sustained EB-3 Case: Healthcare

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PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services ~6
FILE: LIN-03-114-50114 Office: NEBRASKA SERVICE CENTER Date: SEP 2 7 2006
INRE: Petitioner:
Beneficiary:
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. § 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.
U
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN-03-114-50114
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Nebraska 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 health care facility for handicapped children. It seeks to employ the beneficiary
permanently in the United States as a developmental disability specialist. 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 had the training required to
qualify as a skilled worker in the occupation of developmental disability specialist, and denied the petition
accordingly.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(3)(A)(i), provides
for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for
classification under this paragraph, of performing skilled labor (requiring at least two years training or
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United
States.
A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the
approval of the relating petition. To be eligible for approval, a beneficiary must have all the education, training,
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. § 103.2(b)(l), (12).
See Matter of Wing's Tea House, 16 I&N Dec. 158 (Comm. 1977). The priority date 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 C.F.R. § 204.5(d). The priority date in the instant petition is October 22,2002.
The 1-140 petition was submitted on February 24, 2003. On the petition, in Part 2, Petition type, the petitioner
checked box "e" for "a skilled worker (requiring at least two years of specialized training or experience) or
professional." (1-140 petition, Part 2). In Part 5 of the petition, Additional information about the petitioner,
the petitioner claimed to have been established in 1975, to currently have 140 employees, to have a gross
annual income of "+$20 Million," and to have a net annual income of "+$889,000." (1-140 petition, Part 5).
With the petition, the petitioner submitted supporting evidence.
In a September 21, 2004 decision, the director determined that the evidence failed to establish that the
beneficiary's possessed two years of post-secondary education relevant to the position of developmental disability
specialist. The director therefore found that the beneficiary did not meet the regulatory definition of skilled
worker, and denied the petition.
On appeal, counsel submits no brief and submits additional evidence. Counsel states on appeal that the
beneficiary's post-secondary education includes a Bachelor's degree in Biology and post-graduate studies in
medical school, fields which counsel states have been found relevant to the position of developmental disability
specialist by previous decisions of the AAO. The evidence newly submitted on appeal consists of a transcript of
the beneficiary's studies in medical school.
The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, which are
incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in the instant case
provides no reason to preclude consideration of the document newly submitted on appeal. See Matter of
Soriano, 19 I&N Dec. 764 (BIA 1988).
LIN-03-114-50114
Page 3
The AAO reviews appeals on a de novo basis. See Dorr v. INS. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989).
The AAO considers all pertinent evidence in the record, including any new evidence properly submitted on
appeal.
The regulation at 8 C.F.R. § 204.5(g)(1) states in pertinent part:
Evidence relating to qualifying experience or training shall be in the form of letter(s) from
current or former employer(s) or trainer(s) and shall include the name, address, and title of the
writer, and a specific description of the duties performed by the alien or of the training received.
If such evidence is unavailable, other documentation relating to the alien's experience or training
will be considered.
To determine whether a beneficiary is eligible for an employment-based immigrant visa as set forth above, CIS
must examine whether the alien's credentials meet the requirements set forth in the labor certification. The
Application for Alien Employment Certification, Form ETA-750A, blocks 14 and 15, sets forth the minimum
education, training and experience that an applicant must have for the position of developmental disability
specialist. On the ETA 750A submitted with the instant petition, blocks 14 and 15 describe the requirements of
the offered position as follows:
14.
15.
Education (number of years)
Grade School
High School
College
College Degree Required
Major Field of Study
Training - yrs
Experience
Job Offered
Related Occupation
Related Occupation (specify)
Other Special Requirements
8
4
4
Bachelor's**
Any field
n/a
Yrs 0
Yrs 0
None
** Bachelor's! Foreign Equivalent! Credential
Evaluation which shows a combination of education,
training and or work experience equivalency
The beneficiary states his or her qualifications on Form ETA 750B. On the ETA 750B submitted with the instant
petition, in block 11, for information on the names and addresses of schools, colleges and universities attended
(including trade or vocational training facilities), the beneficiary states the following:
LIN-03-114-50114
Page 4
Schools, Colleges
and Universities, etc.
