dismissed EB-3 Case: Culinary

U.S. Department of Ifomeland Security 
20  ass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
-. . - 
Sb 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
,I . 
 Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
I_ 
the office that originally decided your case. 
 furiher 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 Director, Vermont Service' Center, and is 
now before the Administrative Appeals Office (AAO) 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, specialty foreign food. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, accompanied the petition. 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 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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original February 2, 2005 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawll permanent residence. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. 8 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 slulled labor (requiring at least two years training or experience), not of a temporary 
or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 8 204.5(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. In a case where the prospective United States employer employs 100 or more 
workers, the director may accept a statement from a financial officer of the organization 
which establishes the prospective employer's ability to pay the proffered wage. In 
appropriate cases, additional evidence, such as profit/loss statements, bank account records, 
or personnel records, may be submitted by the petitioner or requested by [Citizenship and 
Immigration Services (CIS)]. 
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 was accepted for processing by any office within the employment 
system of the Department of Labor. See 8 CFR 9 204.5(d). The priority date in the instant petition is July 18, 
2001. The proffered wage as stated on the Form ETA 750 is $1 1.47 per hour or $23,857.60 annually. 
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. Relevant evidence submitted on 
1 
 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. 5 103.2(a)(l). The record in the instant case 
appeal includes counsel's 'statement and an unsworn affidavit from the petitioner's owner. Other Relevant 
evidence includes copies of the petitioner's 2000 through 2003 Forms 1120S, U.S. Income Tax Returns for an S 
Corporation. The record does not contain any other evidence relevant to the petitioner's ability to pay the 
proffered wage. 
The petitioner's 2000 through 2003 Forms 1120s reflect ordinary incomes or net incomes of $31,443, -$7,682, 
-$2,112, and $13,910, respectively. The petitioner's 2000 through 2003 Forms 1120s also reflect net current 
assets of $34,986, $10,315, $277, and $9,847, respectively. 
 , 
The owner's unsworn affidavit states that the petitioner has been open for over thlrty years and has been 
successful, with the exception of 2001 and 2002. The owner contends that hs anomaly is due to circumstances 
beyond the petitioner's control, mainly the "911 1" terrorist attacks. However, the owner also claims that during 
those years, the petitioner continued the employment of its employees including payment of the employees' 
salaries. 
On appeal, counsel states that the director's denial was in error as it failed to take into account the unique and 
unforeseen circumstances of the "911 1" terrorist attack which substantially affected the petitioner's' financial 
circumstances in 200 1. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date 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. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate hancial resources sufficient 
to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning 
business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 
612 (Reg. Cornm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be consideredprima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on May 23, 2001, the beneficiary claims to 
have been employed by the petitioner from November 2000 to the present. However, counsel has not 
provided any Forms W-2, Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, issued by 
the petitioner for the beneficiary indicating that the petitioner employed the beneficiary in 2000 through 2003. 
Therefore, the petitioner has not established that it employed the beneficiary in 2000 through 2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, CIS will next 
examine the petitioner's net income figure as 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. Elatos 
Restaurant Corp. v. Suva, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
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). 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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), af'd., 703 F.2d 57 1 (7'h Cir. 1983). In K. C.P. Food Co., Inc., the court held that 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. 623 F.Supp at 1084. The court specifically rejected the argument that 
CIS should have considered income before expenses were paid rather than net income. Finally, there is no 
precedent that would allow the petitioner to "add back to net cash the depreciation expense charged for the year." 
See also Elatos Restaurant Corp., 632 F. Supp. at 1054. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. If the net income the petitioner demonstrates it had available during that 
period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of 
the proffered wage or more, CIS will review the petitioner's assets. The petitioner's total assets include 
depreciable assets that the petitioner uses in its business. Those depreciable assets will not be converted to 
cash during the ordinary course of business and will not, therefore, become funds available to pay the 
proffered wage. Further, the petitioner's total assets must be balanced by the petitioner's liabilities. 
Otherwise, they cannot properly be considered in the determination of the petitioner's ability to pay the 
proffered wage. Rather, 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 liabilities.* 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its 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 out of those net 
current assets. The petitioner's net current assets in 2000 through 2003 were $34,986, $10,315, $277, and 
$9,847, respectiveli. The petitioner could not have paid the proffered wage of $23,857.60 in 2001 through 
2003 from its net current assets. While the petitioner has established it had sufficient funds to pay the 
proffered wage in 2000 from both its net income and net current assets, this was before the priority date of 
July 18, 2001 and cannot be considered evidence of the petitioner's ability to pay the proffered wage of 
$23,857.60 from the priority date and continuing to the present, with the exception when reviewing with 
regard to the totality of circumstances. 
On appeal, counsel contends that the terrorist attacks of "9/11" and their after effects should be considered 
when determining the petitioner's ability to pay the proffered wage of $23,857.60. While the petitioner may 
have been affected by the tragedy of September 11, 2001, the petitioner has provided no verifiable evidence 
of its loss compared to previous years with the exception of its 2000 tax return. It is also noted that the 
petitioner's 2003 tax return does not show the ability to pay the proffered wage, which is well after the 
September 11, 2001 attacks. Furthermore, the petitioner's location, Jessup, MD, is not located within close 
proximity to Washington, DC, one place of the attacks. In addition, counsel did not provide the beneficiary's 
Forms W-2, Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, as requested by the 
director, either in response to the director's Request for Evidence (RFE) or on appeal. Those forms could 
have aided in determining the petitioner's ability to pay the proffered wage as the petitioner is only obligated 
to establish that it had sufficient funds to pay the difference between the proffered wage of $23,857.60 and the 
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 ye&, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
actual wage paid to the beneficiary. For example, if the difference between the wages paid to the beneficiary 
in 2001 and the proffered wage of $23,857.60 was less than the petitioner's net current assets of $10,315, the 
petitioner would have established its ability to pay the proffered wage in 2001. 
Finally, if the petitioner does not have sufficient net income or net current assets to pay the proffered salary, 
CIS may consider the overall magnitude of the entity's business activities. Even when the petitioner shows 
insufficient net income or net current assets, CIS may consider the totality of the circumstances concerning a 
petitioner's financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter 
of Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The district director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In this case, however, the petitioner has only provided tax 
returns for the years, 2000 through 2003, which is not enough evidence to establish that the business has met 
all of its obligations in the past or to establish its historical growth. There is also no evidence of the 
petitioner's reputation throughout the industry. In addition, although the petitioner has been in business for 
over thirty years, three of the four tax returns submitted do not establish that the petitioner had the ability to 
pay the proffered wage. Additional tax returns would have been needed to determine if the petitioner met the 
requirements of Sonegawa. 
The petitioner's 2000 tax return reflects an ordinary income or net income of $31,443 and net current assets 
of $34,986. The petitioner could have paid the proffered wage of $23,857.60 from either its net income or its 
net current assets in 2000. 
The petitioner's 2001 tax return reflects an ordinary income or net income of -$7,682 and net current assets of 
$10,3 15. The petitioner could not have paid the proffered wage of $23,857.60 from either its net income or 
its net current assets in 2001. 
The petitioner's 2002 tax return reflects and ordinary income or net income of -$2,112 and net current assets 
of $277. The petitioner could not have paid the proffered wage of $23,857.60 from either its net income or its 
net current assets in 2002. 
The petitioner's 2003 tax return reflects and ordinary income or net income of $13,910 and net current assets 
of $9,847. The petitioner could not have paid the proffered wage of $23,857.60 from either its net income or 
its net current assets in 2003. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal do 
not overcome the decision of the director. 
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 dismissed