dismissed EB-3 Case: Culinary Arts

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
identifying data deleted to 
U- S. Citizenship 
prevent clearly unwarranted and Immigration 
invasion of personal privacy 
PUBLIC copy 
WAC 05 195 51178 
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 1 53(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 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 
DISCUSSION: The Director, California Service Center, denied the preference visa petition that 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 chef. 
As required by statute, a Form ETA 750, Application for Alien Employment Certification, approved by the 
Department of Labor (DOL) 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. 
The record shows that the appeal was properly and timely filed and makes a specific allegation of error in law 
or fact. The procedural history of this case is documented in 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 
decision of denial the sole issue in this case is whether or not the petitioner has demonstrated the continuing 
ability to pay the proffered wage beginning on the priority date. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(3)(A)(i), 
provides for granting 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. 
8 C.F.R. tj 204.5(g)(2) states: 
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 ths 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. In a case 
where the prospective United States employer employs 100 or more workers, the director may 
accept a statement fi-om a financial officer of the organization which establishes the prospective 
employer's ability to pay the proffered wage. In appropriate cases, additional evidence, such as 
profit/loss statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by the Service. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, the day the Form ETA 750 Application for Alien Employment Certification was accepted for processing 
by any office within the employment system of the DOL. See 8 C.F.R. tj 204.5(d). Here, the Form ETA 750 
was accepted for processing on April 30, 2001. The proffered wage as stated on the Form ETA 750 is $675 
per week, which equals $35,100 per year. 
The Form 1-140 petition in this matter was submitted on June 28, 2005. On the petition, the petitioner stated 
that it was established on August 1, 2000. The petition states that the petitioner's gross annual income is 
$453,903. The petitioner left blank the spaces provided for it to report its net annual income and the number 
or workers it employs. On the Form ETA 750, Part B, signed by the beneficiary on April 24, 2001, the 
beneficiary did not claim to have worked for the petitioner. The petition and the Form ETA 750 both indicate 
that the petitioner would employ the beneficiary in Corona del Mar, California. 
The AAO reviews de novo issues raised on appeal. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
The AAO considers all evidence properly in the record including evidence properly submitted on appeal.' 
In the instant case the record contains (1) copies of the 2001 and 2002 Form 1120-A U.S. Corporation Short- 
Form Income Tax Returns of Cuisine of India, (2) an unaudited 
profit and loss statement, (3) a letter dated April 27, 2005 from the petitioner's president and owner, and (4) a 
letter dated November 10, 2005 from the petitioner's financial consultant. The record does not contain any 
other evidence relevant to the petitioner's continuing ability to pay the proffered wage beginning on the 
priority date. 
The record also contains copies of the petitioner's owner's 2001, 2002, and 2003 Form 1040 U.S. Individual 
Income Tax Returns. 
as the petitioner's on the Form ETA 750 and the Form 1-140 submitted in this matter. This office finds that 
that corporation is the petitioner in this matter. The petitioner's tax returns show that it is a corporation, that 
its sole owner is Anju Sami, that it incorporated on August 1, 2000, and that it reports taxes pursuant to 
accrual convention accounting and a fiscal year running from October 1 of the nominal year to September 30 
of the following year. 
During its 2001 fiscal year, which ran from October 1, 2001 to September 30, 2002, the petitioner reported 
taxable income before net operating loss deductions and special deductions2 of $0. At the end of that year the 
petitioner's current liabilities exceeded its current assets. 
During its 2002 fiscal year, which ran from October 1, 2002 to September 30, 2003, the petitioner reported 
taxable income before net operating loss deductions and special deductions of $13,658. At the end of that 
year the petitioner's current liabilities exceeded its current assets. 
The petitioner's owner's April 27, 2005 letter states that the petitioner is able to pay the proffered wage. This 
office notes that, pursuant to 8 C.F.R. 5 204.5(g)(2), in the case of a company that employs 100 or more 
workers, self-certification of ability to pay the proffered wage may suffice. The instant case, however 
contains no evidence that the petitioner employs 100 or more workers. 