Far Eastern University
Manila, Philippines
[remaining rows blank]
Field of Study
Biology
From
0811987
To
0311991
Degrees or Certificates
Received
Bachelor of
Science
On the ETA 750B submitted with the instant petition, in block 15, for information on the beneficiary's work
experience the beneficiary states the following:
Name and Address
of Employer
Waltermart
Paranaque City, Philippines
[remaining rows blank]
Name of Job
Merchandiser
From
10/2000
To
10/2001
Kind of
Business
Merchandise Store
The regulation at 8 C.F.R. § 204.5(1)(2)states in pertinent part:
Definitions. As used in this part:
Skilled worker means an alien who is capable, at the time of petitioning for this
classification, of performing skilled labor (requiring at least two years training or experience),
not of a temporary or seasonal nature, for which qualified workers are not available in the
United States. Relevant post-secondary education may be considered as training for the
purposes of this provision.
In the instant 1-140 petition, the ETA 750 specifies the following duties for the position of developmental
disability specialist:
To develop and implement a continuous active treatment program for each profoundly mentally
and physically handicapped resident to enable each individual to function as independently as
possible and prevent skill regression. Observe, instruct and play with resident and confer with
professionals and parents to obtain information relating to child's mental and physical
development. Develop individual teaching plan covering self-help, motor, social, cognitive and
language skills development. Revises teaching plan to correspond with child's rate of
development. Consults and coordinates plans with other professionals.
(ETA 750, Part A, block 13).
In his September 21, 2004 decision, the director determined that the evidence failed to establish that the
beneficiary's possessed two years of post-secondary education relevant to the position of developmental disability
specialist. The director therefore found that the beneficiary did not meet the regulatory definition of skilled
worker, and denied the petition.
LIN-03-114-50114
Page 5
The director's decision to deny the petition was correct, based on the evidence which was in the record before the
director. However, the evidence newly submitted on appeal is sufficient to overcome the decision of the director.
The record contains a copy of a diploma dated March 27, 1991 from the Far Eastern University, Manila,
Philippines, granting the beneficiary a Bachelor of Science degree in Biology, with an accompanying course
transcript.
The record also contains a copy of an academic evaluation for the beneficiary by Morningside Evaluations and
Consulting, New York, New York dated February 19,2003.
The beneficiary's course transcript from Far Eastern University shows no courses which are directly relevant to
the position of developmental disability specialist. The transcript shows no courses in the fields of Education or
Health Care. The transcript shows several courses in the field of science which could be shown to be at least
indirectly relevant to the offered position, including General Zoology, General Chemistry, Organic Chemistry,
Microbiology, General Psychology, Systematic Zoology, General Parasitology, and Systematic Botany. The
beneficiary's transcript shows one or two such courses each semester. Over eight semesters of study, such
courses are insufficient to establish at least two years of study relevant to the offered position.
The academic evaluation by Morningside Evaluations and Consulting finds that the beneficiary's degree from Far
Eastern University is equivalent to a Bachelor of Science degree in Biology from an accredited institution of
higher education in the United States.
CIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. However,
where an opinion is not in accord with other information or is in any way questionable, CIS is not required to
accept or may give less weight to that evidence. Matter of Caron International, 19I&N Dec. 791 (Comm.
1988). In the instant petition, the academic evaluation by Morningside Evaluations and Consulting is a
reasonable analysis of the beneficiary's academic qualifications. However, the field of Biology cannot be
considered to be sufficiently relevant to the position of developmental disability specialist to qualify as training
for that position.
Counsel asserts that the beneficiary's education also includes post-graduate studies in medical school. The record
contains a copy of an undated professional resume of the beneficiary, in which the section on the beneficiary's
education includes an entry stating post-graduate studies at the Fatima College of Medicine from 1991-1993.
That resume fails to satisfy the evidentiary requirements of the regulation at 8 C.F.R. § 204.5(g)(1). At the time
of the director's decision the record contained no other documentation of the beneficiary's studies at Fatima
College, and the director's decision made no reference to those studies.
On appeal, the petitioner has submitted a copy of a transcript of the petitioner's studies at Fatima College of
Medicine, showing a total of twelve courses passed during the three school years of 1991-92, 1992-93 and
1993-94. That transcript conforms to the evidentiary requirements of the regulation at 8 C.F.R. § 204.5(g)(1).
