dismissed EB-3 Case: Culinary

identifying data deleted to 
pmmt clearly unwammted 
invasion of penonal privscy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER AUG 0 9 2007 
EAC-03-176-5 1721 
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 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. 
Robert P. Wiemann, ~hiebj 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Director (Director), Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) 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, the petition is accompanied by a Form ETA 750, Application for Alien Employment 
Certification, approved by the Department of Labor (DOL). In connection with the beneficiary's Form 1-130, 
Petition for Alien Relative. the director served the petitioner with notice of intent to deny the petition (NOID). 
The director found that the Form 1-1 30 was filed on September 26, 1995 by th 
and the petition was denied on December 27, 1996 because the marriage certificate submitted for 
and the beneficiary was verified as being fraudulent. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's December 12, 2005 decision, the single issue in this case is whether or not the 
beneficiary entered into a fraudulent marriage for the purpose of obtaining United States immigration benefits 
and to evade United States immigration law. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal1. On appeal counsel 
submits a brief and resubmits the affidavit of the beneficiary previously submitted in response to the NOID. 
The relevant evidence in the record includes an affidavit of the 
 does not contain any 
other evidence relevant to the beneficiary's previous marriage to 
On appeal, counsel asserts that section 204(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
8 1154(c), does not apply to the beneficiary because he did not have the intent to defraud and knowledge of 
the fraud since he did not sign any of the prepared forms for the 1-130 petition and has never met or been 
married to and he was unaware that the documents filed on his behalf were based on a claim of 
marriage. 
Section 204(c) of the Act, 8 U.S.C. 5 1154(c), states in pertinent part: 
No immigrant petition shall be approved if (1) the beneficiary has been accorded, or has 
sought to be accorded, an immediate relative or preference status as the spouse of a United 
States citizen or the spouse of an alien lawfully admitted for permanent residence, by reason 
of a marriage determined by the Attorney General to have been entered into for the purpose 
of evading immigration laws or (2) the Attorney General has determined that the alien has 
attempted or conspired to enter into a marriage for the purpose of evading immigration laws. 
The regulation at 8 C.F.R. 8 204.2(c)(ii) states: 
1 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. fj 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa 
petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for 
the purpose of evading the immigration laws. The director will deny a petition for an 
immigrant visa classification filed on behalf of an alien for whom there is substantial and 
probative evidence of such an attempt or conspiracy. Although it is not necessary that the 
alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence 
of the attempt or conspiracy must be contained in the alien's file. 
The denial of the instant 1-140 petition is in connection with the Form 1-130 and 
 orm 1-485 filed 
on behalf of the beneficiary. The record shows that a United States citizen named 
 filed a Form I- 
130 on behalf of the beneficiary as a United States citizen's spouse with Immigration and Naturalization 
Service (now CIS) New York Distnct Office on September 26, 1995. 
 The 1-130 petition includes a 
Certificate of Marriage for and the beneficiary issued by, City Clerk of the City of 
New York in 1994. The district director clearly indicated in his denial dated December 27, 1996 that the 
marriage certificate submitted in connection with the beneficiary's marriage-based petition was fraudulent 
and that the petition was based on a fraudulent marriage. 
Counsel argues on appeal that the beneficiary has never knowing1 
 raudulent documents in 
support of an 1-13011-485 application on his behalf in connection with 
 that he was never aware 
r 
that the person representing him submitted an 1-13011-485 application ase upon a marriage to a United 
States citizen; that he did not sign any immigration documents with the knowledge that he had entered into a 
fraudulent marriage, and that he did not know that the actions taken by the person representing him were for 
the purpose of evading United States immigration laws. However, counsel did not submit any documents or 
evidence to support these arguments. 
 The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec 190 (Reg. Comm. 1972)). Further, the AAO finds counsel's 
argument inconsistent with the facts. 
The record shows that on the same day filed the Form 1-130 with the CIS New York District 
Office, the beneficiary also concurrently filed his Form 1-485 adjustment of status application with the same 
CIS office. The application filed by the beneficiary included Form 1-45' Form G-325 and fingerprint cards. 
All the three items contain the beneficiary's signatures. Counsel claims that the signatures were forged. 
