sustained EB-3 Case: Healthcare

ldentilying data deleted to 
prevent dearly unwarrantd 
invasion of personal privacy 
WBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
pjs 
FILE: EAC-04-09 1 -50623 Office: VERMONT SERVICE CENTER Date: ,#Y 1 9 8e 
PETITION: 
 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. fj 1153(b)(3) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-04-09 1-50623 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition 
will be approved. 
The petitioner is a professional healthcare staffing firm. It seeks to employ the beneficiary permanently in the 
United States as a nurse. The petitioner asserts that the beneficiary qualifies for certification pursuant to 20 
C.F.R. $ 656.10, Schedule A, Group I. The petitioner submitted the Application for Alien Employment 
Certification (ETA 750) with the Immigrant Petition for Alien Worker (1-140). 
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. 
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 slulled 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. $ 204.5(g)(2) states: 
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 either 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 petition's 
priority date. The priority date for Schedule A occupations is established when the 1-140 is properly filed 
with Citizenship and Immigration Services (CIS), (formerly the Service or the INS). 8 C.F.R $ 204.5(d). 
The 1-140 petition was submitted on February 5, 2004, thereby establishing the priority date. 
On the 1-140 petition, the petitioner claimed to have been established in 2002, to currently have six employees 
and to have a gross annual income of $500,000.00. The item on the petition for net annual income was left 
blank. The proffered wage as stated on the Form ETA 750 is $50,000.00 per year. On the Form ETA 750B, 
signed by the beneficiary on January 22,2004, the beneficiary did not claim to have worked for the petitioner. 
With the petition, the petitioner submitted supporting evidence. 
In a request for evidence (RFE) dated April 16, 2004, the director requested additional evidence relevant to 
the petitioner's continuing ability to pay the proffered wage beginning on the priority date. 
EAC-04-09 1-50623 
Page 3 
In response to the RFE, the petitioner submitted additional evidence. The petitioner's submissions in response 
to the RFE were received by the director on April 28,2004. 
In a decision dated September 28, 2004, the director determined that the evidence did not establish that the 
petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawhl permanent residence, and denied the petition. 
On appeal, the petitioner submits no brief and submits additional evidence. The petitioner states on appeal that 
it files its tax returns on the cash basis of accounting, and that therefore its accounts receivable were not reflected 
in the current assets portion on Schedule L of the petitioner's U.S. Return of Parhership Income. The petitioner 
states that a statement of accounts receivable which is submitted on appeal shows a $71,621.03 balance. The 
petitioner also states that bank statements submitted on appeal for the months of February through September 
2004 show the petitioner's consistent financial ability to compensate the beneficiary at the proffered annual salary 
of $50,000.00. Finally, the petitioner states that the $210,321 cash basis loss shown on the petitioner's Form 
1065 tax return for 2003 reflected several one-time start-up related costs that are not expected to recur during the 
petitioner's continuing operations. 
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). 
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 
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. tj 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. Comrn. 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 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 22,2004, the beneficiary did not claim 
to have worked for the petitioner, and no other evidence in the record indicates that the beneficiary has worked 
for the petitioner. 
As another 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 for a given year, 
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 (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 
EAC-04-09 1-50623 
Page 4 
(N.D. Ill. 1982), am., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service 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 Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a partnership. The record contains copies of the petitioner's Form 
1065 U.S. Returns of Partnership Income for 2002 and 2003. The record before the director closed on April 28, 
2004 with the receipt by the director of the petitioner's submissions in response to the RFE. As of that date, the 
petitioner's federal tax return for 2003 was the most recent return available. 
Where a partnership's income is exclusively from a trade or business, CIS considers net income to be the figure 
for ordinary income, shown on line 22 of page one of the petitioner's Form 1065. Where a partnership has 
income from sources other than from a trade or business, that income is reported on Schedule K. Similarly, some 
deductions appear only on the Schedule K. See Internal Revenue Service, Instructions for Form 4562 (2003), at 
1, available at http://www.irs.gov/pub/irs-prior/i4562--2003.pdf. 
Where the Schedule K has relevant entries for either additional income or additional deductions, net income is 
found on Schedule K, Form 1065, page 4, Analysis of Net Income (Loss), line 1. 
In the instant petition, the petitioner's tax returns indicate no income from activities other than from a trade or 
business but the Form 1065 for 2003 indicates one additional relevant deduction. For ths reason and for 
consistency in analysis, both for 2002 and for 2003 the petitioner's net income will be considered as the amounts 
on Schedule K, Form 1065, page 4, Analysis of Net Income (Loss), line 1. Those amounts are shown on the table 
below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
2002 $0.0 not applicable not applicable 
2003 -$210,421 .OO not applicable -$2 10,42 1 .OO 
2004 not available $50,000.00* no information 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2004, 
which is only year at issue in the instant petition. The petitioner's information for 2003 is considered relevant 
because the tax return for that year was the most recent return available when the record before the director 
closed. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a partnership taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A partnership's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 15 through 17. If a partnership's 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 
EAC-04-09 1-50623 
Page 5 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield the amounts for year-end 
net current assets as shown in the following table. 