The total number of credits in the passed courses on the Fatima College of Medicine transcript is 71 credits. The
beneficiary's undergraduate transcript and the academic evaluation in the record of the beneficiary's
undergraduate studies indicate that a full-time course load at the undergraduate level in the Philippines is about 17
credits per semester. Assuming a similar course load for full-time studies in medical school would indicate that
the beneficiary's studies at the Fatima College of Medicine were equivalent to about four semesters of full-time
study. Studies in the field of medicine are considered by CIS to be relevant to the offered position of
developmental disability specialist.
LIN-03-114-50114
Page 6
The beneficiary's studies in the field of medicine and his prior relevant courses toward his undergraduate degree
in Biology are sufficient to establish that the beneficiary had more than two years of post-secondary education
relevant to the offered position asof the priority date.
As noted above, to be eligible for approval, a beneficiary must have all the education, training, and experience
specified on the labor certification as of the petition's priority date. 8 C.F.R. § 103.2(b)(1), (12). See Matter of
Wing's Tea House, 16 I&N Dec. 158 (Comm. 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm.
1971). The evidence in the record is sufficient to establish that the beneficiary had at least two years of post­
secondary education which was relevant to the position of developmental disability specialist as of the
priority date.
For the foregoing reasons, the assertions of counsel on appeal and the evidence submitted on appeal are
sufficient to overcome the decision of the director concerning the education of the beneficiary.
In his decision, the director did not discuss thepetitioner's ability to pay the proffered wage.
The regulation at 8 C.F.R. § 204.5(g)(2) states:
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 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 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 petition's
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 C.F.R. § 204.5(d). The priority date in the instant
petition is October 22,2002. The proffered wage as stated on the Form ETA 750 is $7.66 per hour, which
amounts to $15,932.80 annually.
It may be noted that it has been approximately four years since the Application for Alien Employment
Certification has been accepted and the proffered wage established. The employer certification that is part of
the application states, "The wage offered equals or exceeds the prevailing wage and I [the employer]
guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins work will
equal or exceed the prevailing wage which is applicable at the time the alien begins work." (ETA Form 750
Part A, Section 23 b).
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
LIN-03-114-50114
Page 7
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. § 204.5(g)(2). In
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate financial resources sufficient
to pay the annual amount of the beneficiary's wages, although the totality of the circumstances affecting the
petitioning business will be considered if the evidence warrants such consideration. See Matter ofSonegawa, 12
I&N Dec. 612 (Reg. Comm. 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 October 9, 2002, 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.
If the instant petition were the only petition filed by the petitioner, the petitioner would be required to produce
evidence of its ability to pay the proffered wage to the single beneficiary of the instant petition. However,
where a petitioner has filed multiple petitions for multiple beneficiaries which have been pending
simultaneously, the petitioner must produce evidence that its job offers to each beneficiary are realistic, and
therefore that it has the ability to pay the proffered wages to each of the beneficiaries of its pending petitions,
as of the priority date of each petition and continuing until the beneficiary of each petition obtains lawful
permanent residence. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (petitioner must establish ability to
pay as of the date of the Form MA 7-50B job offer, the predecessor to the Form ETA 750). See also 8 C.F.R.
§ 204.5(g)(2).
CIS electronic records show that the petitioner has filed a total of 302 1-140 petitions since 1996. The great
majority of those petitions have been filed since 2002. The number ofI-140 petitions filed was 4 in 1996,9
in 1997, 2 in 1998, 5 in 1999, 7 in 2000, 11 in 2001,56 in 2002, 125 in 2003,66 in 2004,5 in 2005, and 12 in
2006, through August 22, 2006.
As noted above, the instant petition was filed on February 24,2003. During the year 2003 the petitioner filed
a total of one hundred twenty-five 1-140 petitions, including the instant petition.
Even if a petition has been withdrawn by the petitioner, the petitioner has the right to substitute a new
beneficiary on an ETA 750 labor certification application by filing a new 1-140 petition, supported by a new
ETA 750B for the new beneficiary. The ETA 750's underlying any withdrawn petitions remain valid, with
the same priority dates. Memo. from Luis G. Crocetti, Associate Commissioner, Immigration and
Naturalization Service, to Regional Directors, et aI., Immigration and Naturalization Service, Substitution of
Labor Certification Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fm/fm96/fm_28-96a.pdf (March 7,
1996); see Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure,
vol. 4, § 43.04 (Mathew Bender & Company, Inc. 2004) (available at "LexisNexis" Mathew Bender Online).
