dismissed EB-3 Case: Culinary

identify'ig data deleted to 
prevent clearly unwmtd 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 237 5 1933 Office: VERMONT SERVICE CENTER 
 Date: MAY 1 0 2006 
- - 
IN RE: Petitioner: 
Beneficiary: 
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. 3 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. 
~obert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 04 237 51933 
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 an Indian restaurant. It seeks to employ the beneficiary permanently in the United States as a 
South Indian vegetarian 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 petitioner established his restaurant business in 1988, and, it employed six employees at the time of 
preparation of the petition. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 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) 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 tj 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from 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 shlled 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. 
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 
EAC 04 237 5 1933 
Page 3 
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 April 17, 200 1. The proffered wage as stated on the Form ETA 
750 is $12.00 per hour ($24,960.00 per year). The Form ETA 750 states that the position requires two years 
experience. 
On appeal, counsel submits a legal brief and additional evidence. 
With the petition, counsel submitted copies of the following documents: a copy of the original Form ETA 
750, Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. 
Internal Revenue Service Form tax return 2002; and, copies of documentation concerning the beneficiary's 
qualifications as well as other documentation. 
The director denied the petition on September 30,2004, 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, counsel asserts that the petitioner's net income is calculated after the beneficiary was paid; and, 
that the desires to replace subcontracted labor with the beneficiary. 
Also, counsel contends that the director is basing the denial of the present petition upon the denial of the 
previous petition. The record of proceeding does not contain a copy of the visa petition that the petitioner 
claims was previously denied. It must be emphasized that that each petition filing is a separate proceeding 
with a separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, CIS is 
limited to the information contained in that individual record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). 
Beyond the decision of the director, the AAO reviews appeals on a de novo basis based upon the present 
record of proceeding and evidence submitted. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) 
Counsel has submitted the following documents to accompany the appeal statement: a 2003 Form 1120-A 
U.S. federal income tax return, and, a letter from the petitioner dated October 7, 2004. 
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). 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 
EAC 04 237 51933 
Page 4 
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. Suva, Supra at 1054. 
The tax return demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $24,960.00 per year from the priority date of April 17,2001 : 
In 2003, the Form 1120-A stated taxable income' of $8,007.00. 
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 from tax year 2003 for 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 111 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 U.S. Income Tax Returns submitted by the petitioner, Schedule L found in that 
return indicates the following: 
In 2003, petitioner's Form 1120 return stated current assets of $12,000.00 and $0.00 in 
current liabilities. Therefore, the petitioner had $12,000.00 in net current assets. Since the 
proffered wage is $24,960.00 per year, this sum is less than the proffered wage. 
Therefore, for the period fi-om 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 asserts in his statement on appeal, and the petitioner in a letter accompanying the appeal, that there 
are other ways to determine the petitioner's ability to pay the proffered wage from the priority date. 
According to regulation,3 copies of annual reports, federal tax returns, or audited financial statements are the 
means by which petitioner's ability to pay is determined. 
Petitioner states that it has paid $49,920.00 to two subcontractors and that by replacing one of those 
subcontractors "who was paid $24,960.00 in 2003" it has shown its ability to pay the proffered wage.4 The record 
1 
 IRS Form 1 120-A, Line 24. 
2 
 According to BarronJs 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. 
8 C.F.R. 5 204.5(g)(2). 
4 
 Also, the petitioner states that it has paid wages of $24,960.00. However the 2003 tax return states salaries and 
EAC 04 237 5 1933 
Page 5 
does not, however, name these workers, state their wages, verify their full-time employment, or provide evidence 
that the petitioner would replace them with the beneficiary. Wages already paid to others are not available to 
prove the ability to pay the wage proffered to the beneficiary at the priority date of the petition and continuing to 
the present. The petitioner has not documented the position, duty, and termination of the worker or independent 
contractor who performed the duties of the proffered position. No Form MISC-1099s were submitted. If that 
employee performed other hnds of work, then the beneficiary could not have replaced him or her. 
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 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. 
§ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
wages of $10,400.00 for 2003.