dismissed EB-3 Case: Culinary

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
identifying data deleted to 
 and Immigration 
prevent clearly  wanan anted 
invasion of personal privac) 
IC copy 
Office: CALIFORNIA SERVICE CENTER Date: 
WAC 04 250 50295 
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 1 53(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 Director, California Service Center, denied the employment-based visa petition that is 
now before the Administrative Appeals Office 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 
specialty cook. 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 the beneficiary has the requisite experience as stated on the labor certification petition and 
denied the petition accordingly. 
The record shows that the appeal was properly and timely filed and makes a specific allegation of error in law 
or fact and is accompanied by new evidence. 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. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 or seasonal nature, for which qualified workers are unavailable in 
the United States. 
The regulation at 8 C.F.R. $204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for skilled workers, professionals, or 
other workers must be supported by letters fi-om 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 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. 
Eligibility in this matter hinges on the petitioner demonstrating 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). The priority date of the petition is the date the request for labor certification was 
accepted for processing by any office within the employment system of the Department of Labor. Here, the 
request for labor certification was accepted for processing on April 26, 2001. The labor certification states that 
the position requires two years of experience in the job offered. 
On the Form 1-140 petition the petitioner claimed to have two employees and to have been established on August 
3, 1998. On the Form ETA 750, Part B the beneficiary, who signed that form on April 18,2001, did not claim to 
Page 3 
have worked for the petitioner.' The beneficiary did claim, however, to have been self-employed from January 
1995 to August 1998 as a restaurant owner/cook at the address now occupied by the petitioner. The beneficiary 
also claimed to have worked as a cook at the Thai Dish restaurant in Boston, Massachusetts, from May 1992 to 
October 1994. 
Subsequently the petitioner submitted an amended work lustory, dated November 28, 2003, for the beneficiary. 
In that amended history the beneficiary's claim of employment at the restaurant is unchanged. The 
beneficiary claims self-employment as a cook in hls own restaurant at the petitioner's current address2 from 
January 1995 to August 1998, when he sold the business. 
The beneficiary claimed, in addition to have worked for the petitioner fiom April 1998 to April 2001. As the 
beneficiary indicated that he was self-employed as a cook at his restaurant at that same location until August of 
1 998, and as the petitioner indicated that it did not come into existence until that month, that employment cannot 
have begun before that month. This office suspects that the discrepancy is the result of a typographical error. 
The AAO reviews de nova issues raised in decisions challenged on appeal. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989). The AAO considers all evidence properly in the record including evidence properly 
submitted on appeal.' 
In the instant case the record contains (1) an employment verification letter dated April 11, 2001, (2) an 
employment verification letter dated September 30, 2005, (3) California Form DE-6 Quarterly Wage and 
Withholding Reports, (4) a Federal Form 941 Employer's Quarterly Federal Tax Return, (5) a Federal Form 
941c Supporting Statement to Correct Information, (6) Form W-2 Wage and Tax Statements, (7) three checks 
drawn by the petitioner's owner against the petitioner's business checking account, (8) a letter dated April 28, 
2005 from the petitioner's owner, (9) Form 1040 U.S. Individual Income Tax Returns and Los Angeles Public 
Health Operating Permits showing that the beneficiary owned the petitioning restaurant prior to August 1998, 
(1 0) various documents showing that the petitioner's current owner acquired it during or about August of 
1998, (1 1) documents issued August 20, 2000 and August 20, 2004 showing that a restaurant association and 
the Los Angeles County Health Department certified the beneficiary as a food handler, (12) an August 2, 
2005 declaration by the petitioner's owner, and (1 3) an October 17, 2005 declaration by the beneficiary. The 
record does not contain any other evidence relevant to the beneficiary's claims of qualifying employment 
experience. 
1 
 The instructions on that form instruct the beneficiary to, "List all jobs held during the last three years" and 
"any other jobs related to the [proffered position] ." 
* 
 That employment history indicates that the restaurant was called 
 Restaurant, just as the 
petitioning entity, at the same address, is called today. 
3 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations at 8 C.F.R. fj 103.2(a)(l). The record in the instant case provides no 
reason to preclude consideration of any documents newly submitted on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988). 
