sustained EB-3 Case: Physical Therapy

identifying data deleted to 
prevent - lia-ly unw arr an& 
invasion of personal P~WY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC-05-018-52916 Office: VERMONT SERVICE CENTER Date: SEP 0 8 2006 
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. 5 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, Chief 
Administrative Appeals Office 
EAC-05-018-52916 
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 medical office and physical therapy firm. It seeks to employ the beneficiary permanently 
in the United States as a physical therapist. 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. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history of this case is documented in the record and is incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's January 21, 2005 decision denying the petition, the single issue in this case is 
whether the evidence establishes the petitioner's ability to pay the proffered wage as of the priority date and 
continuing until the beneficiary obtains lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to 
qualified immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
Abili~ 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 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, 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 23, 2004. The proffered wage as stated on the Form ETA 750 is $22.00 per hour, which 
amounts to $45,760.00 annually. 
The AAO reviews appeals on a de novo basis. See Dorr v. I.N.S. 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. 
In the instant appeal, the petitioner submits a brief and additional evidence. 
EAC-05-0 18-529 16 
Page 3 
Relevant evidence submitted on appeal includes copies of a Form W-2 Wage and Tax Statement of the 
beneficiary for 2004, copies of paychecks from the petitioner to the beneficiary and pay statements of the 
beneficiary through February 4, 2005, and a copy of an unaudited financial statement of the petitioner as of 
November 30,2004. 
Other relevant evidence in the record submitted previously includes a copy of a Form 1120s U.S. Income Tax 
Return for an S Corporation of the petitioner for 2003, a copy of a payroll record of the petitioner for the 
beneficiary for five pay periods in 2004, copies of three paychecks from the petitioner to the beneficiary in 
2004, a letter from the office manager of the petitioner, a copy of an evaluation of the beneficiary's education 
and copies of licensing and educational documents of the beneficiary. 
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. 3 103.2(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). 
On appeal, the petitioner states that the beneficiary has worked for the petitioner since June 1, 2004 and has 
been paid at a rate higher than the proffered wage. Counsel also states that the petition was filed on October 
23,2004 and that the petitioner's 2003 federal tax return was submitted because it was the financial document 
available at that time. Counsel states that a financial statement of the petitioner for the eight months ended 
November 30, 2004 shows that after paying the beneficiary at a rate higher than the proffered wage during 
2004 the petitioner still registered a net profit of $6,717.00. Counsel also states that a statement from a 
certified public accountant certifies the petitioner's ability to pay the proffered wage. 
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. 
5 204.5(g)(2). For each year at issue, the petitioner's financial resources generally must be 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 of Sonegawa, 
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 September 27, 2004, the beneficiary did 
not claim to have worked for the petitioner. However other evidence in the record indicates that the 
beneficiary began working for the petitioner on June 1,2004. 
The record contains a copy of a Form W-2 Wage and Tax Statement of the beneficiary for 2004, which is the 
year of the priority date. That Form W-2 shows compensation received from the petitioner as shown in the 
table below. 
EAC-05-0 18-529 16 
Page 4 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in the year 
2004. 
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 (9th 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. Ill. 1982), aff'd., 703 F.2d 57 1 (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 an S corporation. The record contains a copy of the petitioner's Form 
1120s U.S. Income Tax Return for an S Corporation for 2003. The 1-140 petition was submitted on October 23, 
2004. As of that date, the petitioner's Form 1 120s tax return for 2003 was the most recent return available. 
Where an S corporation's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on line 21 of page one of the petitioner's Form 1120s. Where an S 
corporation has income from sources other than from a trade or business, that income is reported on Schedule K. 
An S corporation's total income from its various sources are reported on lines 1 through 6 of the Schedule K, 
Shareholders' Shares of Income, Credits, Deductions, etc. See Internal Revenue Service, Instructions for Form 
1 120s (2003), available at http://www.irs.gov/pub/irs-pnor/i 1 120s--2003 .pdf; Instructions for Form 1 120s 
(2002), available at http://www.irs.gov/pub/irs-prior/i1120s--2002.pdf. Similarly, some deductions appear only 
on the Schedule K. See Internal Revenue Senice, Instructions for Form 4562 (2003), at 1, available at 
http:Nwww.irs.govlpub/irs-priorli4562--200.pdf; Internal Revenue Service, Instructions for Form 1120s (2003), 
at 22, available at http://www.irs.gov/pub/irs-prior/i1120s--2003.pdf. 