- 
1 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations at 8 C.F.R. 5 103.2(a)(l). The record in the instant case provides no 
reason to preclude consideration of any documents newly submitted on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988). 
2 
 For the purpose of the inquiry into the petitioner's ability to pay the proffered wage during a given year, the 
petitioner's taxable income before net operating loss deduction and special deductions is considered to be its 
net income. 
The petitioner's financial consultant's November 10, 2005 letter states that as the petitioner's owner is its sole 
shareholder her personal income and assets are available to pay the proffered wage. The financial consultant 
cites a decision of the State Board of Equalization of the State of California for the proposition that 
"shareholders and offices [sic] are personally liable for any outstanding taxes and debts [of a corporation]." 
The director denied the petition on January 19, 2006. On appeal, counsel argued that certain positions at the 
petitioner's restaurant are dispensable, specifically noting waiters, and that the wages paid to the incumbents 
in those positions might feasibly be diverted to pay the wage proffered in the instant case. 
Counsel cited the petitioner's unaudited profit and loss statement as evidence of its ability to pay the proffered 
wage and asserted that its depreciation deductions during various years represent additional funds available to 
pay wages. Further, counsel stated that the petitioner was established during 1984 and has been a successful 
restaurant business for over 20 years; and cites favorable critical reviews as evidence that the petitioner has a 
successful future. 
Finally, stated "Due to unrelated negotiations with the Internal Revenue Service regarding filing of tax returns 
for the years 2003-2005, Petitioner is unable to provide additional evidence in the form of tax returns 
or financial statements that would, on their face, support the Petitioner's contention that it is and has been able 
in fact to pay the proffered wage to the Beneficiary." 
Counsel's assertion that the petitioner is engaged in some unspecified type of negotiation with IRS does not 
alter the petitioner's obligation to demonstrate its continuing ability to pay the proffered wage beginning on 
the priority date consistent with the requirements of 8 C.F.R. 5 204.5(g)(2). Further, counsel's mere 
assertion, absent evidence, that the tax returns are unavailable, is insufficient excuse the petitioner's failure to 
provided them or to otherwise demonstrate its continuing ability to pay the proffered wage beginning on the 
priority date within the strictures of 8 C.F.R. 5 204.5(g)(2). 
Counsel's assertion that the petitioner employs superfluous workers, other than cooks, who could be 
dismissed in favor of the beneficiary, is unconvincing. In deducting the wages paid to those other employees 
the petitioner has represented them to be necessary to its business. 26 USC Subtitle A, Chapter 1, Subchapter 
B, Part VI, Sec. 162. The mere assertion that the beneficiary could dismiss a number of employs as necessary 
to pay the proffered wage is insufficient to sustain the burden of proof in this matter. 
Counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.F.R. 5 204.5(g)(2) makes 
clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, 
those financial statements must be audited. Unaudited financial statements are the representations of 
management. The unsupported representations of management are not reliable evidence and are insufficient 
to demonstrate the ability to pay the proffered wage. The unaudited financial statements will not be 
considered. 
Counsel's argument that the petitioner's depreciation deduction should be included in the calculation of its 
ability to pay the proffered wage is unconvincing. This office is aware that a depreciation deduction does not 
require or represent a specific cash outlay during the year claimed. It is a systematic allocation of the cost of 
a tangible long-term asset. It may be taken to represent the diminution in value of buildings and equipment, 
or to represent the accumulation of funds necessary to replace perishable equipment and buildings. But the 
cost of equipment and buildings and the value lost as they deteriorate are actual expenses of doing business, 
whether they are spread over more years or concentrated into fewer. 
This deduction represents the use of cash during a previous year, which cash the petitioner no longer has to 
spend. No precedent exists that would allow the petitioner to add its depreciation deduction to the amount 
available to pay the proffered wage. See Chi-Feng Chang v. Thornburgh, 719 F.Supp. 532 (N.D. Texas 1989). 
See also Elatos Restaurant Corp. v. Sava, 632 F.Supp. 1049 (S.D.N.Y. 1985). The petitioner's election of 
accounting and depreciation methods accords a specific amount of depreciation expense to each given year. 