Therefore the certified ETA 750's underlying any withdrawn petitions retain potential relevance to the
petitioner's total proffered wage commitments for a given year. Similarly, for any petitions which have been
denied, the underlying approved ETA 750 would remain available for a new 1-140 petition for the same
beneficiary or for a substituted beneficiary, provided that the reason for the earlier 1-140 denial was one which
could be cured by a new petition for same beneficiary, or for a substituted beneficiary.
LIN-03-114-50114
Page 8
CIS electronic records do not show the priority dates of all petitions filed by the petitioner. The priority date
of the instant petition is October 22,2002, which is about four months earlier than the February 24, 2003 date
on which the 1-140 petition was filed. It cannot be assumed that all of the 1-140 petitions filed by the
petitioner in 2003 also had priority dates in the year 2002. If four months is a typical period between the
priority date and the filing of an 1-I40 petition by the petitioner, then the 1-140 petitions filed from about May
1,2003 through the end of2003 probably were based on ETA 750's which were filed in the year 2003.
CIS electronic records do not contain sufficient information on priority dates on which to base estimates of
the effect of multiple petitions beginning with each petition's priority date. Therefore an estimate of the total
wage commitment the petitioner for multiple petitions will be made beginning in the year of the 1-140 filing,
which in the instant petition is 2003.
The record in the instant case contains no direct information about the proffered wages for the beneficiaries of
the other petitions submitted by the petitioner. The petitioner has submitted no list of proffered wages for
each of the beneficiaries of the other 1-140 petitions it has filed. The AAO will therefore use the proffered
wage of$7.66 as the basis for estimating the petitioner's proffered wage commitments to the beneficiaries of
the petitioner's other 1-140 petitions. As noted above, an hourly wage of $7.66 for a 40-hour work week is
equivalent to an annual wage of $15,932.80.
In the year 2003 the petitioner filed one hundred twenty-five 1-140 petitions, including the instant petition. At
an estimated annual proffered wage level of $15,932.80 for each beneficiary, one hundred twenty-five 1-I40
petitions would result in a total estimated proffered wage commitment of $1,991,600.00 for the 1-140
petitions filed in the year 2003.
The instant 1-140 petition states that the petitioner was formed in 1975 and employs "140+" employees.
(1-140 petition, Part 5). The regulation at 8 C.F.R. § 204.5(g)(2) states that where a petitioner 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. The language "may accept" in the
above regulation indicates that CIS is not required to accept such a statement, but rather may exercise its
discretion not to accept such as statement. See 8 C.F.R. § 204.5(g)(2).
The record contains a copy of a letter dated August 6, 2002 from a Director of the petitioner which states as
follows:
I, , do hereby certify that I am the director of Resource Development for
Swann Special Care Center, Inc., a corporation organized and existing under the laws of the
State of llIinois.
The corporation is now and will be for the expected future able to pay the wages offered to
our employee.
The corporation employs more than 140 people at our Champaign, llIinois facility.
For the fiscal year ended June 30, 2002, Swann Special Care Center had revenue in excess of
$20,319.662.00 and net income in excess of $889,974.24. Our 2001 financial statements
were audited by Price Waterhouse.
LIN-03-114-50114
Page 9
I hereby certify that the information provided herein, as of this date is true , accurate and
complete in every material respect.
(Letter from
The letter from does not state that is a financial officer of the petitioner , as
required by the regulat ion at 8 C.F.R . § 204.5(g)(2) . Moreover , the content of that letter is not sufficient to
establish the petitioner 's ability to pay the proffered wage during the relevant time period . The letter states
that the petitioner 's net income is in excess of $889,974 .24 per year. That amount of net income is less than
the estimated $1,991 ,600 .00 in proffered wage commitments which the petitioner has made in one hundred
twenty-five 1-140 petitions which it submitted in 2003 , including the instant petition .
The letter from -refers to the petitioner as "Swann Special Care Center, Inc." No evidence in
the record corro~'s assertion that that is the legal name of the petitioner. On the 1-140
petition , the petitioner's name is stated as "Swann Special Care Center," with no concluding abbreviation
" Inc." Other evidence in the record indicates that" wann Special Care Center" is in fact a trade name for a
corporation named "Hoosier Care , Inc." assertion that the petitioner is "Swann Special Care
Center , Inc." is inconsistent with other evidence in the record . The Board of Immigration Appeals has stated ,
"It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective
evidence , and attempts to explain or reconcile such inconsistencies, absent competent objective evidence
pointing to where the truth , in fact , lies, will not suffice. " Matter of Ho , 19 I&N Dec. 582 , 591-592 (BIA
1988).
