Matter of Continental Systems – Denial for failure to show ability pay

BALCA upheld the denial for failure to show sufficient funds to pay the alien’s salary. Petitioner is a consulting company where the ability to pay salaries largely depends on the generation of funds by the consultants.

Issue Date: 07 April 2010
BALCA Case No.: 2009-PER-00441
ETA Case No.: A-07152-42137

Employer, on behalf of DINESH RAJESH THAMPY, Alien.

Certifying Officer: William L. Carlson
Atlanta Processing Center

Appearances: Thomas Abraham, Account Manager
Continental Systems USA, Inc.
Pro se for the Employer

Gary M. Buff, Associate Solicitor
Clarette H. Yen, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before: Colwell, Johnson and Wood
Administrative Law Judges


PER CURIAM. This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations.


On July 2, 2007, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification on behalf of the Alien for a “Software Engineer” position. (AF 103-113).1

On September 20, 2007, the CO issued an Audit Notification, directing the Employer to provide evidence of recruitment. (AF 99-102). Additionally, the CO directed the Employer to provide documentation to support its ability to pay the foreign worker the wage offered. (AF 102). The CO informed the Employer that such documentation must include: state payroll tax documentation for the last 3 years; “[b]ank statements for the current or latest profit-and-loss statement from its accountant; federal income tax statements for the last 3 years”2; a listing of current employees and their job titles; and current year to date (YTD) work contracts or letters of intent for work to be performed in the coming year. Id.

The Employer submitted an audit response on October 9, 2007, which included evidence of recruitment; state payroll tax documentation from Virginia for 2005-2007; bank statements for September 2007; federal income tax returns for 2004-2007; a listing of current employees and their titles; and current YTD work contracts for its H-1B employees. (AF 17-98).

On February 28, 2008, the CO denied certification in part because none of the documentation provided by the Employer in response to the audit notification evidences the Employer’s ability to pay the $48,200 per year offered to the foreign worker.3 (AF 14-16). The CO asserted that per 20 C.F.R. § 656.10(c), the Employer’s having sufficient funds available to pay the salary offered is one of the conditions of employment on the ETA Form 9089 to which the employer must certify. (AF 16).

The Employer submitted a request for review on March 4, 2008. (AF 2-12). In this request, the Employer stated, “We are a consulting company, and our ability to pay salary to our consultants largely depends upon the generation of funds by our consultants.” (AF 2). The Employer asserted that the beneficiary is not currently employed with the company and included his recent pay slips and contract with his current company to show that he has the potential to generate funds to meet the salary requirement of $48,200 per year through the Employer.

On August 19, 2009, the CO issued a letter of reconsideration, finding that the Employer did not overcome the deficiencies indicated in the determination letter. (AF 1). Specifically, the CO stated that the Employer’s 2007 tax return indicated that its income after paying operating costs was only $9,855. The CO asserted that per 20 C.F.R. § 656.10(c)(3), the employer must attest that it has enough funds available to pay the salary offered the alien and its documentation does not adequately verify that it has the ability to pay the wages offered the foreign worker.

BALCA issued a Notice of Docketing on September 3, 2009. The Employer filed a Statement of Intent to Proceed on September 5, 2009, but did not file an appellate brief. The CO filed an appellate brief on October 15, 2009, asserting that the Employer has not shown that it has sufficient funds to pay the wage offered the Alien. The CO contended that the Employer’s 2007 tax return showed that the business grossed $280,488 in 2007 and paid wages in the amount of $230,047. He pointed out that the Employer’s taxable income before the net operating loss and special deductions was $9,855 and was negative after deductions, thus even without the deductions its taxable income was nearly $40,000 short of the amount required to pay the Alien’s offered salary. The CO asserted that the statement of assets as of December 31, 2007, reflecting net assets of $100,183.75 is merely a snapshot of a particular moment in time and does not indicate the Employer has enough funds to pay the wage offered the Alien. The CO further contended that the Alien’s current contract and earnings statements with another employer do not substantiate the Employer’s requirement that it have enough funds to pay the salary offered to the Alien.


As part of the permanent labor certification process, the employer must attest to certain conditions of employment, including that “[t]he employer has enough funds available to pay the wage or salary offered the alien.” 20 C.F.R. § 656.10(c)(3). A CO may make reasonable requests for information showing the ability to pay the wage offered. Whislers, 1990-INA-569 (Jan. 31, 1992).

In determining if an employer has sufficient funds to pay for wages, what is important is not whether the employer’s adjusted gross income, taxable income, disposable income or any other measure of income is established, but whether the employer has presented credible evidence that it has enough money available to guarantee the alien’s salary. Ranchito Coletero, 2002-INA-105 (en banc). Certification may be denied if an employer fails to meet its burden of proving the sufficiency of funds to pay the alien’s salary. Denial may result from either the absence of documentation or the submission of documentation which contradicts an employer’s claim of sufficient funds. Whistlers, 1990-INA-569 (Jan. 31, 1992).