The petitioner may not now shift that expense to some other year as convenient to its present purpose, nor 
treat it as a fund available to pay the proffered wage. 
Further, amounts spent on long-term tangible assets are a real expense, however allocated. Although counsel 
asserts that they should not be charged against income according to their depreciation schedule, he does not 
offer any alternative allocation of those costs.3 Counsel appears to be asserting that the real cost of long-term 
tangible assets should never be deducted from revenue for the purpose of determining the funds available to 
the petitioner to pay additional wages. Such a scenario is unacceptable. 
The petitioner is a corporation. A corporation is a legal entity separate and distinct fkom its owners or 
stockholders. Matter of M, 8 I&N Dec. 24, 50 (BIA 1958; AG 1958). The debts and obligations of the 
corporation are not the debts and obligations of the owners, the stockholders, or anyone else. See Matter of 
Aphvodite Investments, Ltd., 17 I&N Dec. 530 (Cornm. 1980). In a similar case, Sitar v. Ashcroft, 2003 WL 
22203713 (D.Mass. Sept. 18, 2003), the court stated, "nothing in the governing regulation, 8 C.F.R. 8 204.5, 
permits [CIS] to consider the financial resources of individuals or entities with no legal obligation to pay the 
wage." 
In her November 10, 2005 letter the petitioner's financial consultant stated that this, the most basic law of 
corporations, has been overturned. The case to which the financial consultant cites is a case in which the 
California Equalization Board pierced the corporate veil, that is, disregarded the general rule of limited 
liability of corporate shareholders. In individual cases, cases in which corporation is severely 
undercapitalized, for example, a court or other judicial body is able to disregard that general rule. This is 
common where, as was true in the case the financial consultant cited, that undercapitalization appears to have 
been an intentional tactic taken to avoid a legitimate debt or obligation.4 Further, even if the Equalization 
Board's holding were as abstract as the proposition for which the financial consultant cited it, this office notes 
that it is not bound by decisions of the California Equalization Board. 
3 
 Counsel did not urge, for instance, that the petitioner's purchase of long-term assets should be expensed 
during the year of purchase, rather than depreciated, for the purpose of calculating the petitioner's ability to 
pay additional wages, nor did he submit a schedule of the petitioner's purchases of long-term tangible assets 
during the salient years. 
4 
In the case cited, the corporation claimed inability to meet a tax and penalty obligation of $10,604.95, 
although it had loaned $74,899 to its owners during the appeal year and paid them cash distnbutions of 
$106,200 during the following year. 
No such reason exists to pierce the corporate veil in the instant case and the general rule that a corporation's 
owner or owners are not liable for its debts and obligations appears to apply. As the owners, stockholders, 
and others are not obliged to pay the petitioner's debts, the income and assets of the owners, stockholders, and 
others and their ability, if they wished, to pay the corporation's debts and obligations, are irrelevant to this 
matter and shall not be further considered. The petitioner must show the ability to pay the proffered wage out 
of its own funds. The petitioner's owner's individual tax returns, and any other evidence pertinent to her 
personal income and assets, are irrelevant to this matter and will not be considered. 
Counsel argues, further still, that the petitioner has operated successfully for 20 years5 and cites favorable 
critical reviews, apparently as an indication that the petitioner is, or will be, able to pay the proffered wage. 
Initially, this office notes that the petitioner stated on the Form 1-140 that it was established on August 1, 
2000 and on its tax returns that it incorporated on that date. The only indication in the record of earlier 
operation is counsel's assertion. 
The assertions of counsel are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980); 
Unsupported assertions of counsel are, therefore, insufficient to sustain the burden of proof. This office will 
not consider counsel's assertion that the petitioner has been in operation since before 2000. Further, pursuant 
to 8 C.F.R. 8 204.5(g)(2), the relative success of the petitioner's operations must generally be demonstrated 
with copies of annual reports, federal tax returns, or audited financial statements, rather than merely alleged 
by counsel. 