As another means of determ ining 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 th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh , 719 F. Supp. 532 (N.D. Tex .
1989); K.c.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v . Palmer, 539 F. Supp. 647
(N.D. III. 1982), aff'd., 703 F.2d 571 (7th 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.
Several documents in the record indicate that the legal name of the petitioner is Hoosier Care, Inc. The record
contains copies of the articles of incorporation, bylaws and the certificate of incorporation of Hoosier Care , Inc.
which show its incorporation as a not-for-profit corporation in the State of Indiana in December 1988. The record
also contains a copy of an Illinois Charitable Organization Annual Report of Hoosier Care, Inc., for the year
beginning July 1 ,2001 and ending June 30, 200 2, which indicates that the corporation was carrying on activities
in the State of Illinois that year.
A document in the record titled Organizational Overview states that Hoosier Care, Inc., IS a tax exempt
organization under section 501(c)(3) of the Internal Revenue Code.
The record contains a copy of a Form 990 Return of Organization Exempt from Income Tax for 200 I of
Hoosier Care, Inc. The employer identification number on that return matche s the Internal Revenue Service
tax number of the petitioner as shown on the 1-140 petition . The Form 990 return is for a tax year beginning
on July 1,2001 and ending on June 30, 2002.
LIN-03-114-50114
Page 10
The 1-140 petition was filed on February 24,2003. As of that date, the petitioner's Form 990 for its 2002 tax
year was not yet available, which presumably ran from July 1,2002 until June 30, 2003. The director issued a
request for additional evidence (RFE) dated April 17, 2003. The petitioner's response to the RFE was
received by the director on July 9, 2003. As of that date, the petitioner's Form 990 for its 2002 tax year was
not yet due. Therefore, when the record before the director closed on July 9, 2003, the petitioner's Form 990
for its 2001 tax year was the most recent tax return available.
The petitioner's Form 990 return for 2001 shows on line 18 an excess of revenue over expenses in the amount
of $298,998.00. That figure may be considered to be the petitioner's net income. The amount of $298,998.00
is less than the estimated $1,991,600.00 in proffered wage commitments which the petitioner has made in one
hundred twenty-five 1-140 petitions which it submitted in 2003, including the instant petition. The
petitioner's net income therefore fails to establish the petitioner's ability to pay the proffered wage in 2003.
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 corporate 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. If a corporation'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 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.
The petitioner's Form 990 for 2001 contains a balance sheet in section IV of the return. The line items on the
Form 990 balance sheet do not clearly distinguish between current assets and other assets or between current
liabilities and other liabilities. In the assets section, only the items on lines 45 through 47 for cash, savings
and accounts receivable can be clearly considered as current assets, and only the item on line 60 for accounts
payable and accrued expenses can be clearly considered as current liabilities. Calculations based on those
items yield a figure of $4,605,017.00 for year-end net current assets for the petitioner's 2001 tax year. As
noted above, the petitioner's 2001 tax year ended on June 30, 2002.
The figure of $4,605.017.00 is many multiples of the petitioner's proffered wage of $15,932.80, and it
therefore is sufficient to establish the petitioner's ability to pay the proffered wage in the year 2002, which is
the year of the priority date.
The petitioner's figure for year-end net current assets of $4,605,017.00 is also greater than the estimated
$1,991,600.00 in proffered wage commitments which the petitioner has made in one hundred twenty-five
1-140 petitions which it submitted in 2003, including the instant petition. The petitioner's net current assets
therefore are sufficient to establish the petitioner's ability to pay the proffered wage in 2003.
The record contains copies of audited combined financial statements of the petitioner, and of another corporation,
Hoosier Care II, Inc. Notes to the accompanying audit report state that both corporations are among eight
subordinate obligated group companies of Hoosier Care Group and that members of the board of directors of
Hoosier Care Group also serve on the boards of directors of the subordinate obligated entities, in some cases with
other individuals.
The combined financial statements of the petitioner and of Hoosier Care II., Inc., are for the years ended June 30,
2001 and June 30, 2002. The audit report accompanying the financial statements is dated September 17,2002.