The April 1 1, 2001 employment verification letter is from the 
m 
estaurant in Boston Massachusetts 
and states that t 
 t restaurant as a coo 
 rom May 1992 to October 1994. That 
letter is signed b 
 whose position at that restaurant, if any, is not stated. This office 
notes that the affiant has the same family name as the beneficiary. 
The September 30, 2005 employment verification letter is from the owner of 
restaurant in Boston, Massachusetts. The writer stated that she previously owned th 
that that the beneficiary worked there as a cook from May of 1 992 to October of 1 994. 
The writer further stated, 
Unfortunately, there are no pay records for [the beneficiary's] term of employment as he did 
not have a bank account. And most of small restaurants [sic] pay their employees cash. I had 
to do so with [the beneficiary]. [The beneficiary received between $450 and $475 in cash per 
week to work at my restaurant. 
The California Form DE-6 Quarterly Wage and Withholding Reports submitted cover all four quarters of 
2004 and the second quarter of 2005. The 2004 forms show that the petitioner paid the beneficiary $1,800 
during each of those quarters, for a total of $7,200 during 2004. The petitioner also employed another worker 
whom it paid a total of $10,400 during 2004. The 2005 form shows that the petitioner paid the beneficiary 
$3,868 and paid its sole other employee $2,800 during the second quarter. 
The Federal Form 94 1 quarterly return submitted shows that the petitioner paid total wages of $6,668 during 
the second quarter of 2005. The Federal Form 941c shows that the petitioner amended its first quarter 2005 
wages from $3,800 to $4,200. 
The W-2 forms provided show that the petitioner paid the beneficiary total remuneration of $2,000, $2,400, 
$7,200, and $7,200 during 2001,2002,2003, and 2004, respectively. 
The three checks drawn by the petitioner's owner were payable to the order of the beneficiary in the amounts 
of $1,456.67, $1,526.04, and $1,456.07 on May 3 1, 2005, June 30,2005, and July 3 1,2005. 
The petitioner's owner's April 28, 2005 letter states that the beneficiary began working for the petitioner 
during 1998 and continued until a fire closed the restaurant on September 25, 2001, then returned to work 
part-time when the restaurant opened in July 2002, where he continued to work on the date of that letter. 
In her August 2, 2005 declaration the petitioner's owner stated that her family in Thailand has known the 
beneficiary's family for many years. In his October 17, 2005 declaration the beneficiary stated that he owned 
the restaurant that is now petitioning for him from 1995 to August 1998 and that during that time he was the 
sole worker at the restaurant. 
The beneficiary's October 17, 2005 declaration states that the beneficiary owned the 
 restarurant 
from 1995 until he sold it during August 1998. 
The director denied the petition on August 29, 2005. In addition to finding that the evidence does not 
demonstrate that the beneficiary is qualified for the proffered position the director noted that the friendship 
between the beneficiary's family and the petitioner's owner's family casts doubt on the validity of the job 
offer. 
On appeal, counsel asserted that the beneficiary's first employment verification letter, 
is convincing evidence of the validity of the beneficiary's claim of employment at 
Counsel did not state whether 
 s related to the beneficiary by blood or marriage. 
restaurant, notwithstanding 
 someone with the same family name as the beneficiary. 
Counsel also indicated that the letter from the previous owner of the estaurant is also convincing 
evidence in support of the beneficiary's claim of qualifying employment, stating, "The employer has justified 
it [sic] failure to provide [contemporaneous documentary evidence of that employment] as it is not available 
for cash businesses such as restaurants." 
Counsel also stated that the DOL found, in approving the Form ETA 750 submitted with the petition, that the 
beneficiary is qualified for the proffered position, and that this determination should be accorded considerable 
weight. Counsel cites Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 485 F. Supp. 345, 
346 (1980) for the proposition that CIS does not have the statutory authority to determine whether the 
beneficiary is qualified for the proffered position. 
Counsel is correct that the district court in Stewart Infra-Red, ruled that CIS authority does not extend to 
determining whether a beneficiary is qualified for a position previously certified by DOL. That decision, 
however, was overturned by the circuit court in Stewart Infra-Red Commissary of Massachusetts, Inc. v. 