If counsel were able to demonstrate that the petitioner has a reasonable expectation of substantially increasing 
profits, then this office might overlook its failure to demonstrate its ability to pay the proffered wage with 
copies of annual reports, federal tax returns, or audited financial statements in keeping with the holding in 
Matter of Sonegawa, 12 I&N Dec. 6 12 (Reg. Comm. 1967). 
Sonegawa, however, relates to petitions filed during uncharacteristically unprofitable or difficult years and only 
withn a fiamework of significantly more profitable or successful years. During the year in which the petition 
was filed in that case the petitioning entity changed business locations and paid rent on both the old and new 
locations for five months. The petitioner also suffered large moving costs and a period of time during which it 
was unable to do regular business. 
In Sonegawa, the Regonal Commissioner determined that the petitioner's prospects for a resumption of 
successful business operations were well established. The petitioner was a fashion designer whose work had been 
featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. 
That petitioner's clients had been included in lists of the bestdressed California women. The petitioner lectured 
5 
 The regulation at 8 C.F.R. 5 204.5(g)(2) indicates that an exception may exist to the need to demonstrate the 
ability to pay the proffered wage with copies of annual reports, federal tax returns, or audited financial 
statements in the case of a petitioner who employs 100 or more workers. No such exception exists for 
companies in existence for more than 20 years. Although the petitioner's longevity, if demonstrated, might 
be a factor to consider, it would not, in itself, demonstrate the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date. 
on fashion design at design and fashion shows throughout the United States and at colleges and universities in 
California. The Regonal Commissioner's determination in Sonegawa was based in part on that petitioner's sound 
business reputation and outstanding reputation as a couturihre. 
Counsel is correct that, if losses or low profits are uncharacteristic, occur within a framework of profitable or 
successful years, and are demonstrably unlikely to recur, then those losses or low profits may be overlooked 
in determining the ability to pay the proffered wage. The petitioner's favorable critical reviews are the only 
evidence to which counsel cites in support of the assertion that the petitioner's fortunes will improve. The 
record contains no evidence that the petitioner's receipt of those reviews is a recently emerging phenomenon, 
rather than business as usual. Further, counsel did not demonstrate that favorable reviews necessarily, or even 
typically, presage greatly increased profits. No reason exists to believe, based on the favorable reviews, that 
the petitioner's profitability will improve, rather than remain flat. No unusual circumstances have been 
shown to exist in this case to parallel those in Sonegawa, nor has it been established that 2001 and 2002 were 
uncharacteristically unprofitable years for the petitioner. Assuming that the petitioner's business will flourish, 
with or without hiring the beneficiary, is speculative. 
The petitioner must establish that its job offer to the beneficiary is realistic. Because filing 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. 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. 612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will examine 
whether the petitioner employed 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 did not establish that it employed and paid the beneficiary. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during a given period, the AAO will, in addition, examine the net income figure reflected on 
the petitioner's federal income tax return, without consideration of depreciation or other expenses. CIS may 
rely on federal income tax returns to assess a petitioner's ability to pay a proffered wage. 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. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). See also 8 C.F.R. 8 204.5(g)(2). 
Showing that the petitioner's gross receipts exceeded the proffered wage, or greatly exceeded it, is 
insufficient. Similarly, showing that the petitioner paid total wages in excess of the proffered wage, or greatly 
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. 
 The court specifically rejected the argument that CIS should have considered income before 
expenses were paid rather than net income. 
The petitioner's net income is not the only statistic that may be used to show the petitioner's ability to pay the 
proffered wage. If the petitioner's net income, if any, during a given period, added to the wages paid to the 
beneficiary during that period, if any, do not equal the amount of the proffered wage or more, the AAO will 
review the petitioner's assets as an alternative method of demonstrating the ability to pay the proffered wage. 
The petitioner's total assets, however, are not available to pay the proffered wage. The petitioner's total 
assets include those assets the petitioner uses in its business, which will not, in the ordinary course of 
business, be converted to cash, and will not, therefore, become funds available to pay the proffered wage. 
