Judges' Benchbook: Alien Labor Certification

Office of Administrative Law Judges
United States Department of Labor

Second Edition - May 1992

CHAPTER 30 - SUPPLEMENT

Supplement current through January 1997

SUFFICIENCY OF FUNDS TO PAY SALARY

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TABLE OF CONTENTS

I. Employer must document sufficiency of funds to pay salary

II. CO's challenge to the sufficiency of funds

I. Employer must document sufficiency of funds to pay salary

A. Documentary insufficiency may result in denial of application

Where the CO questioned Employer's ability to pay the Alien's wage, and where Employer only rebutted by stating that it would be able to pay Alien with anticipated available funds, denial of labor certification is proper. JC2N, Inc. , 93-INA-195 (Jun. 9, 1994). See also Kayveekay Gems , 94- INA-174 (Dec. 23, 1994) (no evidence submitted to show ability to pay wage).

Where the CO reasonably requested that Employer submit a profit and loss statement to document ability to pay wage, but Employer instead submitted a sales & use tax return and bank statement that it is currently negotiating a second loan, Employer failed to provide reasonably requested documentation and certification denied. China Inn Restaurant , 93-INA-496, 497 (Aug. 26, 1994).

Where employer's tax returns indicate gross receipts of $10,296, and job offer paid $29,224 annually, employer has not documented ability to pay wages and certification properly denied. Foothill Division Karate Club , 93-INA-494 (Oct. 11, 1994).

Where Employer's tax returns indicate earnings of $2,770.00 in 1989, $4,513.00 in 1990 and $2,998.00 in 1991, Employer has failed to establish that it has income sufficient to pay the wages that are being offered to the Alien, approximately $15,000.00 annually. Pastucha Art , 93-INA-305 (Apr. 6, 1995).

Where Employer's tax returns do not indicate any wages and a net profit insufficient to pay the required wage for the job, denial of certification is appropriate. Richard W. Rucker Design Studio , 94-INA-205 (Apr. 26, 1995); Venetian Marble , 95-INA-35 (Oct. 2, 1996).

B. Examples of persuasive documentation

Restaurant's documentary submissions demonstrate that it is a substantial, bona fide business doing a high volume of business, and that it is owned and operated by a responsible and effective restauranteur who has met his payroll in the past. Moreover, the evidence submitted indicates substantial assets tied up in the business, with minimal debt and high equity investment. Accordingly, although the restaurant showed a loss of $29,406.08 for its first year, the panel concluded that Employer has shown that it will be able to pay the wages offered the alien. Oriental Pearl Restaurant , 92-INA-59 (Aug. 24, 1993)(Clarke, J. dissenting ).

Restaurant documented substantially increasing patronage and gross sales in the first six months of 1991, compared with its startup operations in 1990, with its cost of goods purchased and supplies declining from nearly 50% in the last half of 1990, to less than 25% in the first six months in 1991. The panel concluded that in general there was sufficient persuasive documentation to justify the conclusion that employment of the Alien would strengthen the business and its ability to pay the wages offered. Samarat Indian Cuisine , 92-INA-87 (Dec. 22, 1993).

The panel vacated the CO's determination that Employer had insufficiently documented ability to pay the Alien's wages. The panel found the CO's conclusion that ability to pay wages is based solely on the assets of the business operation for which certification is sought overly strict. Accordingly, the panel considered additional assets at the disposal of the owner as a relevant factor when determining ability to pay the wages offered. Far East International, Inc. , 93-INA-22 (Dec. 21, 1993).

II. CO's challenge to the sufficiency of funds

A. Authority of CO to request information

Where tax information submitted with labor certification application indicates that Employer did not have sufficient funds to pay for the two positions at issue, the CO reasonably requested that Employer document ability to pay the wage by submitting a profit and loss statement for the previous year. China Inn Restaurant , 93-INA-496, 497 (Aug. 26, 1994). See also O.K. Liquor , 95-INA-7 (Aug. 22, 1996) (denying certification where Employer failed to provide information questioning whether Employer could pay the offered salary).

B. Challenge must be clearly stated and supported

no new cases

C. Challenge must be reasonably based on the record

no new cases