dismissed EB-3 Case: Culinary

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacj 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
 1% 
FILE: EAC 02 276 53 104 Office: VERMONT SERVICE CENTER Date: 
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. § 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Ths 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. Wiemam, Director 
Administrative Appeals Office 
EAC 02 276 53104 
Page 2 
DISCUSSION: The Acting Director, Vermont Service Center, denied the preference visa. The Administrative 
Appeals Office (AAO) dismissed a subsequent appeal, affirming the director's decision. The matter is now before 
the AAO on a motion to reconsider. The motion will be granted. The previous decisions of the director and 
AAO will be affirmed. The petition will be denied. 
The regulation at 8 C.F.R. tj 103.5(a)(l)(i) provides that the affected party must file a motion within 30 days 
of the issuance of the decision that the motion seeks to have reopened or reconsidered, except that the failure 
to timely file may be excused where it is demonstrated that the delay was reasonable and beyond the control 
of the petitioner. 
The record indicates that the AAO issued its decision on April 29,2005. The director properly gave notice to 
the petitioner that it had 30 days to file the appeal. Citizenship and Immigration Services (CIS) received the 
instant motion on June 27, 2005, 59 days after the decision was issued. Accordingly, the motion was 
untimely filed. 
In the instant case, however, counsel submitted, with the motion, evidence showing that an appeal brief was 
previously submitted within the allotted time, which brief ths office failed to consider on appeal. The AAO 
will exercise its discretion to consider the late motion and the brief. 
The petitioner is a restaurant. It seeks classification of the beneficiary pursuant to section 203(b)(3) of the 
Immigration and Nationality Act, 8 U.S.C. tj 1153(b)(3), and it seeks to employ the beneficiary permanently in 
the United States as a cook. The director determined that the petitioner had not established that it has had the 
continuing ability to pay the proffered wage beginning on the priority date, and denied the petition accordingly. 
The AAO affirmed that decision, dismissing the appeal. 
The procedural history of this case is documented in the record and incorporated into the decision. Further 
elaboration of the procedural history will be made only as necessary. As set forth in the director's decision of 
denial the sole issue in this case is whether or not the petitioner has demonstrated the continuing ability to pay 
the proffered wage beginning on the priority date. 
The regulation at 8 C.F.R. tj 103.5(a)(2) states, in pertinent part, "Requirements for motion to reopen. A 
motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by 
affidavits or other documentary evidence." 
The regulation at 8 C.F.R. tj 103.5(a)(3) states: 
Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and 
be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or Service policy. A motion to reconsider a decision on an application or petition must, 
when filed, also establish that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
EAC 02 276 53104 
Page 3 
The instant motion qualifies as a motion to reopen because counsel provided new evidence. The motion qualifies 
as a motion to reconsider because, in the brief, counsel asserts that the director incorrectly applied the pertinent 
law. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153@)(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 or seasonal nature, for which qualified workers are unavailable in the United 
States. 
The regulation at 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 petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, the day 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. 5 204.5(d). Here, the Form ETA 750 was accepted for processing on 
April 5, 2001. The proffered wage as stated on the Form ETA 750 is $14.96 per hour, which equals 
$3 1,116.80 per year. 
On the petition, which was submitted on September 12, 2002, the petitioner stated that it was established on 
February 17, 1995. The petitioner did not state the number of workers it employs, its gross annual income, or 
its net annual income in the spaces provided for those statistics. On the Form ETA 750, Part B, signed by the 
beneficiary on March 30, 2001, the beneficiary did not claim to have worked for the petitioner. Both the 
petition and the Form ETA 750 indicate that the petitioner would employ the beneficiary in Jackson Heights, 
New York. 
In the instant case the record contains (1) copies of the petitioner's 2000, 2001, and 2002 Form 1120, U.S. 
Corporation Income Tax Returns, (2) copies of what purport to be the petitioner's amended 2001 and 2002 
Form 1120, U.S. Corporation Income Tax Returns, and (3) a copy of the petitioner's 2002 W-3 transmittal. 
The record does not contain any other evidence relevant to the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date. 
The petitioner's tax returns show that it is a corporation, that it incorporated on February 17, 1995, and that it 
reports taxes pursuant to cash convention accounting and a fiscal year running from June 1 of the nominal 
year to May 3 1 of the' following year. 
EAC 02 276 53 104 
Page 4 
During its 2000 fiscal year, which began on June 1,2000 and ended on May 3 1,2001, the petitioner declared 
taxable income before net operating loss deductions and special deductions of $3,947. At the end of that 
fiscal year the petitioner's current liabilities exceeded its current assets. 
During its 2001 fiscal year, which began on June 1,2001 and ended on May 3 1,2002, the petitioner declared 
taxable income before net operating loss deductions and special deductions of $2,650. At the end of that 
fiscal year the petitioner's current liabilities exceeded its current assets. 
