Interim Decision #2566 

MATTER OF GREAT WALL 

In Visa Petition Proceedings 

A-19784032 

Decided by Acting Regional Commissioner March 16, 1977 

(1) Petitioner sought to classify beneficiary for the issuance of an immigrant visa under 

section 203(a)(6) of the Immigration and Nationality Act as a store manager at a salary 

of 5850.00 per month. The record reveals that at the time the petition was filed the 

petitioner did not and could not pay the proffered wage indicated in the job offer (Form 

MA 7-50B) nor did the petitioner establish on appeal that he could and would be able to 

pay the beneficiary the salary offered in the future. 

(2) A visa petition for sixth-preference classification will be denied where it is found that 

the beneficiary io not being- paid the wages specified in the Job Offer for Alien Employ 

ment at the time the petition was filed becafise section 204(b) of the Act requires a 

determination that all the facts stated in the petition are true before the petition may be 

approved. 

ON BEHALF OF PETITIONER: Ahvin S. M. Tan, Esquire 

700 West Towers Building 

1200-35th Street 

West Des Moines, Iowa 52065 

This matter comes forward on appeal from the order of the District 

Director who on November 18, 1976, denied the petition for sicth 

preference to classify the beneficiary as a store manager. The District 

Director determined that the petitioner had failed to establish that Ile 

was financially able to pay the salary rate as stated in the job offer. 

The petitioner is an Oriental gift shop and food store. The beneficiary 

is a 25-year-old male, single, native of China, and citizen of Hong Kong, 

-who last entered the United States as a nonimmigrant student. Review 

.Dfhis Statement of Qualifications submitted with the petition and signed 

D ecember 19, 1975, reflects that his major field of study from July 1970 

through November 1974 was industrial engineering without receipt of a 

degree. In January 1974 he began study at Simpson College and received a Bachelor of Arts Degree with an economics major on May 25, 

1975. 

The petitioner in his job offer, which is dated December 16, 1975, 

stated he wished to hire the beneficiary as a store manager at the rate of 

8350.00 per month for a 40-48-hour week. In the job offer and the 

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petition itself (filed with the Service on April 9, 1976) he stated that the 

annual income of the organization was $50,000.00, and that there were 

two to three other employees at the establishment. There is no question 

that the beneficiary meets the requirements as set forth in the certified 

job offer. The issue herein is whether the petitioner is qualified to proffer 

the employment. It is noted that the petitioner's original request for labor 

certification was denied on January 22, 1976, but the denial was reversed 

on March 24, 1976, on the basis of the petitioner's assurance that the wage 

offer would be increased. 

Further Service inquiry of the petitioner's business revealed that 

Great Wall, Inc., has issued $21,000.00 worth of common stock. Mr. 

Shau Chung Hu, who signed the petition, owns $10,000.00, the beneficiary owns $10,000.00 and the beneficiary's sister owns $1,600.00 

worth of stock in the company. 

The beneficiary has also loaned the corporation $3,000.00 which admittedly was to cover operating expenses rather than for expansion of 

the business. The source of these funds was his mother. The beneficiary 

also admitted that although he had been employed by Great Wall, Inc., 

since September 1975, he had Tint received a salary as of September 14, 

1976. It was further revealed that the two to three employees shown on 

the petitioner's job offer were, in fact, two part-time employees. The 

estimated inventory of Great Wall, Inc., as of September 14, 1976, was 

$10,000.00. At that time the following total sales were shown in the 

corporation's books: 

November 1975 — $4,190.00 

December 1975 — 8,278.00 

January 1976 — 2,223.00 

February 1976 — 1,802.00 

March 1976 — 2,086.00 

April 1976 — 1,700.00 

May 1976 — 1,736.00 

June 1976 — 2,222.00 

There were no figures for July and August, 1976. Monthly rent for the 

shop was $538.00, electricity $40.00—$100.00, and salary for the two 

part-time employees was $200.00 $300.00 per month. 

On appeal, the petitioner, through counsel, concedes that the shop 

will not realize a profit, and, in fact, will suffer a loss. However, the 

petitioner urges that a prospective view of the venture be taken since it 

is relatively new. An uncertified income statement was submitted on 

appeal covering the period June 1, 1975 to May 31, 1976, which reflects a 

net loss (based on fiscal year) of $2,110.37. The petitioner also stated for 

the record in a letter dated December 29, 1976, that the beneficiary is 

now receiving his wages and will continue to receive them; however, no 

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evidence to support such claim has been produced. The brief on appeal, 

among other things, stated that the beneficiary's salary will be paid in 

stocks at the next annual meeting of the corporation. 

