SUFFICIENCY OF FUNDS TO PAY SALARY
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Documentary insufficiency may result
in denial of
Examples of persuasive
Authority of CO to request
Challenge must be clearly stated and
Challenge must be reasonably based
on the record
An application for labor certification must clearly show that the employer has enough funds available to pay the wage or salary offered to the alien. 20 C.F.R. § 656.20(c)(1).
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,
Certification was denied where the employer failed to
document that after opening a second restaurant he would
have the financial resources to pay the salaries of two
previously certified cooks who had not yet moved to the U.S.
Big Joy Chinese Restaurant
, 88-INA-354, 88-INA-362
(Oct. 30, 1989).
or the submission of documentation which contradicts an
employer's claim of sufficient funds.
- Certification was denied where the employer's tax returns and statements of proposed financial arrangements showed gross receipts insufficient to pay the alien's salary. White Harvest Mission , 90-INA-195 (Apr. 9, 1991).
Documentation supplied by individuals with personal knowledge of the employer's business and finances is persuasive. Such documentation includes, but is not limited to, affidavits by the employer's banker, accountant or shareholders; bank statements; inventory records; and tax returns.
Where the CO requested the employer to produce a
federal income tax return with a profit and loss statement
for the preceding tax year in order to show the ability to
pay the wage offered as required by § 656.20(c)(1), but
the employer submitted a financial statement which the
accountant qualified as not being an audited statement,
certification was denied. In affirming the denial the panel
noted that a federal income tax return is sworn to as
correct under penalty of perjury whereas the financial
statement was qualified as not being audited and was not
sworn (implying that the employer's submission was not
reliable), and that the statement reflected only assets and
liabilities instead of profit and losses as reasonably
requested by the CO (implying that the submission was not
responsive to a reasonable request by the CO for
, 90-INA-569 (Jan. 31,
An employer demonstrated the sufficiency of funds to
pay the alien's salary by providing two years of
accountant's statements and tax returns for its predecessor
Azumano Travel Service, Inc.
(Sept. 4, 1991).
An employer demonstrated the sufficiency of funds to
pay the alien's wage by submitting an affidavit, inventory
and bank statements which established more than $150,000 in
paid inventory, and liquid assets sufficient to pay the
Royal Antique Rugs, Inc.
(Oct. 30, 1991).
- Although the employer showed prior losses and a negative working capital when it applied for labor certification, the attestations by its accounting firm and its bank regarding its financial worth and the continuing financial support pledged by its major shareholder indicated that sufficient funds were available to pay the alien. Ohsawa America , 88-INA-240 (Aug. 20, 1988).
For a general discussion of the weighing of evidence, see Chapter 11, IV (Evidence).
A CO may make reasonable requests for information showing the ability to pay the wage offered as required by § 656.20(c)(1). Failure to comply with a CO's reasonable request for such information constitutes a ground for denial of certification. See , e.g. , The Whislers , 90-INA-569 (Jan. 31, 1992).
A CO's challenge to the sufficiency of funds must be clearly stated and supported in the NOF. If the challenge is unclear or ambiguous, the case may be remanded to the CO.
Orient Express Fast Food, Inc.
(Aug. 27, 1990), the record contained evidence which might
have supported a finding of insufficient funds to pay the
alien; however, the CO did not reveal which evidence
supported his finding, and his request for information was
unclear and ambiguous. The employer responded in good faith
to the CO's defective NOF, but did not meet its rebuttal
burden. Since the issue of sufficient funds was properly
raised, but the employer was not given adequate notice of
the evidence against it, the panel remanded the case to the
CO for further fact-finding.
, 90-INA-131 (Oct. 16, 1991), discussed in
Chapter 17, II, A, 3, a (Notice of Findings).
- Where the FD raised an issue of full-time employment (not stated in the NOF), contained consideration of new evidence obtained by the CO in its investigation as to whether the employer had a bona fide location of employment, and failed to raise the previously stated issue of financial ability of the employer to pay the alien's salary, the manner in which issues were raised was found to be so haphazard that a remand was necessary. Dr. Mary Zumot , 89-INA-35 (Nov. 4, 1991).
For a general discussion of the CO's obligation to give the employer adequate notice of alleged deficiencies, see Chapter 17, II (Notice of Findings).
A CO's challenge to the sufficiency of funds must be reasonably based on the record. Where the record shows no reasonable basis for the CO's concern that an employer does not have sufficient funds to pay the alien, the employer's failure to provide documentation requested by the CO may be harmless error. See Wild Heerbrugg Instruments, Inc. , 90-INA-197 (May 3, 1991).