Coomey, 661 F.2d 1 (1 st Cir. 198 1). In that decision the court found that determining whether a beneficiary is 
qualified for a proffered position is manifestly within the ambit of CIS' authority, thus overruling the 
precedent upon whch counsel relies. 
Considerable statutory, regulatory, and precedential support exists, in addition to the case cited by counsel, 
for the proposition that CIS is, in fact, charged with determining whether the beneficiary has been shown to 
be qualified to perform in the proffered position. A discussion of that support follows. 
As noted above, the ETA 750 in this matter is certified by DOL. Thus, at the outset, it is useful to discuss DOL's 
role in this process. Section 21 2(a)(5)(A)(i) provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing skilled 
or unslulled labor is inadmssible, unless the Secretary of Labor has determined and certified to 
the Secretary of State and the Attorney General that- 
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified 
in the case of an alien described in clause (ii)) and available at the time of application for 
a visa and admission to the United States and at the place where the alien is to perform 
such slulled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the wages and working 
conditions of workers in the United States similarly employed. 
According to the regulation at 20 C.F.R. 8 656.20(c), as in effect at the time of filing: an employer applying for a 
labor certification must "clearly show" that: 
(1) The employer has enough funds available to pay the wage or salary offered the alien; 
(2) The wage offered equals or exceeds the prevailing wage determined pursuant to 4 656.40, 
and the wage the employer will pay to the alien when the alien begins work will equal or exceed 
the prevailing wage which is applicable at the time the alien begins work; 
(3) The wage offered is not based on commissions, bonuses or other incentives, unless the 
employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis; 
(4) The employer will be able to place the alien on the payroll on or before the date of the alien's 
proposed entrance into the United States; 
(5) The job opportunity does not involve unlawll discrimination by race, creed, color, national 
origin, age, sex, religion, handicap, or citizenship; 
(6) The employer's job opportunity is not: 
(i) Vacant because the former occupant is on strike or is being locked out in the 
course of a labor dispute involving a work stoppage; or 
(ii) At issue in a labor dispute involving a work stoppage; 
(7) The employer's job opportunity's terms, conditions and occupational environment are not 
contrary to Federal, State or local law; and 
(8) The job opportunity has been and is clearly open to any qualified U.S. worker. 
(9) The conditions of employment listed in paragraphs (c) (1) through (8) of this section shall be 
sworn (or affirmed) to, under penalty of perjury pursuant to 28 U.S.C. 1 746, on the Application 
for Alien Employment Certification form. 
The regulation at 20 C.F.R. 5 656.2 1 (a) requires the ETA 750 to include: 
(1) A statement of the qualifications of the alien, signed by the alien; [and] 
(2) A description of the job offer for the alien employment, including the items required by 
paragraph (b) of this section. 
Recently the Department of Labor has promulgated new regulations regarding the labor certification process. These 
new regulations only apply to applications filed on or after the effective date of the regulations, March 28, 2005. 
Applications filed before March 28, 2005, such as the one before us, are to be processed and governed by the current 
regulations quoted in this decision. 69 Fed. Reg. 77326-01 (Dec. 27, 2004). 
Finally, the regulation at 20 C.F.R. 
 656.24(b) provides that the DOL Certifying Officer shall make a 
determination to grant the labor certification based on whether or not: 
(1) The employer has met the requirements of ths part. However, where the Certifylng Officer 
determines that the employer has committed harmless error, the Certimg Officer nevertheless 
may grant the labor certification, Provided, That the labor market has been tested sufficiently to 
warrant a finding of unavailability of and lack of adverse effect on U.S. workers. Where the 
Certifying Officer makes such a determination, the Certifying Officer shall document it in the 
application file. 
(2) There is in the United States a worker who is able, willing, qualified and available for and at 
the place of the job opportunity according to the following standards: 
(i) The Certifying Officer, in judging whether a U.S. worker is willing to take the 
job opportunity, shall look at the documented results of the employer's and the 
Local (and State) Employment Service office's recruitment efforts, and shall 
determine if there are other appropriate sources of workers where the employer 
should have recruited or might be able to recruit U.S. workers. 
