dismissed EB-3 Case: Culinary

PmLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
06 
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. 5 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. 
iobert 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 (MO) 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 cook. As 
required by statute, a Form ETA 750, Application for Alien Employment Certification approved by the 
Department of Labor (DOL), 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 and denied the petition accordingly. 
On appeal, counsel submits additional evidence and asserts that the petitioner has had the continuing financial 
ability to pay the proffered salary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 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. 204.5(g)(2) provides: 
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 
(CISIl. 
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 CFR 204.5(d). Here, the Form ETA 750 was accepted for processing on April 25, 
2001. The proffered wage as stated on the Form ETA 750 is $18.89 per hour, which amounts to $39,291.20 per 
annum. The ETA 750 B, signed by the beneficiary on February 6, 2001, does not indicate that the petitioner has 
employed the beneficiary. 
. . 
On Part 5 of the visa petition, filed on October 8, 2003, the petitioner claims to have been established on June 28, 
2001, to have a gross annual income of $282.042, and to have a net annual income of $172,421. In support of its 
ability to pay the'beneficiary's proposed wage offer of $39,291.20 per year, the petitioner initially submitted 
copies of its Form 1120, U.S. Corporation Income Tax Return for 2001 and 2002. They reflect that the petitioner 
files its federal tax returns using a fiscal year running from June 1'' to the following May 3 1st. Thus the 2001 and 
2002 returns cover a period from June 1 ,' 2001 to May 3 1,2003. They contain the following information: 
Taxable Income before the net 
operating loss (NOL) deduction -$57,397 -$88,334 
Current Assets (Sched. L) $ 6,859 -$ 534 
Current Liabilities (Sched. L) $ -0- $ -0- 
Net current assets $6,859 -$ 534 
The tax return for 2001 also reflects that $3,200 was paid as officers' compensation and $95,300 was paid as 
salaries and wages. The 2002 tax return indicates that $20,800 was paid as officers' compensation and $100,250 
was paid as salaries and wages. 
As noted above, net current assets are the difference between the petitioner's current assets and current liabilities 
and represent a measure of a petitioner's liquidity during a given period.' Besides net income, and as an 
alternative method of reviewing a petitioner's ability to pay the proffered wage, CIS will examine a petitioner's 
net current assets as a possible resource out of which a proffered wage may be paid. A corporation's year-end 
current assets and current liabilities are shown on Schedule L of a corporate tax return. Current assets are found 
on line(s) l(d) through 6(d) and current liabilities are specified on line(s) 16(d) through 18(d). If a corporation's 
year-end 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 director requested additional evidence of the petitioner's ability to pay the proffered wage from the priority 
date of April 25, 2001 until the present. He also requested copies of the beneficiary's Wage and Tax Statement 
(W-2) for 2001 if the petitioner employed the beneficiary during this period. 
the petitioner submitted a letter, dated September 14, 2004, signed by the petitioner's president, 
' 
 He states that he is one of the petitioner's owners. He further states that he can afford to 
proffered wage of $18.89 per hour or $39,921.20 per year "up to the extent of my salary and the 
salary of the other officers." He further states that business is growing and that "[wle will be doing managerial 
works in this business and because our time is very limited to works also a Cook, ill replace us, as a 
Cook." "Enclosed is the copy of our Form W-2 for the year 2001 and 2003." 
himself and four other individuals under "Year 2001" and designates various 
to be contributed toward the beneficiary's certified wage, ranging from $5,500 to $12,5000; the total amounting to 
$40,500. For "Year 2003," he lists himself and two other individuals with amounts ranging from $14,450 to 
1 
 According to Barron's Dictionary ofAccounting 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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
$30,000; the total being $68,450. The accompanying W-2s for these persons disclose the same amounts as the 
wages paid during 200 1 and 2002. 
