dismissed EB-3 Case: Culinary

identifying data deleted to 
prevent cleat , mwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 04 132 52399 Office: CALIFORNIA SERVICE CENTER Date: MAY 0 4 2006 
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. $ 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 
WAC 04 132 52399 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is an Italian restaurant. It seeks to employ the beneficiary permanently in the United States as a 
cook, Italian style. As required by statute, the petition is accompanied by a Form ETA 750, Application for 
Alien Employment Certification, approved by the U. S. Department of Labor. The director determined that 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage 
beginning on the priority date of the visa petition. The director denied the petition accordingly. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(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 at 8 C.F.R. 9 204.5(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 regulation at 8 CFR 9 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled workers, professionals, or 
other workers must be supported by letters from trainers or employers gving 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 skilled 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. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. The petitioner must 
also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750 
Application for Alien Employment Certification as certified by the U.S. Department of Labor and submitted with 
the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). 
Here, the Form ETA 750 was accepted on February 4, 1999. The proffered wage as stated on the Form ETA 
750 is $17.85 per hour ($37,128.00 per year). The Form ETA 750 states that the position requires three years 
experience. 
WAC 04 132 52399 
Page 3 
On appeal, counsel submits a legal brief and additional evidence. 
With the petition, former counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; and, copies of 
documentation concerning the beneficiary's qualifications as well as other documentation. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. 5 204.5(g)(2), the director requested on August 7,2004, pertinent evidence of the petitioner's ability to pay 
the proffered wage beginning on the priority date. The director requested the petitioner's U.S. federal tax returns, 
annual reports or audited financial statements for 1999,2000,200 1,2002 and 2003. Also, the director requested 
California Employment Development Department (EDD) Form DE-6, Quarterly Wage Reports for all employees 
for the last four quarters that were accepted by the State of California. The forms should include the names, 
social security numbers and number of weeks worked for all employees." 
In response to the request for evidence of the petitioner's ability to pay the proffered wage beginning on the 
priority date, petitioner submitted the above. 
The director denied the petition on November 12, 2004, finding that the evidence submitted did not establish 
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, counsel asserts that the petitioner has established the ability to pay the proffered wage. Counsel 
asserts that Matter of Sonegawa, applies under the evidence presented. Also, counsel asserts that the "historical 
track record of profitability," cash on hand, officer's compensation, and expectations of profits all evidence the 
ability to pay the proffered wage. 
Counsel has submitted the following documents to accompany the appeal statement: a letter from the owner 
of petitioner; a bank statement; an appraisal report; payments to corporate officers; a compiled financial 
statement; and, the ranking of the petitioner's business. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and 
Immigration Services (CIS) will first 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. Evidence was submitted to show that the petitioner employed 
the beneficiary. The petitioner paid the beneficiary $7,708.75 in 2003; $13,864.25 in 2002; $17,837.25 in 
2001; $21,913.95 in 2000; and, $4,768.00 in 1999. The petitioner has not paid the proffered wage of 
$37,128.00 per year. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will examine the net 
income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or 
other expenses. 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. Elafos Restaurant Corp. v. Sava, 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. Sava, 623 F.Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F.Supp. 647 (N.D. Ill. 1982), affd, 703 
F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Znc. v. Sava, the court held that the Service had properly relied 
WAC 04 132 52399 
Page 4 
on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, rather than the 
petitioner's gross income. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered income before expenses were paid rather than net income. Finally, no precedent exists that would 
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang 
v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054. 
The tax returns' demonstrated the following financial information concerning the petitioner's ability to pay 
the proffered wage of $37,128.00 per year from the priority date of February 4, 1999: 
In 1999, the Form 1 120 stated a taxable income loss2 of <$63,995.00>~. 
In 2000, the Form 1120 stated a taxable income loss of <$12,703.00>. 
In 2001, the Form 1 120 stated a taxable income loss of <$41,206.00>. 
In 2002, the Form 1120 stated a taxable income loss of <$8,356.00>. 
In 2003, the Form 1 120 stated taxable income of $23,618.00. 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage at any time between the years 1999 through 2003 for which the petitioner's tax returns 
are offered for evidence. 