(ii) The Certifying Officer shall consider a U.S. worker able and qualified for the 
job opportunity if the worker, by education, training, experience, or a combination 
thereof, is able to pefirm in the normally accepted manner the duties involved in 
the occupation as customarily performed by other U.S. workers similarly employed, 
except that, if the application involves a job opportunity as a college or university 
teacher, or for an alien whom the Certifying Officer determines to be currently ,of 
exceptional ability in the performing arts, the U.S. worker must be at least as 
qualified as the alien. 
(iii) In determining whether U.S. workers are available, the Certifying Officer shall 
consider as many sources as are appropriate and shall look to the nationwide system 
of public employment offices (the "Employment Service") as one source. 
(iv) In determining whether a U.S. worker is available at the place of the job 
opportunity, the Certifying Officer shall consider U.S. workers living or working in 
the area of intended employment, and may also consider U.S. workers who are 
willing to move fi-om elsewhere to take the job at their own expenses, or, if the 
prevailing practice among employers employing workers in the occupation in the 
area of intended employment is to pay such relocation expenses, at the employer's 
expense. 
(3) The employment of the alien will have an adverse effect upon the wages and working 
conditions of U.S. workers similarly employed. In making this determination the Certifylng 
Officer shall consider such things as labor market information, the special circumstances of the 
industry, organization, andlor occupation, the prevailing wage in the area of intended 
employment, and the prevailing worlung conditions, such as how, in the occupation. 
It is significant that none of the above inquiries assigned to DOL involve the determination of whether or not the 
alien is qualified for the job offered. Ths has been noted by various Federal Circuit Courts of Appeals, in 
addition to the First Circuit in Stewart Infra-Red Commissary: 
There is no doubt that the authority to make preference classification decisions rests with 
INS. 
 The language of section 204 cannot be read otherwise. 
 See Castaneda-Gonzalez v. 
INS, 564 F.2d 417, 429 (D.C. Cir. 1977). 
 In turn, DOL has the authority to make the two 
determinations listed in section 2 1 2(a)(14) [currently found at 2 12(a)(5)(A)(i) J . Id. at 423. 
The necessary result of these two grants of authority is that section 212(a)(14) determinations 
are not subject to review by INS absent fraud or willful misrepresentation, but all matters 
relating to preference classification eligibility not expressly delegated to DOL remain within 
INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' own 
interpretations of their duties under the Act, we must conclude that Congress did not intend 
DOL to have primary authority to make any determinations other than the two stated in 
section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of 
"matching" them with those of corresponding United States workers so that it will then be "in 
a position to meet the requirement of the law," namely the section 212(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on this decision, the Ninth 
Circuit Court of Appeals, which has jurisdiction over this matter, stated: 
[I]t appears that the DOL is responsible only for determining the availability of suitable 
American workers for a job and the impact of alien employment upon the domestic labor 
market. It does not appear that the DOL's role extends to determining if the alien is qualified 
for the job for which he seeks sixth preference status. That determination appears to be 
delegated to the INS under section 204(b), 8 U.S.C. $ 11 54(b), as one of the determinations 
incident to the INS'S decision whether the alien is entitled to sixth preference status. 
K. R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9" Cir. 1983). The court relied on an amicus brief from the 
DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 212(a)(14) of 
the . .. [Act] . .. is binding as to the findings of whether there are able, willing, qualified, and 
available United States workers for the job offered to the alien, and whether employment of 
the alien under the terms set by the employer would adversely affect the wages and working 
conditions of similarly employed United States workers. The labor certifcation in no way 
indicates that the alien oflered the certiJied job opportunity is qualified (or not qualijied) to 
perform the duties of that job. 
Id. at 1009 (emphasis added). The Ninth Circuit reached a similar decision one year later in Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman: 
The Department of Labor ("DOL") must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not adversely 
affect the wages and working conditions of similarly employed domestic workers. Id. 
5 21 2(a)(14), 8 U.S.C. fj 11 82(a)(14). The INS then makes its own determination of the 
alien's entitlement to sixth preference status. Id. 5 204(b), 8 U.S.C. 5 1154(b). See 
generally K. R. K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
736 F. 2d 1305, 1309 (9th Cir. 1984). See also Black Const. Corp. v. INS., 746 F.2d 503 (9" Cir. (Guam) 
1984) (rejecting argument that once employer's labor certifications had been approved by DOL it was error 
for INS to deny related immigrant petitions for failure to meet preference status requirements). 