However, counsel does not submit an expert opinion or any other documents to prove that the signatures on 
the Forms 1-485 and G-325A, and the fingerprint cards were forged. 
Moreover, the record indicates that the beneficiary filed his employment authorization document (EAD) 
application with the CIS New York District Office based on the concurrently filed application for adjustment 
of status with the family-based immigrant petition. He was issued the EAD and based on the EAD, the 
beneficiary also applied for his social security number. 
In response to the director's NOID, counsel submitted an affidavit of the beneficiary dated July 15, 2004. In 
this affidavit, the beneficiary asserted that: 
Page 4 
In 1995 I was approached by an individual in Danbury, Connecticut name= who told 
me that she could make me legal; 
I was told by the individual assisting me that she had the authority to sign documents for me 
and would assist me in obtaining legal status within the United states; 
In 1993 I met a woman named on 
 in Danbury, CT. She informed me that 
she could legally assist me in obtaining legal immigrant status within the United States. I 
paid her $100.00 and gave her my contact information. I later received a notice in the mail to 
go and pick up my employment card from the Immigration Office in Hartford. I then applied 
for a Social Security Number through the mail and was sent my number. I had no knowledge 
that the documents filed on my behalf were fraudulent. I have not had any contact with this 
woman since and could be unable to locate her again. I never signed any documents prepared 
by her, but she told me that she was authorized to obtain legal status for me. I had no idea 
that she was involved in a fraudulent scheme. 
Although the beneficiary contended that he never retained an attorney for the purpose of filing documents 
with CIS in 1995, never signed a representative agreement with an attorney for representation with CIS in 
1995, and never signed any immigration documents, it is clear that the beneficiary paid $100 to assist 
him in obtaining permanent residence. 
had done on his behalf because he was not Counsel claimed that the beneficiary did not know what 
familiar with the American immigration laws and his 
 ng is was poor that time. That assertion is not 
persuasive. The record shows that the beneficiary entered the United States on April 25, 1989 without 
inspection. The record shows that the beneficiary filed Form 1-589, Request for the United States 
on February 6, 1995. It is not persuasive that the beneficiary did not know what 
 would do for him 
because he did not understand English very well and was not familiar with 
 after he stayed 
for 6 years in the United States and filed an asylum application. 
There is substantial and robative evidence in the record of proceeding to support a reasonable inference that 
the prior marriage to was entered into for the immigration laws. The 
beneficiary, pursuant to his affidavit, states that he has never met 
 and has never been married. The 
beneficiary received an 
 him to live and work in the 
United States. The received an immigration 
benefit from this fake that would have rendered 
him subject to removal proceedings. 
 Pursuant to a notice dated December 27, 1996, CIS notified the 
beneficiary that his application for adjustment of status as a permanent resident was denied and that his 
employment authorization was terminated. The beneficiary creates a tale about a lady named whose 
name does not appear on any of the paperwork pertaining to the Form 1-130. Thus, the director's 
determination that the beneficiary sought to be accorded an immediate relative or preference status as the 
spouse of a US citizen by reason of a marriage determined by CIS to have been entered into for the purpose of 
evading the immigration laws is affirmed. 
Beyond the director's decision and counsel's assertions on appeal, the AAO has identified additional ground 
of ineligibility and will discuss whether or not the petitioner has established that it had the continuing ability 
to pay the proffered wage beginning on the priority date until the beneficiary obtains lawful permanent 
residence. An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 
345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the 
AAO reviews appeals on a de novo basis). 
The regulation 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 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. See 8 C.F.R. 5 
204.5(d). 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. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on December 27, 1999. The proffered wage as stated on the Form 
ETA 750 is $1 1.79 per hour ($24,523.20 per year). The evidence in the record of proceeding shows that the 
petitioner is structured as an S corporation. The petitioner claimed to have been established in 1993, to have a 
gross annual income of $2,500,000, to have a net annual income of $75,000, and to currently employ 70 
workers. According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. 
On the Form ETA 750B signed on December 16, 1999, and the Form G-325A signed on December 3,2002, 
the beneficiary claimed to have worked for the petitioner since April 1999. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. 
See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (CIS) requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the 
circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. 
