dismissed EB-3 Case: Culinary Arts

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iPrvarim of ped privaGy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Wash~ngton. DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC-05 -0 12-53642 Office: VERMONT SERVICE CENTER 
 Date: OCT 3 1 2006 
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 1 153(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, chief 
Administrative Appeals Office 
EAC-05-0 12-53642 
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 food preparation and catering company. It seeks to employ the beneficiary permanently in 
the United States as a sous chef. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, 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 a brief and additional evidence.' 
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. 4 204.5(g)(2) states: 
Ability ofprospective 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 either 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, 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 4 204.5(d). Here, the Form ETA 750 was accepted for processing on 
April 27, 2001. The proffered wage as stated on the Form ETA 750 is $17.00 per hour ($35,360 per year). 
On the Form ETA 750B, signed by the beneficiary on April 25, 2001, the beneficiary did not claim to have 
worked for the petitioner. 
On the petition, the petitioner claimed to have been established in 2000, to have a gross annual income of 
$875,000, and to currently employ 12 workers. The record indicates the petitioner is structured as a limited 
liability company (LLC) and files its tax returns on Form 1065, U.S. Return of Partnership Income. The 
petitioner's fiscal year is based on a calendar year. 
The petition was submitted on October 18, 2004 without any regulatory-prescribed evidence but a letter from 
the petitioner's accountant to establish the petitioner's ability to pay the proffered wage. Therefore, the 
director issued a request for additional evidence (WE) on November 18, 2004 requesting additional evidence 
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. tj 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). The MO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
EAC-05-0 12-53642 
Page 3 
establish that the petitioner had the ability to pay the proffered salary of $35,360 per year as of April 27, 2001, 
the date of filing and continuing to the present. The director specifically requested either the 2001, 2002, and 
2003 United States federal corporate income tax returns, with all schedules and attachments, for the 
petitioner, or annual reports for 2001,2002 and 2003 which are accompanied by audited or reviewed financial 
statements. The director also requested the beneficiary's Form W-2 Wage and Tax Statements from 2001 if 
the beneficiary was employed since then. In response to the director's RFE, counsel submitted the 
petitioner's tax returns, Form 1065, U.S. Return of Partnership Income, for the calendar years 2001 through 
2003. 
The director determined that the evidence submitted did not establish that the petitioner had the ability to pay 
the proffered wage at the time of filing, and therefore, denied the petition on March 7, 2005. 
On appeal, counsel asserts that the depreciation and other non-cash deductions should be added back to the 
net income to demonstrate that the petitioner can pay the proffered wage. 
In determining the 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 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 claimed that the beneficiary 
did not start working for the petitioner until 2004. The record does not contain any evidence of the 
beneficiary's compensation from the petitioner for 2001 through 2003. On appeal the petitioner submits the 
beneficiary's W-2 form for 2004 and weekly paycheck stubs from February 12,205 to April 15,2005. These 
documents show that the petitioner paid the beneficiary $33,697.86 in 2004 and that the petitioner paid the 
beneficiary at the level of $16.827 per hour in the first four months of 2005. Therefore, wages actually paid 
to the beneficiary in 2004 were $1,662.14 less than the proffered wage and in 2005 the petitioner paid the 
beneficiary $0.173 less than the hourly proffered wage. The petitioner must demonstrate its continuing ability 
to pay the proffered wage beginning on the priority date, which in this case is 2001. Thus, even if the 
petitioner paid the beneficiary the full proffered wage in 2004 and 2005, the petitioner must show its ability to 
pay the proffered wage not only in 2004 and 2005, when counsel claims it actually began paying the proffered 
wage rate, but it must also show its continuing ability to pay the proffered wage in 2001 through 2003. 
Demonstrating that the petitioner is paying the proffered wage in a specific year may suffice to show the 
petitioner's ability to pay for that year, but the petitioner must still demonstrate its ability to pay for the rest of 
the pertinent period of time. Therefore, the petitioner did not establish that it employed and paid the full 
proffered wage in 200 1 through 2003. 
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 Tongatupu 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); Ubedu v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner's reliance on its gross receipts, depreciation, or wage expenses is misplaced. Showing that the 
petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner 
paid compensation to officers in excess of the proffered wage is insufficient. 
EAC-05-012-53642 
Page 4 
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. The court specifically rejected the 
argument that the Service should have considered income before expenses were paid rather than net income. 
On appeal counsel asserts that depreciation should be added back to the ordinary loss or gain in determining 
the petitioner's ability to pay the proffered wage and submits a letter from the petitioner's accountant to 
support his assertion. Counsel's reliance on depreciation and non-cash deductions is misplaced. The court in 
Chi-Feng Clzang further clearly noted: 
Plaintiffs also contend that depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua spolzte 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 
inco~~ze ,figuves 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 at 537 
The record contains copies of the petitioner's Form 1065 U.S. Return of Partnership Income for 2001, 2002 
and 2003. The tax returns demonstrate the following financial information concerning the petitioner's ability 
to pay the proffered wage of $35,360 per year from the priority date. 
In 2001, the Form 1065 stated net income' of $39,019; 
In 2002, the Form 1120s stated net income of $55,786; 
In 2003, the Form 1 120s stated net income of $23,195. 
