dismissed EB-3 Case: Culinary

identifying data deleted to 
prevent clearly unwarranted 
invasion of paswal 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 247 5 1039 Office: VERMONT SERVICE CENTER Date: MAY 1 6 2006 
PETITION: Immigrant petition for Alien Worker as a Skilled Worlter or Professional pursuant to 
section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 9 11 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. 
R bert P. Wiemann, Chief 
wu 
Administrative Appeals Office 
EAC 04 247 5 1039 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office 011 appeal. The appeal will be dismissed. 
The petitioner is a restaurant. It seeks to employ tlie beneficiary permanently in the United States as a cook, 
Thai style. 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)(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 nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. 5 204.5(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 5 204.5(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 
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. 
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 011 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 WingIs Tea House. 16 I&N Dec. 158 (Act. Reg. Cotnm. 1977). 
EAC 04 247 5 1039 
Page 3 
Here, the Form ETA 750 was accepted on September 10, 2001. The proffered wage as stated on the Form 
ETA 750 is $18.89 per hour ($39,291.20 per year). The Form ETA 750 states that the position requires two 
years experience. 
On appeal, counsel submits additional evidence. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; a U.S. Internal 
Revenue Service Form tax return for 200; an extension for filing of tax return for 2003; and, copies of 
documentation concerning the beneficiary's qualifications as well as other documentation. 
The director denied the petition on October 1, 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 intent for the beneficiary to replace workers evidences the ability to pay 
the proffered wage. 
Counsel has submitted the an explanatory letter from the petitioner along with W-2 Wage and Tax statements 
for existing employees to accompany the appeal statement. 
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 prirna 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. Elatoc Rettaurcr~lt C'orp v. Sava, 632 F.Supp. 
1049, 1054 (S.D.N.Y. 1986) (citing Tongatcpu 1l'oo~Jcraji H~rwaii, Ltd. 1.. Feld~~rni. 736 F.2d 1305 , (9th Cir. 
1984) ); see also Chi-Feng Chang v. Thornhzn-gl~, 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. Palnler, 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 COLII~ 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 E1ato.c Restaurant Corp. v. Srrva, Supra at 1 054. 
The tax return demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $39,291.20 per year from the priority date of September 10, 200 1 : 
In 2001, the Form 1120 stated taxable income loss of <$5,679.00>.' 
The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
EAC 04 247 5 1039 
Page 4 
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 200 1 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 liabi~ities.~ 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 Forin 1120s federal tax return. 7'he 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 1120 U.S. Income Tax Return submitted by the petitioner. Schedule L found in that 
return indicates the following: 
In 2001, petitioner's Form 1 120 return stated current assets of $26,300.00 and $1 7,185.00 in 
current liabilities. Therefore, the petitioner had $9.1 15.00 in net current assets. Since the 
proffered wage is $39,291.20 per year, this sum is less than the proffered \\age. 
Therefore, from the date the Form ETA 750 was accepted for processing by the 11. S. Department of Labor, 
the petitioner had not established that it had the ability to pay the beneficiary the prof'fered wage at the time of 
filing through an examination of its net current assets. 
Counsel asserts on the appeal that there is another way to determine the ~~etitioner's ability to pay the 
proffered wage from the priority date by employing the beneficiary and replacing eyisting or former workers. 
Counsel cites no legal precedent for the contention, and, 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 assertions of counsel do not constitute evidence. Matter of Ohrnghc./~a, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Wages already paid to others are 
not available to prove the ability to pay the wage proffered to tlie beneficiary at the priority date of the petition 
and continuing to the present. 
The evidence submitted does not establish that the petitioner had the co~itinui~i~ ability to pay tlie proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh tlie evidence presented ill rile 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 ol'fice within the employment 
system of the Department of Labor. 
statement, a loss, that is below zero. 
2 
 According to Barron S Dictionary of Accountitrg Terms 1 17 (3rd ed. 2000), '.cul I ellt assets" consist of items 
having (in most cases) a life of one year or less. such as cash, marketable securltieb, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) with111 one >ear, such as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salariei). hl at 118. 
8 C.F.R. 8 204.5(g)(2). 
EAC 04 247 5 1039 
Page 5 
The burden of proof in these proceedings rests solely with the petitioner. Sectio~l 391 of the Act, 8 U.S.C. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.