During its 2002 fiscal year, which began on June 1,2002 and ended on May 3 1,2003, the petitioner declared 
taxable income before net operating loss deductions and special deductions of $4,026. At the end of that 
fiscal year the petitioner's current liabilities exceeded its current assets. 
The petitioner's 2002 W-3 transmittal shows that it paid total wages of $54,870 during that year. 
The director denied the petition on December 6, 2003. The petitioner's appeal from that decision was 
dismissed on April 29,2005. 
On the motion, counsel submitted the amended returns mentioned above.' Counsel noted that those amended 
returns show that the petitioner paid Schedule A, Line 3, Cost of Labor of $30,000 during both 2001 and 2002 
that was not shown on its original tax returns. Counsel stated that the $30,000 was paid for the services of 
non-employee contract cooks and could have been used to pay the wage proffered in the instant case. 
Counsel provided no evidence that the petitioner paid that amount for contract cooks during those years. 
The assertions of counsel are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980); 
Unsupported assertions of counsel are, therefore, insufficient to sustain the burden of proof. 
In a previous letter dated August 26, 2003 counsel indicated that the petitioner's depreciation deductions and 
its assets, including depreciable assets and cash on hand, should be considered in assessing the petitioner's 
continuing ability to pay the proffered wage beginning on the priority date. 
Counsel's argument that the petitioner's depreciation deduction should be included in the calculation of its 
ability to pay the proffered wage is unconvincing. 
Ths office is aware that a depreciation deduction does not require or represent a specific cash outlay during 
the year claimed. It is a systematic allocation of the cost of a tangible long-term asset. It may be taken to 
represent the diminution in value of buildings and equipment, or to represent the accumulation of funds 
necessary to replace perishable equipment and buildings. But the cost of equipment and buildings and the 
1 
 Actually, counsel submitted evidence showing that he submitted those amended returns prior to the 
adjudication of the appeal. Those returns were not then in the record, however, and were not considered on 
appeal. 
EAC 02 276 53104 
Page 5 
value lost as they deteriorate are actual expenses of doing business, whether they are spread over more years 
or concentrated into fewer. 
This deduction represents the use of cash during a previous year, whch cash the petitioner no longer has to 
spend. No precedent exists that would allow the petitioner to add its depreciation deduction to the amount 
available to pay the proffered wage. See Chi-Feng Chang v. Thornburgh, 71 9 F.Supp. 532 (N.D. Texas 1989). 
See also Elatos Restaurant Corp. v. Suva, 632 F.Supp. 1049 (S.D.N.Y. 1985). The petitioner's election of 
accounting and depreciation methods accords a specific amount of depreciation expense to each given year. 
The petitioner may not now shift that expense to some other year as convenient to its present purpose, nor 
treat it as a fund available to pay the proffered wage. 
Further, amounts spent on long-term tangible assets are a real expense, however allocated. Although counsel 
asserts that they should not be charged against income according to their depreciation schedule, he does not 
offer any alternative allocation of those costs.2 Counsel appears to be asserting that the real cost of long-term 
tangible assets should never be deducted fiom revenue for the purpose of determining the funds available to 
the petitioner to pay additional wages. Such a scenario is unacceptable. 
The amended returns are different fiom the original returns in two ways. They indicate that the petitioner paid 
$30,000 in Cost of Labor during both its 2001 and 2002 fiscal years, which the original returns did not. They 
also show an additional $30,000 in gross receipts each year. The remainder of the returns, including the 
taxable income before net operating loss deductions and special deductions shown, is unchanged. Counsel 
offered no explanation of how the petitioner neglected to include its labor costs on its original returns, nor of 
how it came to understate its gross receipts by the exact same amount. 
Counsel submitted no Form 1120X amended return forms or any other indication that the amended returns 
were submitted to IRS. Absent any indication that they were submitted to IRS, those forms have little 
evidentiary value. 
Even if the returns were shown to have been submitted to IRS, the circumstances of this amendment, showing 
payment of labor costs just sufficient, when added to the petitioner's slight profits during the salient years, are 
sufficiently suspicious that this office would not consider the petitioner's newly reported labor costs without 
additional evidence that the amount shown was actually paid for non-employee cooks during the salient years. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will examine 
whether the petitioner employed 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 did not establish that it employed and paid the beneficiary. 
2 
 Counsel did not urge, for instance, that the petitioner's purchase of long-term assets should be expensed 
during the year of purchase, rather than depreciated, for the purpose of calculating the petitioner's ability to 
pay additional wages, nor did he submit a schedule of the petitioner's purchases of long-term tangible assets 
during the salient years. 
EAC 02 276 53 104 
Page 6 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during a given period, the AAO will, in addition, examine the net income figure reflected on 
the petitioner's federal income tax return, without consideration of depreciation or other expenses. CIS may 
rely on federal income tax returns to assess a petitioner's ability to pay a proffered wage. Elatos 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). See also 8 C.F.R. fj 204.5(g)(2). 
Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, showing 
that the petitioner paid total wages in excess of the proffered wage is insufficient. In K.C.P. Food Co., Inc. v. 
Sava, 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 CIS should have 
considered income before expenses were paid rather than net income. 
The petitioner's net income is not the only statistic that may be used to show the petitioner's ability to pay the 
proffered wage. If the petitioner's net income, if any, during a given period, added to the wages paid to the 
beneficiary during that period, if any, do not equal the amount of the proffered wage or more, the AAO will 
review the petitioner's assets as an alternative method of demonstrating the ability to pay the proffered wage. 
The petitioner's total assets, however, are not available to pay the proffered wage. The petitioner's total 
assets include those assets the petitioner uses in its business, which will not, in the ordinary course of 
business, be converted to cash, and will not, therefore, become hnds available to pay the proffered wage. 
The petitioner's depreciable assets would typically be among the assets the petitioner needs to continue in 
business. 
Only the petitioner's current assets -- the petitioner's year-end cash and those assets expected to be consumed 
or converted into cash withn a year -- may be considered. Further, the petitioner's current assets cannot be 
viewed as available to pay wages without reference to the petitioner's current liabilities, those liabilities 
projected to be paid within a year. CIS will consider the petitioner's net current assets, its current assets, 
including its year-end cash on hand, net of its current liabilities, in the determination of the petitioner's ability 
to pay the proffered wage. 
Current assets include cash on hand, inventories, and receivables expected to be converted to cash or cash 
equivalent within one year. Current liabilities are liabilities due to be paid within a year. On a Schedule L the 
petitioner's current assets are typically found at lines l(d) through 6(d). Year-end current liabilities are 
typically3 shown on lines 16(d) through 18(d). 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. The net current assets are expected to be converted to cash as the proffered wage becomes due. 
The proffered wage is $3 1,116.80 per year. 
 The priority date is April 5, 200 1, which fell within the 
petitioner's 2000 fiscal year. 
- 
3 
 The location of the taxpayer's current assets and current liabilities varies slightly from one version of the 
Schedule L to another. 
EAC 02 276 53 1 04 
Page 7 
During its 2000 fiscal year the petitioner declared taxable income before net operating loss deductions and 
special deductions of $3,947. That amount is insufficient to pay the annual amount of the proffered wage. At 
the end of that fiscal year the petitioner had negative net current assets. The petitioner is unable, therefore, to 
demonstrate the ability to pay any portion of the proffered wage out of its net current assets during that year. 
The petitioner has not shown that any other funds were available to it during its 2000 fiscal year with which it 
could have paid the proffered wage. The petitioner has not demonstrated that it was able to pay the proffered 
wage during its 2000 fiscal year. 
During its 2001 fiscal year the petitioner declared taxable income before net operating loss deductions and 
special deductions of $2,650. That amount is insufficient to pay the annual amount of the proffered wage. At 
the end of that fiscal year the petitioner had negative net current assets. The petitioner is unable, therefore, to 
demonstrate the ability to pay any portion of the proffered wage out of its net current assets during that year. 
The petitioner has not shown that any other funds were available to it during its 2001 fiscal year with which it 
could have paid the proffered wage. The petitioner has not demonstrated that it was able to pay the proffered 
wage during its 2001 fiscal year. 
During its 2002 fiscal year the petitioner declared taxable income before net operating loss deductions and 
special deductions of $4,026. That amount is insufficient to pay the annual amount of the proffered wage. At 
the end of that fiscal year the petitioner had negative net current assets. The petitioner is unable, therefore, to 
demonstrate the ability to pay any portion of the proffered wage out of its net current assets during that year. 
The petitioner has not shown that any other funds were available to it during its 2002 fiscal year with which it 
could have paid the proffered wage. The petitioner has not demonstrated that it was able to pay the proffered 
wage during its 2002 fiscal year. 
The petition in this matter was submitted on September 12, 2002. On that date the petitioner's fiscal year 
2003 tax return was unavailable. The service center issued a request for evidence in this matter on June 3, 
2003, requesting additional evidence of the petitioner's continuing ability to pay the proffered wage 
beginning on the priority date. On that date the petitioner's fiscal year 2003 tax return was still una~ailable.~ 
The petitioner is excused from demonstrating its ability to pay the proffered wage during its 2003 fiscal year 
and subsequent fiscal years. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during its 2000,2001, and 
2002 fiscal years. Therefore, the petitioner has not established that it had the continuing ability to pay the 
proffered wage beginning on the priority date. The petition was correctly denied on that basis, which has not 
been overcome on appeal or on motion. 
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.C. 
5 136 1. The petitioner has not met that burden. 
ORDER: 
 The motion is granted. The AA07s decision of April 29, 2005 is affmed. The petition is 
denied. 
4 
 The petitioner's 2003 fiscal year ended May 3 1,2004.