dismissed EB-3 Case: Culinary

4dentiMng data deleted to 
prevent dearly unwanaetod 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
IN RE: 
PETITION: Immigrant 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. 9 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 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Vermont 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a cook. 
As required by statute, the petition is accompanied by Form ETA 750, Application for Alien Employment 
Certification, approved by the Department of Labor. As set forth in the director's October 22, 2004, denial, 
the denial was based on whether or not the petitioner has the ability to pay the proffered wage. The director 
found that the petitioner did not demonstrate the continuing ability to pay the required wage, and the director 
denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 153(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 nature, for which qualified workers are not available in the United 
States. 
The regulation 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
Ability of prospective 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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The priority date is the date that Form ETA 750 Application for Alien Employment Certification was 
accepted for processing by any office within the employment service system of the Department of Labor. See 
8 CFR 9 204.5(d). 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 30, 
2001. The proffered wage as stated on Form ETA 750 for the position of a cook is $10.12 per hour, 40 hours 
per week, which is equivalent to $21,049.60 per year. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal1. The petitioner 
previously submitted its 2001 and 2002 federal tax returns. 
 On appeal, counsel's Form I-290B form 
I 
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). 
references that it would submit a separate brief within 30 days. Counsel submitted the additional brief by 
Federal Express dated May 2, 2005. In the appeal, counsel asserts that the director's decision is in error. 
Counsel asserts that the director failed to consider, in accordance with the May 4, 2004, William R. Yates' 
Memo (May 4 Yates Memo) regarding "Determination of Ability to Pay under 8 CFR 204.5(g)(2)," that 
where the employer's income is greater to or equal than the offered wage, financial ability is established. 
Counsel contends that the employer had demonstrated income and assets in excess of the offered wage, and 
thus demonstrated the petitioner's ability to pay the wage. In the separate brief, counsel points to the 
petitioner's gross receipts as evidenced in the 2001, and 2002 federal tax returns submitted with the initial 
filing, reflecting "gross receipts" of $1,030,368.00, and $1,138,238.00 respectively. Counsel also asserts that 
under O'Conner v. Attorney General of the United States, 1987 WL 18243 (D.Mass. 1987), that the 
employer's enter financial circumstances should be considered. 
The record does not contain any other evidence relevant to the petitioner's ability to pay the wage. Counsel 
additionally requests that the case be remanded, as it was initially determined in accordance with the May 4 
Yates Memo, which allowed for denial without the need to request additional evidence, and asserts that since 
this memo has been withdrawn by a later Yates Memo dated February 16, 2005, that the case should be 
remanded to the director. 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the I- 
140 petition filed, the petitioner failed to list the required information on page 4, Part 5, including: date of 
establishment, gross annual income, net annual income, and the petitioner's current number of employees. 
The 1-140 Petition additionally fails to list the beneficiary's salary. The proffered wage will be taken from the 
certified Form ETA 750. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. A petitioner's filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later filed based on 
the approved ETA 750. Therefore, the petitioner must establish that the job offer was realistic as of the priority 
date, here, April 30, 2001, 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. 
 204.5(g)(2). 
First, in determining the petitioner's ability to pay the proffered wage during a given period, Citizenship & 
Immigration Services (CIS) will examine whether the petitioner employed and paid the beneficiary during 
that period. If the petitioner establishes by documentary evidence that it employed the beneficiary at a salary 
equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. In the instant case, the petitioner has not established that it 
employed and paid the beneficiary the full proffered wage from the priority date of April 30, 2001. On Form 
ETA 750B, signed by the beneficiary on April 28, 2001, the beneficiary did not claim to have worked for the 
petitioner. We note, however, that the beneficiary's G-325 form filed with the beneficiary's adjustment 
application on April 22, 2004, does indicate that the beneficiary worked (without status) for the petitioner 
since January 2001, and has filed an 1-485 on the basis of eligibility under section 245(i) of the Act. The 
record contains no evidence of any wage payments made by the petitioner to the beneficiary in those years. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return. 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. Suva, 
Page 4 
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. Texas 1989); K. C.P. 
Food Co., Inc. v. Suva, 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 571 (7th Cir. 1983). 
In the case at hand, the evidence indicates that the petitioner is a C corporation. The record contains copies of the 
petitioner's Form 1120 U.S. Corporation Income Tax Returns for the years 2001, and 2002. The record before 
the Director closed on April 28, 2004. The petitioner did not submit its 2003 Federal Tax Return, although 
presumably if timely filed, the petitioner could have done so. 