See Matter of Sonegawa, 12 I&N Dec. 6 12 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, 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. In the 
instant case, the petitioner submitted the beneficiary's W-2 forms for 2000 and 2001. The record does not 
Page 6 
contain any other documentary evidence to show that the petitioner paid the beneficiary in the relevant years. 
The W-2 forms for 2000 and 2001 indicate that the petitioner paid the beneficiary $1 9,883.00 in 2000 and 
$1,972.50 in 2001. Thus, the petitioner failed to establish its ability to pay the proffered wage through wages 
paid to the beneficiary from 1999 onwards. The petitioner is still obligated to demonstrate that it could pay 
the full proffered wage in 1999 and 2002 through the present, and that it could pay the difference of $4,640.20 
in 2000 and $22,550.70 in 2001 between wages actually paid to the beneficiary and the proffered wage 
respectively. 
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 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, 719 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. 111. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on its gross income and gross profit is misplaced. Showing that the petitioner's total income 
exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the 
proffered wage is insufficient. 
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now CIS, 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. Reliance on the petitioner's 
depreciation in determining its ability to pay the proffered wage is misplaced. The court in K.C.P. Food Co., 
Inc. v. Sava specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income jigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng Chang at 537. 
The petitioner submitted Form 1 120s U.S. Income Tax Return for an S Corporation filed by -or 
1999 through 2002 as evidence of the petitioner's ability to pay the proffered wage.2 The tax returns for 1999 
through 2002 demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage from the priority date: 
2 
It is noted that the record of proceeding 
 has a different address from the 
petitioner. 
 However, the AAO will review 
evidence shows that bot- and the petitioner is owned by 
 and identifies 
themselves with the same federal employer identification number. 
In 1999, the Form 1 120s stated a net income3 of $8,376. 
In 2000, the Form 1120s stated a net income of $3,073. 
In 2001, the Form 1 120s stated a net income of $49,806. 
In 2002, the Form 1 120s stated a net income of $6,180. 
Therefore, in 1999 the petitioner did not have sufficient net income to pay the proffered wage of $24,523.20 
that year; in 2000, the petitioner's net income of $3,073 was not sufficient to pay the difference of $4,640.20 
between wages actually paid to the beneficiary and the proffered wage; in 2001, the petitioner's net income of 
$49,806 was sufficient to pay the difference of $22,550.50 between wages actually paid to the beneficiary and 
the proffered wage; and in 2002, the petitioner had insufficient net income to pay the proffered wage. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, the petitioner's 
total assets must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in 
the determination of the petitioner's ability to pay the proffered wage. Rather, 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. Its year-end current 
liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net current assets and 
the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. 
The petitioner's net current assets during 1999 were $(52,994). 
The petitioner's net current assets during 2000 were $(39,729). 
The petitioner's net current assets during 2002 were $(76,890). 
Therefore, for the years 1999, 2000 and 2002, the petitioner had insufficient net current assets to pay the 
proffered wage or the difference between wages actually paid to the beneficiary and the proffered wage. 
3 
Where an S corporation's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on line 21 of page one of the petitioner's Form 1 120s. The instructions on 
the Form 1120s U.S. Income Tax Return for an S Corporation state on page one, "Caution: Include only trade 
or business income and expenses on lines 1 a through 2 1 ." However, where an S corporation has income from 
sources other than from a trade or business, net income is found on Schedule K. The Schedule K form related 
to the Form 1120s states that an S corporation's total income from its various sources are to be shown not on 
page one of the Form 1120s' but on line 23 of the Schedule K, Shareholders' Shares of Income, Credits, 
Deductions, etc. See Internal Revenue Service, Instructions for Form 1120s (2003)' available at 
http://www.irs.gov/pub/irs-priorli 1 120s--200 pd Instructions for Form 1 120s (2002), available at 
http://www.irs.gov/pub/irs-priorli 1 120s--2002 .pdf. 
4 
According to Barron 's Dictionary of Accounting Terms 11 7 (3" 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 1 18. 
Page 8 
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 continuing ability to pay the beneficiary the proffered wage as of 
the priority date in 1999, 2000 and 2002 through an examination of wages paid to the beneficiary, its net 
income or its net current assets. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.