dismissed EB-3 Case: Culinary

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
iWrYjng data def- to 
PeVent ckarly unwananted 
invasion of personal pri~lry 
PUBLLC COPY 
FILE: EAC 04 177 50869 Office: VERMONT SERVICE CENTER 
 Date: MAY 1 6 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
$ 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
EAC 04 177 50869 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and 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, 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. 
The petition stated that the petitioner commenced business in 1972, and, it employs three individuals. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The regulation at 8 C.F.R. $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 skilled 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. 
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. Comrn. 1977). 
Here, the Form ETA 750 was accepted on October 8, 2003. The proffered wage as stated on the Form ETA 
750 is $13.50 per hour ($28,080.00 per year). 
With the petition, the petitioner submitted the original Form ETA 750, Application for Alien Employment 
Certification, approved by the U.S. Department of Labor. 
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 
EAC 04 177 50869 
Page 3 
C.F.R. 9 204.5(g)(2), the director requested on August 3 1, 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 
return for 2003 as well as an annual report for 2003 with audited or reviewed financial statements. 
In response to the request for evidence of the petitioner's ability to pay the proffered wage beginning on the 
priority date, the petitioner submitted an explanatory letter; a letter from the beneficiary's uncle; and, the 
petitioner's U.S. Internal Revenue Service (IRS) Form 1120-A tax return for year 2003. 
The director denied the petition on November 5, 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, the petitioner asserts that the tax return submitted does " . . . not fully reflect the gross revenues 
that are generated." The petitioner states, "We are willing to supplement with further documentary, 
references . . . ." 
Although the petitioner stated that it was submitting additional evidence within 30 days of the filing of the 
appeal, none were submitted. 
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. No evidence was submitted to show that the petitioner 
employed the beneficiary. 
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. 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, 7 19 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). 
The petitioner asserts that the tax return submitted does " .. . not fully reflect the gross revenues that are 
generated." In K.C.P. Food Co., Inc. v. Sava, the court held that the Service 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. 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 return demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $28,080.00 per year from the priority date of October 8,2003: 
EAC 04 177 50869 
Page 4 
In 2003, the Form 1120-A stated taxable income' of $17,936.00. 
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 for the tax year 2003 which the petitioner's tax return is 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~.~ The 
petitioner's year-end current liabilities are shown on Part I11 of the return. 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-A U.S. Income Tax Returns submitted by the petitioner, Schedule L found in the 
return indicates the following: 
In 2003, petitioner's Form 1120-A return stated current assets of $15,699.00 and $7,435.00 in 
current liabilities. Therefore, the petitioner had $8,264.00 in net current assets. Since the 
proffered wage is $28,080.00 per year, this sum is less than the proffered wage. 
Therefore, 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. 
The beneficiary's uncle has submitted a notarized letter, without date or notarization date, that contributes that 
the uncle is willing to support his nephew once the nephew is in the United States. Since it is the petitioner's 
obligation to pay the beneficiary the proffered wage, it is unclear why counsel introduced this letter that is 
sometimes introduced in family based visa processes. CIS may not "pierce the corporate veil" and look to the 
assets of the corporation's owner or a third party 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 (Comm. 1980), and Matter of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comm. 1980). 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. 5 204.5, 
permits [CIS] to consider the financial resources of individuals or entities who have no legal obligation to pay 
the wage." The petitioner cannot shift its obligation to pay the proffered wage to a third party. 
In the totality of all the evidence submitted in this case, there is evidence to demonstrate that the petitioner's 
business was in a profitable period in 2003 earning $17,936.00, but not enough to pay the proffered wage of 
1 
IRS Form 1 120-A, Line 24. 
2 
 According to Barron's Dictionary of Accounting Terms 1 17 (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 1 18. 
EAC 04 177 50869 
Page 5 
$28,080.00 per year. The net current asset value for those years is positive, $8,264.00, but still less than the 
proffered wage. 
Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), 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. By the 
evidence presented, the petitioner has not proven its ability to pay the proffered wage. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date 
The petitioner's contentions cannot be concluded to outweigh the evidence presented in the corporate tax 
return 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. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.