For a C corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of Form 1120 U.S. Corporation Income Tax Return, or the 
equivalent figure on line 24 of the Form 1 120-A U.S. Corporation Short Form Tax Return. 
The petitioner's tax returns state amounts for taxable income on line 28 as shown below. 
Tax year 
 Net income or (loss) 
200 1 $75,833 
2002 -$305 
The petitioner's net income might allow for payment of the beneficiary's wage of $2 1,049.60 in 2001, but not 
in 2002. The petitioner therefore cannot demonstrate its continuing ability to pay the wage from the priority 
date of April 28, 2001, until the beneficiary obtains lawful permanent residence. 
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 the difference between the petitioner's current assets 
and current liabilitie~.~ 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, and evidences the petitioner's ability to pay. The net current assets are expected to be 
converted to cash as the proffered wage becomes due. 
Following this second analysis, the petitioner's Federal Tax Return similarly shows that the petitioner lacks 
the ability to pay the required wage. 
The petitioner's net current assets during 2001 were -$44,332. 
The petitioner's net current assets during 2002 were -$54,738. 
Under this method of evaluation, the petitioner has failed to establish its ability to pay the proffered wage of 
$2 1,049.60 from the priority date until the beneficiary obtains lawful permanent residence, as the petitioner 
did not have sufficient net current assets to pay the wage. 
2 
According to Barron S Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U.S. Department of Labor, 
April 28, 2001, to the present, the petitioner had not established that it had the continuing ability to pay the 
beneficiary the proffered wage. The petitioner fails this test under an examination of wages paid to the 
beneficiary (no evidence), its net income (insufficient, except for 2001), or net current assets (insufficient for 
both years of tax returns provided). 
Counsel asserts in his brief accompanying the appeal that the petitioner's gross receipts should be considered 
in its ability to pay the proffered wage from the priority date. Reliance on the petitioner's gross sales and 
profits and wage expense is misplaced. Showing that the petitioner's gross sales and profits exceeded the 
proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered 
wage is insufficient. In K.C.P. Food Co., Inc. v. Suva, 623 F. Supp. at 1084, 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. The court 
specifically rejected the argument that the Service should have considered income before expenses were paid 
rather than net income. Counsel's assertions on appeal cannot be concluded to outweigh the evidence 
presented in the tax returns as submitted by the petitioner that demonstrates that the petitioner could not pay 
the proffered wage from the day the Form ETA 750 was accepted for processing by the Department of Labor 
until the beneficiary obtains permanent residence. 
Counsel also asserts that under 0 'Conner v. Attorney General of the United States, 1987 WL 18243 (D.Mass. 
1987), that the employer's entire financial circumstances should be considered. However, the O'Conner case 
is distinguishable since O'Conner dealt with a sole proprietorship, and not a corporation. The O'Conner case 
also discusses In re Sonegawa, 12 I & N Dec. 612 (1967), where evidence was provided to show that the 
petitioner had sustained significant expenses in one year related to the relocation of the business, and an 
increase in rent, which accounted for the petitioner's decrease in ability to pay the required wages. The 
petitioner in Sonegawa also provided magazine articles, which helped to establish the petitioner's reputation, 
and potential future growth. Counsel, here, has not provided any evidence to show any large one time 
incident impacting the business' finances, or other factor which previously impacted its ability to pay the 
prevailing wage. Additionally, by reviewing the petitioner's net income, as well as the petitioner's net current 
assets, the petitioner's financial status has been fairly considered. 
Counsel additionally contends that, alternatively, if the AAO does not sustain the appeal in favor of the 
petitioner based on the evidence submitted, that the case should be remanded for further consideration of the 
petitioner's ability to pay the proffered wage. Counsel bases this argument on the fact that the May 4 Yates 
Memo, which allowed for the denial of a petition without the need to send a request for additional evidence, 
was later rescinded by the Yates Memo of February 16, 2005. A remand in this case would not be necessary 
since the record of proceeding contains all required regulatory prescribed evidence, and the evidence 
presented demonstrates that the petitioner lacks the ability to pay the proffered wage under both the net 
income, and also the net current assets tests. 