CIS will consider net current assets as an alternative method of demonstrating the ability to pay the proffered 
wage. Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120 federal tax return. The petitioner's year-end 
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal 
to or greater than the proffered wage, 'the petitioner is expected to be able to pay the proffered wage. 
Examining the Form 1120 U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each of 
those returns indicates the following: 
In 1999, petitioner's Form 1120 return stated current assets of $9,919.00 and $1 15,380.00 in current 
liabilities. Therefore, the petitioner had <$105,461.00> in net current assets. Since the proffered 
wage is $37,128.00 per year, this sum is less than the proffered wage. 
In 2000, petitioner's Form 1120 return stated current assets of $3,000.00 and $109,279.00 in current 
liabilities. Therefore, the petitioner had <$106,279.00> in net current assets. Since the proffered 
wage is $37,128.00 per year, this sum is less than the proffered wage. 
1 
 The petitioner's taxable year is April 1 to March 3 1st. 
IRS Form 1120, Line 28. 
The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
4 
 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
WAC 04 132 52399 
Page 5 
In 2001, petitioner's Form 1120 return stated current assets of $8,844.00 and $63,655.00 in current 
liabilities. Therefore, the petitioner had <$54,8 1 1.00> in net current assets. Since the proffered wage 
is $37,128.00 per year, this sum is less than the proffered wage. 
In 2002, petitioner's Form 1120 return stated current assets of $25,837.00 and $63,956.00 in current 
liabilities. Therefore, the petitioner had <$38,113.00> in net current assets. Since the proffered wage 
is $37,128.00 per year, this sum is less than the proffered wage. 
In 2003, petitioner's Form 1120 return stated current assets of $36,724.00 and $53,260.00 in current 
liabilities. Therefore, the petitioner had <$17,000.00> in net current assets. Since the proffered wage 
is $37,128.00 per year, this sum is less than the proffered wage. 
Therefore, for the period 1999 through 2003 from the date the Form ETA 750 was accepted for processing by 
the U. S. Department of Labor, the petitioner had not established that it had the ability to pay the beneficiary 
the proffered wage at the time of filing through an examination of its net current assets. 
Counsel asserts in his brief accompanying the appeal that there are other ways to determine the petitioner's 
ability to pay the proffered wage from the priority date. According to regulation,' copies of annual reports, 
federal tax returns, or audited financial statements are the means by which petitioner's ability to pay is 
determined. 
The petitioner's owner in his letter dated December 14, 2004, stated that officer compensation and payments 
made noted on the tax returns as loans to shareholders are evidence that the petitioner has the ability to pay 
the proffered wage. The petitioner noted payments were made to the shareholders 1999 to 2002 to buy out the 
other shareholders' interests in the petitioner. These payments are not probative of the ability to pay the 
proffered wage. The funds used for the buy-outs are not available to pay the proffered wage. Further, the 
amount of officer compensation was not much greater than the proffered wage. That the officers would have 
accepted the remainder as compensation for their investment and efforts is not reasonable to believe. Such a 
premise needs to be established by competent evidence, and it does not exist in the record of proceeding. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). The officers receiving the compensation were not the sole 
owner/stockholder or majority owner/stockholder, as the current sole shareholder stated that he bought the 
other shareholders out over a period of six years. The totality of other information in the record, principally 
the tax returns above examined, does not support the fact that the petitioner is a profitable enterprise. 
Counsel asserts that Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), applies under the evidence presented. 
Counsel contends that the "historical track record of profitability," cash on hand, and expectations of profits all 
evidence the ability to pay the proffered wage. Counsel includes among her contentions cash stated on 
Schedule "L" of the tax returns submitted. Correlating the cash amounts stated in counsel's contention with 
the petitioner's tax return for each year, it is clear that counsel is suggesting combining petitioner's taxable 
income each year with the cash also received by the business for that year as stated on Schedule "L" as 
current assets. CIS will consider separately, but not in combination, the taxable income and the net current 
assets of a business to determine the ability of a petitioner to pay the proffered wage on the priority date. To 
do so would be duplicative of petitioner's taxable income. Also, on Schedule "L" it is the net current asset 
figure that is important as calculated above. Again, counsel is disregarding the use of Schedule "L", that it is 
8 C.F.R. 8 204.5(8)(2). 
WAC 04 132 52399 
Page 6 
a balance sheet that shows both current assets and current liabilities. Therefore, the cash and other current 
assets are reduced as is calculated above to reach the net current asset figure. 