The fact that the petitioner may, sometime in the future, be able to 

pay the wage of $850.00 per month has been taken into consideration. 

However, in visa petition proceedings the burden of proof to establish 

eligibility rests with the petitioner (Matter of Brantigan , 11 I. & N. 

Dec. 493). The record in the instant case reflects that at the time the 

petition was filed with this Service the petitioner did not and could not 

pay the offered wage. Prospectively, the petitioner has not conclusively 

borne his burden and established on appeal that he can and will be able 

to pay the beneficiary the salary of $850.00 per month as offered on 

December 16, 1975. 

The certification required by section 212(a)(14) of the Immigration 

and Nationality Act, as amended, (the Act) was issued on March 24, 

1976. At the time that Section 212(a)(14) was originally enacted, the 

drafters of the Immigration and Nationality Act stated that the purpose 

of the provision was "to provide strong safeguards for American labor 

and to provide American labor protection against an influx of aliens 

entering the United States for the purpose of performing skilled or 

unskilled labor where the economy of individual localities is not capable 

of absorbing them at the time they desire to enter this country." (Emphasis supplied.) H.R. Rep. No. 1365, 82nd Cong. 2nd Session (1952), 

reprinted in (1952) U.S. Code Cong. & Ad. News 1705. 

The petition, if approved, would establish a priority date as of the 

date that the job offer (Form MA 7-50B) was accepted for processing by 

any office within the employment service system of the Department of 

Labor. In the instant case the priority date for visa issuance to the 

beneficiary would be January 2, 1976, pursuant to Federal Lea -illations at 

8 C.F.R. 204.1(c)(2). 

Section 204(a) of the Act requires the filing of a visa_ petition for 

classification under section 203(a)(6). Section 204(b) states, among other 

things, "After an investigation of the facts in each case, and after 

consultation with the Secretary of Labor with respect to petitions to 

accord a status under Section 203(a)(3) or (6), the Attorney General 

shall, if he determines that the facts stated in the petition are true and 

that the alien in behalf of whom the petition is made is . . . eligible for a 

preference status under Section 203(a), approve the petition . . ." (Emphasis supplied.) 

When a sixth-preference petition is filed, it seeks to establish that the 

employer is making a realistic job offer to an alien who is Qualified, and 

that the proposed employment will not displace United States workers 

dL Lhe time the petition is filed. I du nut feel, nor du I believe the 

Congress intended, that the petitioner, who admittedly could not pay 

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the offered wage at the time the petition was filed, should subsequently 

become eligible to have the petition approved under a new set of facts 

hinged upon probability and projections, even beyond the information 

presented on appeal. 

Eligibility for the preference being sought at the time of filing of the 

petition was previously decided by the Regional Commissioner in Ratter of Katigbak, 14 I. & N. Dec. 45. I am aware that Katigbak is not 

foursquare with the instant case in that the Regional Commissioner 

considered the beneficiary's eligibility for third preference at the time 

the petition was filed. However, it was determined that the beneficiary 

must be qualified at the time the petition is filed with this Service if a 

priority date for visa issuance is to be established. 

In sixth-preference visa petition proceedings the Service must consider the merits of the petitioner's job offer, so that a determination can 

be made whether the job offer is realistic and whether the wage offer 

can be met, as well as determine whether the alien meets the minimum 

requirements to perform the offered job satisfactorily. It follows that 

such consideration by the Service would necessarily be focused on the 

circumstances at the time of filing of the petition. The petitioner in the 

instant case cannot expect to establish a priority date for visa issuance 

for the beneficiary when at the time of making the job offer and the filing 

of the petition with this Service he could not, in all reality, pay the 

salary as stated in the job offer. See Matter of Sonegawa, 12 I. & N. 

Dec. 612, wherein it is held that the petitioner must demonstrate financial ability to meet the wage requirements of the certified job offer. 

The brief and documentation in support of the appeal before me do not 

substantially challenge the initial material on file considered by the 

District Director in his decision. I have carefully considered the entire 

record in this matter and T concur with the findings of the District 

Director. Accordingly, I will order that the appeal be dismissed. 

The denial of this petition is without prejudice to the submission of a 

new petition accompanied by a new labor certification establishing facts 

as they now exist. 

IT IS ORDERED that the appeal be and the same is hereby 

dismissed. 

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