Further, although not raised in the director's denial, we find that the petitioner also failed to establish the 
beneficiary's qualifications based on the certified ETA 750. An application or petition that fails to comply 
with the technical requirements of the law may be denied by the AA0 even if the Service Center does not 
identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 
229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
Page 6 
In evaluating the beneficiary's qualifications, CIS must look to the job offer portion of the alien labor 
certification to determine the required qualifications for the position. CIS may not ignore a term of the labor 
certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 
I&N Dec. 401, 406 (Comrn. 1986). See also, Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. 
Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. 
Coomey, 661 F.2d 1 (1" Cir. 1981). A labor certification is an integral part of this petition, but the issuance of a 
Form ETA 750 does not mandate the approval of the relating petition. To be eligble for approval, a beneficiary 
must have all the education, training, and experience specified on the labor certification as of the petition's 
priority date. 8 C.F.R. 9 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg. Comm. 1977); Matter of Katigbak, 14 I. & N. Dec. 45,49 (Reg. Comm. 197 1). The priority date 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. 9 204.5(d). The priority date in the instant petition is April 30,2001. 
On the Form ETA 750A, the "job offer" states that the position requires two years of experience in the job 
offered, as a cook, with job duties including preparing, seasoning, and cooking seafood menu items, or 
alternatively, two years in the related occupation as a Restaurant Cook, or in a related occupation. The 
petitioner listed no other educational requirements in Section 14, and listed no other special requirements for 
the position in Section 15. 
On the Form ETA 750B, signed by the beneficiary 
 2001, the beneficiary listed only one prior 
employer relevant to the position, her employment wit 
 Restaurant in Novosibirsk, Russia. She lists 
her dates of employment as May 1993 to October 1996. No other prior related experience was listed. The 
ETA 750 was certified by the Department of Labor on July 17,2003. 
At the 1-140 stage, as evidence of prior experience, the petitioner submitted two letters to document the 
beneficiary's prior work as required by 8 C.F.R. 9 204.5(1)(3).~ The petitioner submitted a letter which 
indicated that the beneficiary had worked at estaurant, Novosibirsk, as a "6 grade cook" from 
July 1994 to April 1996. 
 While this 
 on the Form ETA 750, the dates for the 
8 C.F.R. 9 204.5(1)(3) provides: 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. If the petition is for a slulled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
4 
 The submitted translation of the beneficiary's work experience did not comply with the terms of 8 C.F.R. 8 
103.2(b)(3): 
experience verified in the letter conflicts with the dates listed on the ETA 750 (May 1993 to October 1996). 
Based on thetter, the beneficiary would lack the re ired two years of experience as a cook, as 
the letter submitted only indicates that the UURestaurant from July 1994 to April 
1996. The experience documented by the etter would result in the beneficiary lacking, depending 
upon the exact month and day for the start and end date, two or more months of the required twenty four 
The petitioner also submitted a second letter that notes that the beneficiary worked as a 
Novosibirsk, from May 1997 to August 2000.' The beneficiary's experience with 
isted on the signed Form ETA 750B. This omission of experience, in addition to the 
discrepancy in the experience listed compared to the documented 
I 
experience, raises 
concerns. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988), which states: 
 raised on any aspect of 
the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition." Further, "It is incumbent on the petitioner to resolve any 
inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies will not suffice." 
Matter of Ho, 19 I&N Dec. at 591-592. See further Matter of Leung, 16 I&N Dec. 2530 (BIA 1976), where 
the Board's dicta notes that the beneficiary's experience, without such fact certified by DOL on the 
beneficiary's Form ETA 750B lessens the 
 evidence and facts asserted. Matter of Leung 
would, therefore, preclude consideration of the 
 letter submitted with the 1-140 Petition, but not 
listed on the certified Form ETA 750B. 
Based on the foregoing, the petitioner has failed to establish that it has the ability to pay the beneficiary the 
required wage from the priority date until the time of adjustment. Further, the record does not demonstrate 
that the beneficiary meets the position's experience requirements certified on the Form ETA 750. 
Accordingly, the petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has 
not been met. 
ORDER: The appeal is denied. 
Translations. Any document containing foreign language submitted to [CIS] shall be 
accompanied by a full English language translation which the translator has certified as 
complete and accurate, and by the translator's certification that he or she is competent to 
translate from the foreign language into English. 
In the present case, the translator failed to certify that the translation is complete and accurate, and that she is 
competent to translate from the foreign language in question into English. 
The second submitted translation is similarly defective as noted above in footnote 3.