LIN-03-114-S0114
Page 11
That date suggests that the audit report for the year ended June 30, 2002 was the most recent audit report available
when the record closed in the instant petition on July 9,2003.
According to the Organizational Overview mentioned above, the petitioner owns and operates three skilled
nursing-pediatrics facilities in Illinois and one such facility in Indiana. One of the facilities in Illinois is Swann
Special Care Center, which is the trade name under which the instant petition was filed. The other corporation,
Hoosier Care II, Inc., like the petitioner, is incorporated under the laws of the State of Indiana. It owns and
operates three skilled nursing geriatric facilities in Indiana and it also has a lease for the operation of another
healthcare facility in Indiana.
Most portions of the combined financial statements for the years ended June 30, 2001 and June 30, 2002 present
combined financial information for the petitioner and for Hoosier Care II, Inc., with no separate figures for each
corporation. However, for the year ended June 30, 2002 income and expenses statements and balance sheets are
stated separately for each corporation.
The income and expense statement of the petitioner shows the information in the following table.
Year Wage increases needed Surplus or
ending Net income to pay the proffered wage deficit
6/30/02 $298,998.00 not applicable not applicable
6/30/03 not submitted $1,991,600.00* no information
* The estimated total proffered wage commitments of the petitioner for the one
hundred twenty five petitions submitted in 2003, including the instant petition.
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in the year
2003.
Calculations based on the balance sheet information for the petitioner for the year ended June 30, 2002 yield
the amount for year-end net current assets as shown in the following table.
Net
Year current Wage increase needed Surplus or
ending assets to pay the proffered wage deficit
6/30/02 $4,544,905.00 not applicable not applicable
6/30/03 not submitted $1,991,600.00* no information
* The estimated total proffered wage commitments of the petitioner for the one
hundred twenty five petitions submitted in 2003, including the instant petition.
The above information shows substantial net current assets as of June 30, 2002. The figure of $4,544,905.00
is significantly greater than the estimated total proffered wage commitments of the petitioner of
$1,991,600.00 for the petitions submitted in 2003.
The information on the petitioner's audited financial reports is generally consistent with the information on
the petitioner's Form 990 tax return discussed above. Both the audited financial reports and the Form 990 tax
LIN-03-114-50114
Page 12
return show substantial net current assets as of June 30, 2002. Both sets of documents therefore are sufficient
to establish the petitioner's ability to pay the proffered wage in 2002, which is the year of the priority date, as
well as in 2003.
The record also contains copies of quarterly wage reports of the petitioner for the fourth quarter of 2002 and the
first quarter of 2003. Those reports appear to be generally consistent with other financial evidence in the record
and they therefore provide some additional support to help establish the petitioner's ability to pay the proffered
wage.
The record also contains copies of unaudited combined financial statements dated December 31, 2002 and
March 31, 2003. Unaudited financial statements are not persuasive evidence. According to the plain language
of 8 C.F.R. § 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. Moreover, the
unaudited combined financial statements do not present any information separately for the petitioner, but
rather present only combined figures for the petitioner and for Hoosier Care II, Inc. A corporation is a
separate and distinct legal entity from its owners or stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA
1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter of
Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). In the case of a nonprofit corporation, the fact that the
members of its board of directors are also the members of the board of directors of another nonprofit
corporation does not affect the independent legal status of either corporation. Nothing in the governing
regulation at 8 C.F.R. § 204.5 allows CIS to consider the assets or resources of individuals or entities that
have no legal obligation to pay the wage. See Sitar Restaurant v. Ashcroft, 2003 WL 22203713 at *3 (D.
Mass. Sept. 18,2003).
Although the unaudited financial statements provide no further support to help establish the petitioner's ability to
pay the proffered wage, the information discussed above on the petitioner's net current assets as shown in its
Form 990 tax return for 2001 and in its audited financial statements for the year ended June 30, 2002 is sufficient
to establish the petitioner's ability to pay the proffered wage in 2002, which is the year of the priority date, as well
as in 2003.
In summary, the assertions of counsel on appeal and the evidence submitted on appeal are sufficient to
overcome the decision of the director concerning the education of the beneficiary. Furthermore, the evidence
in the record is sufficient to establish the petitioner's ability to pay the proffered wage as of the priority date
and continuing until the beneficiary obtains lawful permanent residence.
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.