Therefore, for the year 2003 the petitioner did not have sufficient net income to pay the proffered wage while 
its net income in 2001 and 2002 was sufficient to pay the beneficiary the proffered wage. The petitioner 
established its ability to pay the proffered wage for 2001 and 2002 through its net income, however, failed to 
establish such ability for 2003. The petitioner is obligated to demonstrate that it could pay the beneficiary the 
proffered wage in 2003 with its net current assets. 
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. We reject, however, counsel's assertion that the petitioner's total assets 
should have been considered in the determination of the ability to pay the proffered wage. The petitioner's 
total assets include depreciable assets that the petitioner uses in its business. Those depreciable assets will not 
2 
 Where a LLC's income is exclusively from a trade or business, CIS considers net income to be the figure for 
ordinary income, shown on line 22 of page one of the petitioner's Form 1065. The instructions on the Form 
1065, U.S. Return of Partnership Income, state on page one, "Caution, Include only trade or business income 
and expenses on lines la through 22." Where a LLC has income from sources other than from a trade or 
business, net income is found on Schedule K. The Schedule K (page 3 of Form 1065) is a summary schedule 
of all the partners' shares of the partnership's income, credits, deductions, etc. The net income is reported on 
Analysis of Net Income (Loss) line 1 Net income (loss). See Internal Revenue Service, Instructions for Form 
1065, at http://www .irsgov/pub/irs-pdfli 1065 .pdf. 
EAC-05-012-53642 
Page 5 
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 liabilities3 A LLC's year-end current assets are shown on Schedule L, lines 1 through 6 of Form 
1065. Its year-end current liabilities are shown on lines 15 through 17 of Form 1065. If a LLC'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 out of those net current assets. 
Calculations based on the Schedule L's attached to the petitioner's tax return for 2003 yield that the petitioner 
had current assets of $22,707, and current liabilities of 58,516, and thus, the net current assets in 2003 were 
$(35,809). Therefore, the petitioner did not have sufficient net current assets to pay the proffered wage in 
2003. 
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 the continuing ability to pay the beneficiary the proffered wage as 
of the priority date through an examination of wages paid to the beneficiary, or its net income or net current 
assets. 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
continuing ability to pay the proffered wage from the priority date. Counsel submits the petitioner's bank 
statements from January 2004 to March 2005 to establish the petitioner's ability to pay the proffered wage. 
However, counsel's reliance on the balance in the petitioner's bank account is misplaced. First, bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. $ 204.5(g)(2), required to illustrate 
a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. $ 204.5(g)(2) 
is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show 
the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third, 
no evidence was submitted to demonstrate that the hnds reported on the petitioner's bank statements somehow 
reflect additional available hnds that were not reflected on its tax return, such as the petitioner's taxable income 
(income minus deductions) or the cash specified on Schedule L that were considered in determining the 
petitioner's net current assets. 
On appeal counsel submits a letter from one of the petitioner's partners and executive chef. In that letter the 
petitioner advised that the beneficiary was hired in order to replace a sous chef of his company who previously 
retired. The record does not, however, name the worker, state his wage, verify his full-time employment, or 
provide evidence that the petitioner has replaced him with the beneficiary. In general, 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. Moreover, the AAO notes that the petitioner's tax returns indicate that the 
petitioner paid no salaries and wages to its employees during the years 2001 through 2003 despite it claimed to 
employ 12 workers on the Form I- 140. 
3 
 According to Barron's Dictionary of Accounting Terms 1 17 (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 118. 
EAC-05-012-53642 
Page 6 
The partner also promises to make additional capital contributions to the corporation if necessary in any 
future event that there was no sufficient income from the corporation to pay the beneficiary's salary. 
Counsel's reliance on future capital contributions to establish the petitioner's ability to pay in the past year is 
misplaced. First of all, LLC member's capital contribution is reflected on line 2 1 Partner's capital accounts of 
Schedule L, Form 1065, which is part of the petitioner's total liabilities. Capital contnbutions will not 
increase the petitioner's current assets and decrease the petitioner's current liabilities. Therefore, capital 
contributions cannot be considered in determining the petitioner's ability to pay the proffered wage. 
Furthermore, any future capital contribution will not change the petitioner's financial ability in the past. 
Counsel does not explain how the LLC member's capital contribution in any future event establishes the 
petitioner's ability to pay the proffered wage in 2003. 
The petitioner is a LLC. Although structured and taxed as a partnership, its owners enjoy limited liability 
similar to owners of a corporation. A LLC, like a corporation is a legal entity separate and distinct from its 
owners. The debts and obligations of the company generally are not the debts and obligations of the owners 
or anyone else.4 An investor's liability is limited to his or her initial investment. As the owners and others 
only are liable to his or her initial investment, the total income and assets of the owners and others and their 
ability, if they wished, to pay the company's debts and obligations, cannot be utilized to demonstrate the 
petitioner's ability to pay the proffered wage. The petitioner must show the ability to pay the proffered wage 
out of its own funds. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not 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 evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
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. 
Although this general rule might be amenable to alteration pursuant to contract or otherwise, no evidence 
appears in the record to indicate that the general rule is inapplicable in the instant case.