In the instant case, the Employer failed to show that it had sufficient funds to pay the alien’s salary of $48,200 per year. The Employer’s 2007 tax return showed that the business grossed $280,488 in 2007 and paid wages in the amount of $230,047. The Employer’s taxable income before the net operating loss and special deductions was $9,855 and was negative after deductions, thus even without the deductions its taxable income was nearly $40,000 short of the amount required to pay the Alien’s offered salary.4 The Employer’s income tax returns for 2006 and 2005 also show a negative taxable income, both before and after deductions.5

Moreover, the employer has not presented credible evidence that it has enough money available to guarantee the Alien’s salary.6 The only evidence the Employer submitted that supports its position that it has sufficient funds to pay the Alien’s salary is its statement of assets, dated December 31, 2007, showing net assets of $100,183.75. However, as the CO pointed out, this is merely a snapshot of a particular moment in time and does not indicate the Employer has enough funds to pay the wage offered the Alien. Further, the Employer’s contention that the Alien will generate enough funds through consulting to enable the Employer to pay his salary is not sufficient under the regulations. As the CO contended, the Alien’s current contract and earnings statements with another employer do not substantiate the assertion that the petitioning Employer has enough funds to pay the salary offered to the Alien. Accordingly, we find that the CO properly denied certification.


Based on the foregoing, IT IS ORDERED that the Certifying Officer’s denial of labor certification in the above-captioned matter is AFFIRMED.

Entered at the direction of the panel by:

Todd R. Smyth
Secretary to the Board of Alien Labor Certification Appeals

1 In this decision, AF is an abbreviation for Appeal File.

2 The CO apparently omitted a word after the word “current” in the quoted phrase. Because there is no issue regarding the sufficiency of documentation, as opposed to sufficiency of proof of ability to pay wages, we do not address the ambiguity created by that omission.

3 The CO also gave a second reason for denial but it is no longer an issue on appeal.

4 Similarly, in Milk N Honey Restaurant, 1998-INA-164 (Jan. 28, 1999), the Board upheld the denial of certification finding that where the employer committed to pay the alien an annual salary of $28,000 but “was operating at a loss and was not paying its six employees more than $18,000, its failure to demonstrate that it had the financial capacity to pay the wages it offered was definitive.”

5 In 2005, the Employer’s taxable income was -6,576, and in 2006, it was -30,089 (both before and after deductions.) In 2007, the Employer’s taxable income before the net operating loss and special deductions was 9,855 and -26,810 after the deductions.

6 See Ohsawa America, 1988-INA-240 (Aug. 30, 1988), in which, although the corporate employer, as of the date of application for labor certification, had been showing prior losses and a negative working capital, the panel found sufficiency of funds where the company’s accountant showed that the employer had increased sales and reduced operating losses, and that the major shareholder, who had indicated a willingness to continue to fund the company, had a personal net worth of over $4,000,000.

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17
Used the services of this office for Green Card through AOS and was mainly in contact with John Dorer. I was unsure about their services at first, considering the unusually affordable cost but was pleasantly surprised by their prompt responses to all our questions and their timely preparing and handling of our documents! Will be using their services again when filing for removal of condition! Definitely recommended!
Lisa Lorentzon
Lisa Lorentzon
22:56 10 Dec 17
my wife and i worked with John Dorer from Marc Taylors Associates. He's services were awesome and amazing. i would recommend him to anybody applying for their permanent resident to work with them.
Seun Olanrewaju
Seun Olanrewaju
15:33 22 Dec 17
I was very pleased with their professional service from the beginning to the end for my citizenship application. I am a professional working in the higher education and somewhat familiar with the immigration process. For that reason, I was thinking of applying it by myself but I found Taylor and Associates whose service fee is very affordable and worth of my time. Indeed, they found some of minor mistakes in my application, which could have delayed much longer for my application process. Luckily, they caught and fixed them immediately. Their communication was excellent. In fact, everything was very smooth. Even after I had the approval notice, they followed up with valuable advices. I strongly recommend their service if you need immigration services. Thank you Marc and John for your excellent services.
Dominic Choo
Dominic Choo
17:12 23 Dec 17
Absolute top notch firm for any and all immigration assistance. They assisted me in obtaining my permanent residency and through it all were right there to assist with trouble shooting and complications. Any and all questions were always answered within hours and you’re never left to feel anything less than a top priority as a client. The friendliness and professionalism with which they operate is A1 and I wouldn’t have been able to navigate the complications of USCIS without Marc and John. Highly recommend anyone seeking assistance to contact them!
Vanessa Nolan
Vanessa Nolan
21:05 21 Mar 18

Read More Client Reviews