The director denied the petition on November 29, 2004, citing only the insufficiency of the petitioner's net 
income and net current assets to cover the proffered salary in 2001 as revealed by the 2001 tax return as failing to 
establish its continuing ability to pay the proposed wage offer beginning on the priority date. 
On appeal, counsel resubmit 
 eptember 14, 2004 letter and accompanying W-2s and asserts that this 
evidence establishes the 
 to pay the proffered wage as of the priority date. We do not find this 
contention persuasive. 
The AAO notes that the Department of Labor's function in determining whether the hiring of an alien for a 
certified position will adversely affect the wages and working conditions of similarly employed domestic U.S. 
workers does not impact the jurisdiction of CIS to review whether the petitioner is making a realistic job offer and 
by evaluating the qualifications of a beneficiary for the job CIS is empowered to make a de novo determination 
of whether the alien beneficiary is qualified to fill the certified job and receive entitlement to third preference 
status. See Tongatapu Woodcraft Hawaii, Ltd. v. INS, 736 F.2d 1305, 1308 (9~ Cir. 1984). Part of this authority 
includes the right to inquire into whether the employer is able to pay the alien beneficiary's wages. Ubeda v. 
Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
In reviewing a petitioner's ability to pay the proffered wage during a given period, Citizenship and Immigration 
Services (CIS) will first examine whether the petitioner employed and paid the beneficiary during the relevant 
period. If the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage during a given period, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. To the extent that the petitioner paid wages less than the proffered 
salary, those amounts will be considered in calculating the petitioner's ability to pay the proffered wage. If any 
shortfall between the actual wages paid by a petitioner to a beneficiary and the proffered wage can be covered by 
either a petitioner's net income or net current assets during the given period, the petitioner is deemed to have 
demonstrated its ability to pay a proffered salary. In this case, the record contains no evidence that the petitioner 
,has employed the alien. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net taxable income figure reflected on the 
petitioner's federal income tax return, without consideration of depreciation or other expenses. If it equals or 
exceeds the proffered wage, the petitioner is deemed to have established its ability to pay the certified salary 
during the period covered by the tax return. 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. "The [CIS] may 
reasonably rely on net taxable income as reported on the employer's return." Elatos Restaurant Carp. v. Sava, 
632 F. Supp. 1049, 1053 (S.D.N.Y. 1986) ((citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, supra, and 
Ubeda v. Palmer, supra; see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 536 (N.D. Texas 1989); 
K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985). 
If an examination of the petitioner's net taxable income or wages paid to the beneficiary fails to successfully 
demonstrate an ability to pay the proposed wage offer, CIS will review a petitioner's net current assets. 
Page 5 
In this case; as set forth above, neither the petitioner's -$57,397 in net taxable income, nor its $6,859 could meet 
the proffered wage of $39,291.20 during the fiscal 2001. Similarly, in fiscal 2002, neither the -$88,334 -in net 
taxable income, nor the -$534 in net current assets could meet the proposed wage offer in $39,291.20. 
With regard to the petitioner's president's willingness to have paid the certified wage from the reallocation of the 
entire salaries of himself and four other individuals in 2001 and himself and two other individuals in 2003, 
asserting that the beneficiary would have replaced all of their duties 'as cooks as they would have performed 
other managerial duties (apparently without compensation), is simply not credible and will not be considered. 
There is no dersuasive evidence that the position of such individuals involve the same duties as those set forth in the 
Form ETA ,750. The. petitioner has not documented the position, duty, and termination of the worker(s) who 
performed the duties of the proffered position. If that employee performed other lunds of work, then the beneficiary 
could not have replaced him or her. 
It is further noted that as a corporation, the petitioner is a separate and distinct legal entity from its owners and 
shareholders and the 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)'. The court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 
2003) affirmed the rejection of the offer of the petitioner's director to personally pay the proffered wage stating 
"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." 
As the evidence fails to establish that the petitioning company had the continuing ability to pay the proffered 
beginning on the visa priority date of April 30,2001, the petition may not be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.