was not qualified at the priority date, but expects to become eligible at a subsequent time. Matter 
of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). net income in 200 1, the 
year in which the priority date is established, is not sufficient to establish the petitioner's ability to pay the 
proffered wage. 
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. 
Net current assets are the difference between the petitioner's current assets and current liabi~ities.~ 
 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 
According to Barron 's Dictionary ofAccounting 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. 
WAC 03 106 50 170 
Page 7 
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 year 2001 : 
Ordinary Income $ 31,000 
Current Assets $ 1,002 
Current Liabilities $ 0 
Net current assets $ 1,002 
These figures fail to establish the ability of the petitioner to pay the proffered wage. The petitioner has not 
demonstrated that it paid the full proffered wage to the beneficiary. In 2001, the petitioner shows a net income 
of $31,000, and net current assets of $1,002, and has not, therefore, d monstrated the ability to pay the 
proffered wage out of its net income or net current assets. Although e. established its 
ability to pay the beneficiary's wage in 2002 and 2003, it has not shown the ability to pay the proffered wage 
during the salient portion of 2001 and continuing to the present date. Therefore, the petitioner has not 
established that it had the continuing ability to pay the proffered wage beginning on the priority date. 
As previously stated, the record of proceedings is incomplete with regard to any materials submitted by the 
petitioner in response to the director's request for further evidence. Therefore the matter is remanded to the 
director for the submission of a complete record of proceedings prior to the issuance of a final decision by the 
AAO. Based on the record as presently constituted, the petitioner has not established its ability to pay the 
proffered wage. Also, as stated previously, the relationship between 
remains unclear. and 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not met that burden. 
ORDER: The petition is remanded to the director for submission of a complete record of proceedings prior to the 
issuance of a final decision by AAO.