Tax 
year 
Net 
current Wage increase needed Surplus or 
assets to pay the proffered wage deficit 
2002 $10,000.00 not applicable not applicable 
2003 $49,579.00 not applicable not applicable 
2004 not available not available -$42 1 .OO* * 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary. 
** Deficit based on 2003 year-end net current assets. 
As noted above, the petitioner's information for 2003 is considered relevant because the tax return for that 
year was the most recent return available when the record before the director closed. The difference between 
the petitioner's year-end net current assets in 2003 and the proffered wage is only $421.00. That amount 
represents only several days pay at the proffered wage of $50,000.00 per year. Therefore, the above 
information is sufficient to establish the petitioner's ability to pay the proffered wage in 2004, which is only 
year at issue in the instant petition. 
The record also contains copies of bank statements. Bank statements are not among the three types of evidence 
listed in 8 C.F.R. 4 204.5(g)(2) as acceptable evidence to establish a petitioner's ability to pay a proffered wage. 
However, in the instant petition, the petitioner has submitted copies of its federal tax returns, which satisfy the 
regulatory provision as to the form of required evidence. The petitioner's bank statements therefore may be 
considered as supplemental evidence. 
On the petitioner's bank statements the ending balances are as follows: 
2004: Ending balances 
January 
February $45,037.92 
March $37,889.54 
April $36,3 10.03 
May $26,148.90 
June $1 8,825.24 
Ending balances 
July $2,146.66 
August $18,209.97 
September $21,762.56 
October 
November 
December - 
In the instant case, the ending balances indicate significant monthly ending balances during most of the months of 
2004, which is the year of the priority date. The bank statements therefore indicate that the petitioner had 
available cash on hand to pay the proffered wage during 2004 and the bank statements therefore provide 
corroboration for the information on the petitioner's tax returns. 
EAC-04-091-50623 
Page 6 
The record also contains a document titled Customer Balance Summary, dated October 18, 2004, showing 
balances at three health care institutions as of October 12, 2004 totaling $71,621.03. In the notice of appeal the 
petitioner states that the document is a statement of current accounts receivable. The document therefore appears 
to be a partial unaudited financial statement prepared by the petitioner. Unaudited financial statements are not 
persuasive evidence. According to the plain language of 8 C.F.R. 3 204.5(g)(2), where the petitioner relies on 
financial statements as evidence of a petitioner's financial condition and of its ability to pay the proffered 
wage, those statements must be audited. Unaudited statements are the unsupported representations of 
management. The unsupported representations of management are not persuasive evidence of a petitioner's 
ability to pay the proffered wage. 
The record also contains a copy of a Form 1040 U.S. Individual Income Tax Return for 2003 of one of the 
petitioner's members and the member's wife, a joint return. The status of the member with regard to the 
petitioner is found on a Schedule K-1 attached to the petitioner's Form 1065 U.S. Return of Partnership Income 
for 2003, which identifies him as a "limited liability company member." (Form 1065 for 2003, Schedule K-1). 
That designation suggests that the member is not personally liable for the financial obligations of the petitioner. 
For ths reason, the Form 1040 individual tax return of the member and his wife will not be considered as further 
evidence of the petitioner's ability to pay the proffered wage. 
The record also contains copies of Form W-2 Wage and Tax Statements of the petitioner's employees for the year 
2003 and copies of pay statements of four of those employees for one pay period in April 2004. The Form W-2's 
contain no significant information beyond that on the petitioner's Form 1065 tax return for 2003 but they appear 
to be consistent with the information on that tax return. The pay statements for one pay period in April 2004 also 
provide no Mher significant information relevant to the petitioner's ability to pay the proffered wage, but they 
raise no inconsistencies with other evidence in the record. 
In the notice of appeal, the petitioner states that the $210,321 cash basis loss shown on the petitioner's Form 1065 
tax return for 2003 reflected several one-time start-up related costs that are not expected to recur during the 
petitioner's continuing operations. The petitioner's Form 1065 U.S. Return of Partnership Income for 2002 in the 
record is marked as an initial return. That return therefore indicates that the petitioner was a new partnership in 
the year 2002. 
In summary, the petitioner's year-end net current assets shown on its federal tax return for 2003 are sufficient to 
establish the petitioner's ability to pay the proffered wage. Other evidence in the record is consistent with the 
evidence on the petitioner's tax returns. 
In her decision, the director correctly stated the petitioner's net income in 2003 and correctly calculated the 
petitioner's year-end net current assets for 2003. The director found that those amounts failed to establish the 
petitioner's ability to pay the proffered wage. The director erred in finding that the petitioner's year-end net 
current assets were insufficient to establish the petitioner's ability to pay the proffered wage, since the 
difference between the year-end net current assets and the proffered wage is an insignificant amount, and 
since other evidence in the record is consistent with the tax return evidence and provides additional support to 
help to establish the petitioner's ability to pay the proffered wage. 
For the reasons discussed above, the assertions of the petitioner on appeal and the evidence submitted on 
appeal overcome the decision of the director. 
EAC-04-09 1-50623 
Page 7 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
 1361. 
The petitioner has met that burden. 
ORDER: 
 The appeal is sustained. The petition is approved.