Where the Schedule K has relevant entries for either additional income or additional deductions, net income is 
found on Line 23 of the Schedule K. for income. 
In the instant petition, the petitioner's tax returns indicate no income from activities other than from a trade or 
business or additional relevant deductions. Therefore the figure for ordinary income on line 21 of page one of the 
petitioner's Form 1 120s tax return may be considered as the petitioner's net income. That figure is shown in the 
table below. 
EAC-05-018-52916 
Page 5 
Tax Net income Wage increase needed Surplus or 
year or (loss) to pay the proffered wage (deficit) 
* Crediting the petitioner with the $30,878.00 paid to the beneficiary in 2004. 
The only year at issue in the instant petition is 2004, which is the year of the priority date. The tax return for 
2003, which is the most recent year available, fails to establish the petitioner's ability to pay the proffered 
wage as of the priority date. 
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. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. 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. 
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) 
* Crediting the petitioner with the $30,878.00 paid to the beneficiary in 2004. 
The above information fails to establish the petitioner's ability to pay the proffered wage as of the priority 
date. 
Counsel states that a financial statement of the petitioner for the eight months ended November 30, 2004 
shows that after paying the beneficiary at a rate higher than the proffered wage during 2004 the petitioner still 
registered a net profit of $6,717.00. The record contains a copy of an unaudited financial statement of the 
petitioner, which is apparently the financial statement referred to by counsel. However, unaudited financial 
statements are not persuasive evidence. According to the plain language of 8 C.F.R. 5 204.5(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 copies of pay checks from the petitioner to the beneficiary, which indicate that the 
beneficiary began working for the petitioner on June 1, 2004. The pay checks and the Form W-2 Wage and 
Tax Statement of the beneficiary for 2004 show that the beneficiary was paid at a rate higher than the 
proffered wage during that year. The Form W-2 shows compensation in the amount of $30,878.00 for the 
EAC-05-018-52916 
Page 6 
seven-month period from June 1, 2004 through December 31, 2004. On an annual basis, that rate of pay 
would be equal to $52,933.71, a rate higher than the proffered wage of $45,760.00. 
The foregoing documents therefore indicate that as of the October 23, 2004 priority date, the petitioner was 
already paying the beneficiary a salary in excess of the proffered wage. Copies of pay checks and pay 
statements of the beneficiary submitted for the first time on appeal show that the petitioner continued to pay 
the beneficiary at a rate higher than the proffered wage through February 4, 2005. The pay statement for the 
pay period ending February 4, 2005 was the most recent pay statement available as of the February 11, 2005 
filing date of the I-290B notice of appeal. 
Although the evidence does not establish that the petitioner has paid the beneficiary proffered wage for an 
entire year, part of the reason for the limited evidence appears to be the relatively short time period between 
the October 23, 2004 priority date and the February 11, 2005 date on which the notice of appeal was filed. 
The record on appeal includes the petitioner's most recent tax return, which is its Form 1120s for 2003, and 
also includes the beneficiary's most recent Form W-2, which is the Form W-2 for 2004, and pay checks of the 
beneficiary and pay statements from June 1,2004 through February 4,2005. 
The evidence submitted on appeal of actual payment of wages to the beneficiary in excess of the proffered 
wage beginning on June 1, 2004 and continuing through at least February 4, 2005 is considered 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. 
In his decision, the director correctly found that the information on the petitioner's Form 1120s U.S. Income 
Tax Return for an S Corporation for 2003 failed to establish the petitioner's ability to pay the proffered wage 
as of the priority date. Concerning the actual payments made by the petitioner to the beneficiary, the evidence 
before the director included only copies of three pay checks and a copy of a payroll record for the beneficiary 
for five pay periods, through the period ending August 5, 2004. The decision of the director to deny the 
petition was correct, based on the evidence in the record before the director. The record before the director 
did not include a copy of the beneficiary's Form W-2 Wage and Tax Statement for 2004 nor the additional 
copies of pay checks and of pay statements of the beneficiary through February 4, 2005, which were 
submitted for the first time on appeal. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal are 
sufficient to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. 
The petitioner has met that burden. 
ORDER: 
 The appeal is sustained. The petition is approved.