The key to determining the job qualifications specified in the labor certification is found on Form ETA-750 
Part A. This section of the application for alien labor certification, "Offer of Employment," describes the 
terms and conditions of the job offered. It is important that the ETA-750 be read as a whole. The instructions 
for the Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job Duties. Do not 
duplicate the time requirements. For example, time required in training should not also be 
listed in education or experience. Indicate whether months or years are required. Do not 
include restrictive requirements which are not actual business necessities for performance on 
the job and which would limit consideration of otherwise qualified U.S. workers. 
As discussed above, the role of the DOL in the employment-based immigration process is to make two 
determinations: (i) that there are not sufficient U.S. workers who are able, willing, qualified and available to 
do the job in question at the time of application for labor certification and in the place where the alien is to 
perform the job, and (ii) that the employment of such alien will not adversely affect the wages and working 
conditions of similarly employed U.S. workers. Section 2 12(a)(5)(A)(i) of the Act. Beyond this, Congress 
did not intend DOL to have primary authority to make any other determinations in the immigrant petition 
process. Madany, 696 F.2d at 1013. As discussed above, CIS, not DOL, has final authority with regard to 
determining an alien's qualifications for an immigrant preference status. K. R.Klrvine, 699 F.2d at 1009 FN5 
(citing Madany, 696 F.2d at 101 1-1 3). This authority encompasses the evaluation of the alien's credentials in 
relation to the minimum requirements for the job, even though a labor certification has been issued by DOL. 
Id. 
We turn, then, to an analysis of the evidence in the instant case pertinent to the beneficiary's claims of 
qualifying experience. 
Counsel leans heavily upon the beneficiary's claim of employment at 
 in Boston. The letter counsel 
initially submitted in support of the beneficiary's claim of qualifying employment experience was fiom a 
person with the same last name as the beneficiary. Further, that letter did not identify the writer's position at 
that previous place of employment as required by 8 C.F.R. tj 204.5(1)(3)(ii)(A). The service center found the 
circumstances of this employment verification letter suspicious. Doubt cast on any aspect of the petitioner's 
proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Dec. 582 (Comm. 1988). 
In response, without coding or rehting the implication that the previous affiant may be related to the 
beneficiary, or demonstrating, or even alleging, that the fust affiant owned, managed or had any other position at 
that restaurant, counsel submitted a second employment verification letter pertinent to the same employment 
claim. That letter reiterates and supports the beneficiary's claim of qualifying employment experience. That 
letter states, however, that no records are available of the beneficiary's employment. This employment claim, 
called into question by the fact that an apparent relative initially attested to it, has not been sufficiently supported 
on appeal. 
The remaining employment claim is the beneficiary's claim of employing himself at the premises now occupied 
by the petitioner. %s office does not accept that attestation as convincing evidence of qualifying employment. 
The evidence submitted does not demonstrate credibly that the beneficiary has the requisite two years of 
experience. The petitioner has not submitted corroborating evidence of the beneficiary's self-employment such 
as the beneficiary's tax returns, corporate tax returns, business licenses, or other indices that the beneficiary 
gained experience as a cook. Therefore, the petitioner has not established that the beneficiary is eligible for the 
proffered position. The petition was correctly denied on ths ground, whch ground has not been overcome on 
appeal. 
As the director also noted, the validity of the job offer in this case is also in question. The beneficiary previously 
owned the petitioning restaurant. This in itself calls into question whether he has an arms-length relationshp with 
the present owner. A relationship invalidating a bonafide job offer may arise where the beneficiary is related 
to the petitioner by blood, by marriage, through friendship, or where the two have a financial relationship. 
See Matter of Summart, 374, 2000-INA-93 (May 15,2000). This suspicion is further elevated by the fact that 
on the Form 1-140 petition the beneficiary listed his address as h, in Granada Hills, 
California, and the petitioner's owner listed that same address as her ome on er ugust 2005 affidavit. 
Although the possibility that the job offer might not be valid was mentioned in the decision of denial that 
decision did not make clear whether it was relying upon that as an additional basis for denial. The petition 
should have been denied on that ground, if it was not. If it was, that additional basis has not been overcome 
on appeal. 