In the totality of all the evidence submitted in this case, there is evidence to demonstrate that the petitioner's 
business was in an unprofitable period in 1999, 2000, 2001, 2002, and, insufficiently profitable in tax year 
2003 to pay the proffered wage. For the four years examined years 1999 through 2002, there was a taxable 
income loss in each year of <$63,995.00>, <$12,703.00>, <$41,206.00>, and <$8,356.00>. For 2003 the 
petitioner made $23,618.00 in profit that is insufficient to pay the proffered wage. The net current asset 
values for those years is consistently negative, <$105,461.00>, <$106,279.00>, <$54,811.00>, <$38,113.00>, 
and, <$17,000.00. 
Matter of Sonegawa, Supra. relates to petitions filed during uncharacteristically unprofitable or difficult years 
but only in a framework of profitable or successful years. The petitioning entity in Sonegawa had been in 
business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in 
which the petition was filed in that case, the petitioner changed business locations and paid rent on both the 
old and new locations for five months. There were large moving costs and also a period of time when the 
petitioner was unable to do regular business. The Regional Commissioner determined that the petitioner's 
prospects for a resumption of successful business operations were well established. The petitioner was a 
fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss 
Universe, movie actresses, and society matrons. The petitioner's clients had been included in the lists of the 
best-dressed California women. The petitioner lectured on fashion design at design and fashion shows 
throughout the United States and at colleges and universities in California. The Regional Commissioner's 
determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding 
reputation as a couturiere. 
Unusual and unique circumstances have not been shown to exist in this case to parallel those in Sonegawa, to 
establish that the period examined was an uncharacteristically unprofitable period for the petitioner. Counsel 
asserts that there is an expectation of business profits but the evidence submitted for five years of operations does 
not support this statement. By the evidence presented, the petitioner has not proven its ability to pay the 
proffered wage. 
The petitioner states that he is willing to use his personal assets, and attaches the appraisal of his residence 
and personal bank savings to pay the proffered wage. Contrary to counsel's primary assertion, CIS may not 
"pierce the corporate veil7' and look to the assets of the corporation's owner to satisfy the corporation's ability 
to pay the proffered wage. It is an elementary rule that a corporation is a separate and distinct legal entity 
from its owners and shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite 
Investments, Ltd., 17 I&N Dec. 530 (Cornm. 1980), and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. 
Comm. 1980). Consequently, assets of its shareholders or of other enterprises or corporations cannot be 
considered in determining the petitioning corporation's ability to pay the proffered wage. See Matter of 
Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980). In a similar case, the court in Sitar v. Ashcroft, 
2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. fj 204.5, 
permits [CIS] to consider the financial resources of individuals or entities who have no legal obligation to pay 
the wage." 
Counsel has submitted a compiled financial statement as of August 31, 2004 for the business to show the 
ability to pay the proffered wage. A compilation is limited to presenting in the form of financial statements 
information that is the representation of management. An audit is conducted in accordance with generally 
accepted auditing standards to obtain reasonable assurance whether the financial statements of the business 
WAC 04 132 52399 
Page 7 
are free of material misstatement. A review is a financial statement between an audit and a compilation. 
Reviews are governed by the AICPA's (American Institute of Certified Public Accountants) Statement on 
Standards for Accounting and Review Services (SSARS) No.1. Accountants only express limited assurances 
in reviews. A compilation is the management's representation of its financial position. Evidence of the ability 
to pay shall be, inter alia, in the form of copies of audited financial statements with a declaration of the maker 
indicating their manner of preparation and certifying the financial statements to be audited. Non-audited 
financials have limited evidentiary weight in CIS deliberations in these matters. The statements presented 
were not audited. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the five corporate tax 
returns as submitted by petitioner that shows that the petitioner has not demonstrated its ability to pay the 
proffered wage from the day the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.