dismissed EB-3 Case: Culinary

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
bk 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
fj 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. $ 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. 
~ob'ert 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 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 
foreign food 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. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
 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 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. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001 .* The proffered wage as stated on the Form ETA 
750 is $13.01 per hour ($27,060.80 per year). The Form ETA 750 states that the position requires one year 
and six months of experience. 
On appeal, counsel submits a legal brief and additional evidence. 
With the petition, counsel submitted the original Form ETA 750, Application for Alien Employment 
Certification, approved by the U.S. Department of Labor. 
I The petitioner is variously named- 
' It has been approximately five years since the Alien Employment Application has been accepted and the 
proffered wage-established. According to the employer certification that is part of the application, ETA Form 
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the 
employer] guarantee that, if a labor certification is granted, the wage paid 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." 
Page 3 
Because the director determined, inter alia, 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 C.F.R. 5 204.5(g)(2), the director requested on April 27, 2004, pertinent evidence of the 
petitioner's ability to pay the proffered wage beginning on the priority date. 
The director requested evidence in the form of copies of annual reports, U.S. federal tax returns with signatures 
and dates, and audited financial statements for 2001, 2002, and 2003. The director requested the petitioner 
provide copies of the beneficiary's W-2 Wage and Tax Statements for those same dates. 
In response to the request for evidence, counsel submitted, inter alia, copies of the following documents: the 
beneficiary's the petitioner's U.S. Internal Revenue Service (IRS) Form 1120s tax returns for years 2001, 2002, 
and 2003. 
The director denied the petition on January 3, 2005, 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. 
Counsel has submitted the following documents to accompany the appeal statement: an explanatory letter 
from the petitioner's accountant. 
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. Evidence was submitted to show that the petitioner employed 
the beneficiary since February of 2001 according to the petitioner's statement in the record of proceeding.3 
No wage information was submitted. 
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). 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 returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $27,060.80 per year from the priority date of April 30,2001 : 
The CIS Form G-325A in the record of proceeding, stated in pertinent in part, that the beneficiary began 
employment with the petitioner in October 2000. 
In 200 1, the Form 1 120s stated taxable income loss4 of <$7,0 13.00>~. 
In 2002, the Form 1 120s stated taxable income of $1 0,145.00. 
In 2003, the Form 1 120s stated taxable income loss of <$17,448.00>. 
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 between the years 200 1 through 2003 for which the petitioner's tax returns 
are 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~.~ A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120s federal tax return. The petitioner's 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. 
Examining the Form 1120s U.S. Income Tax Returns submitted by the petitioner, Schedule L found in each 
of those returns indicates the following: 
In 2001, petitioner's Form 1120s return stated current assets of $15,532.00 and $3,706.00 in 
current liabilities. Therefore, the petitioner had $1 1,826.00 in net current assets. Since the 
proffered wage is $27,060.80 per year, this sum is less than the proffered wage. 
In 2002, petitioner's Form 1120s return stated current assets of $16,361 .OO and $4,072.00 in 
current liabilities. Therefore, the petitioner had $12,289.00 in net current assets. Since the 
proffered wage is $27,060.80 per year, this sum is less than the proffered wage. 
In 2003, petitioner's Form 1120s return stated current assets of $1,050.00 and $4,422.00 in 
current liabilities. Therefore, the petitioner had <$3,372.00> in net current assets. Since the 
proffered wage is $27,060.80 per year, this sum is less than the proffered wage. 
Therefore, for the period 2001 through 2003 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. 
Counsel has submitted an accountant's explanatory statement to determine the petitioner's ability to pay the 
proffered wage from the priority date. According to regulation,' copies of annual reports, federal tax returns, 
or audited financial statements are the means by which petitioner's ability to pay is determined. The 
accountant states that the corporation suffered shortfalls in income in each of the three years submitted, but 
4 
IRS Form 1 120S, Line 2 1. 
5 
The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
6 
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 year, such as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
' 8 C.F.R. § 204.5(g)(2). 
Page 5 
the owner of the corporation has sufficient funds if the funds received from the owner's wife from her 
upholstery and drapery business is considered as well as personal income received by the owner. Because a 
corporation is a separate and distinct legal entity from its owners and shareholders, 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 owner's spouse has no legal obligation to pay the proffered wage, so likewise, her 
suggested contribution of funds cannot be considered. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the three corporate tax 
returns 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. 
$ 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.