The record suggests yet another basis for denial that was not addressed in the decision of denial. 
The petitioner is obliged to demonstrate its continuing ability to pay the proffered wage beginning on the 
priority date pursuant to 8 C.F.R. $ 204.5(g)(2). The priority date of the instant petition is April 26, 2001. 
The proffered wage is $9.50 per hour which equals $19,760 per year. 
The petitioner's owner submitted his 2001, 2002, 2003, and 2004 Form 1040 U.S. Individual Income Tax 
Returns. Schedules C attached to each of those returns show that the person identified as the petitioner's 
owner in the record of proceedings owned the petitioner as a sole proprietorship during each of the salient 
years. 
Because the petitioner's owner is obliged to satisfy the petitioner's debts and obligations out of her own income 
and assets, the petitioner's income and assets are properly combined with a portion of those of the petitioner's 
owner in the determination of the petitioner's ability to pay the proffered wage. The petitioner's owner is 
obliged to demonstrate that she could have paid the petitioner's existing business expenses and still paid 
proffered wage. In addition, she must show that she could still have sustained herself and her dependents. Ubeda 
v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7" Cir. 1983). 
The petitioner's owner's 2001 adjusted gross income, includuing the petitioner's profit offset by deductions, 
was $14,572. The 200 1 W-2 form submitted shows that the petitioner paid the beneficiary $2,000 during that 
year. The sum of those amounts is $16,572. That amount is insufficient pay the proffered wage. The 
petitioner provided no reliable evidence of any other funds available to it during 2001 with which it could 
have paid the proffered wage. The petitioner failed to show the ability to pay the proffered wage during 2001. 
The petitioner's owner's 2002 adjusted gross income, includuing the petitioner's profit offset by deductions, 
was a loss of $903. The 2002 W-2 form submitted shows that the petitioner paid the beneficiary $2,400 
during that year. The sum of those amounts is $1,497. That amount is insufficient to pay the proffered wage. 
The petitioner provided no reliable evidence of any other funds available to it during 2002 with which it could 
have paid the proffered wage. The petitioner failed to show the ability to pay the proffered wage during 2002. 
The petitioner's owner's 2003 adjusted gross income, includuing the petitioner's profit offset by deductions, 
was $3,778. The 2003 W-2 form submitted shows that the petitioner paid the beneficiary $7,200 during that 
year. The sum of those amounts is $10,978. That amount is insufficient pay the proffered wage. The 
petitioner provided no reliable evidence of any other funds available to it during 2003 with which it could 
have paid the proffered wage. The petitioner failed to show the ability to pay the proffered wage during 2003. 
The petitioner's owner's 2004 adjusted gross income, includuing the petitioner's profit offset by deductions, 
was $1 7,139. The 2004 W-2 form submitted shows that the petitioner paid the beneficiary $7,200 during that 
year. The sum of those amounts is $24,339. That amount is greater than the proffered wage. If the 
petitioner's owner had been obliged to pay the proffered wage out of her adjusted gross income, however, she 
would have been left with $4,579 with which to support herself. The petitioner's owner stated in her April 
29, 2005 statement that her recurring monthly expenses are approximately $1,900 per month; which equals 
$22,800 per year. The petitioner's owner would not have been able to pay the proffered wage out of her 
adjusted gross income and retained enough to meet her expenses. The petitioner provided no reliable 
evidence of any other funds available to it during 2004 with which it could have paid the proffered wage. The 
petitioner failed to show the ability to pay the proffered wage during 2004. 
Because the decision of denial did not discuss this issue and the petitioner has not been accorded the 
opportunity to address it, today's decision does not rely on that issue. If the petitioner attempts to overcome 
today's decision on motion, however, it should address ths issue, and may also be required to present 
evidence of its ability to pay the proffered wage during subsequent years. 
5 
The petitioner listed a monthly mortgage payment of $1,218.67, a monthly automobile and insurance 
payment of $400, $500 in gasoline per year ($41.67/mo.), $26 per month for gas, $26 per month for 
telephone, $1 00 per month for electricity, homeowner's insurance of $650 per year (54.1 7/mo.), and $40 per 
month for food. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.