Only the petitioner's current assets -- the petitioner's year-end cash and those assets expected to be consumed 
or converted into cash within a year -- may be considered. Further, the petitioner's current assets cannot be 
viewed as available to pay wages without reference to the petitioner's current liabilities, those liabilities 
projected to be paid within a year. CIS will consider the petitioner's net current assets, its current assets 
minus its current liabilities, in the determination of the petitioner's ability to pay the proffered wage. 
Current assets include cash on hand, inventories, and receivables expected to be converted to cash or cash 
equivalent within one year. Current liabilities are liabilities due to be paid within a year. On a Schedule L the 
petitioner's current assets are typically found at lines l(d) through 6(d). Year-end current liabilities are 
typically6 shown on lines 16(d) through 18(d). If a corporation's 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. The net current assets are expected to be converted to cash as the proffered wage becomes due. 
The proffered wage is $35,100 per year. The priority date is April 30,200 1. 
The priority date fell within the petitioner's 2000 fiscal year, which ended on September 30, 2002. The 
record contains no reliable evidence pertinent to the petitioner's finances during that fiscal year. 
 The 
petitioner has not demonstrated the ability to pay the proffered wage from April 30, 2001 until September 30, 
2002. 
During its 2001 fiscal year, which ran from October 1, 2001 to September 30, 2002, the petitioner reported 
taxable income before net operating loss deductions and special deductions of $0. The petitioner is unable, 
therefore, to demonstrate the ability to pay any portion of the proffered wage out of its profit during that year. 
At the end of that year the petitioner had negative net current assets. The petitioner is unable, therefore, to 
demonstrate the ability to pay any portion of the proffered wage out of its net current assets during that year. 
The petitioner submitted no reliable evidence of any other funds available to it during its 2001 fiscal year with 
which it could have paid the proffered wage. The petitioner has not demonstrated its ability to pay the 
proffered wage during its 2001 fiscal year. 
During its 2002 fiscal year, which ran from October 1, 2002 to September 30, 2003, the petitioner reported 
taxable income before net operating loss deductions and special deductions of $13,658. That amount is 
insufficient to pay the proffered wage. At the end of that year the petitioner had negative net current assets. 
The petitioner is unable, therefore, to demonstrate the ability to pay any portion of the proffered wage out of 
-- 
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6 
The location of the taxpayer's current assets and current liabilities varies slightly from one version of the 
Schedule L to another. 
its net current assets during that year. The petitioner submitted no reliable evidence of any other funds 
available to it during its 2002 fiscal year with which it could have paid the proffered wage. The petitioner has 
not demonstrated its ability to pay the proffered wage during its 2002 fiscal year. 
The petition in this matter was submitted on June 28, 2005. On that date the petitioner's fiscal year 2003 tax 
return would ordinarily have been available. Counsel's mere assertion, absent evidence, that it is legitimately 
unavailable is insufficient to excuse the failure to provide it. The petitioner has failed to demonstrate the 
ability to pay the proffered wage pursuant to 8 C.F.R. 5 204.5(g)(2) during its 2003 fiscal year. 
The petitioner's 2004 fiscal year ended on September 30, 2005, and was unavailable when the visa petition 
was filed. On October 13, 2005 the service center issued a request for evidence in this matter, requesting 
additional evidence of the petitioner's continuing ability to pay the proffered wage beginning on the priority 
date. On that date the petitioner's fiscal year 2004 had ended, but its tax return was not yet due,' and may 
have been unavailable. For the purpose of today's decision, the petitioner is relieved of the burden of, 
demonstrating its ability to pay the proffered wage during its 2004 fiscal year and later fiscal years. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during the period from 
April 30, 2001 to September 30, 2002. The petitioner also failed to demonstrate the ability to pay the 
proffered wage during its 200 1,2002, and 2003 fiscal years. Therefore, the petitioner has not established that 
it had the continuing ability to pay the proffered wage beginning on the priority date. 
The burden of proof in these proceedings rests solely upon 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. 
7 
 A corporate taxpayer's Form 1 120, 1 120-A, or 1 120s is ordinarily due the 1 5th day of the third month after 
the end of its tax year. In the instant case the petitioner's 2004 fiscal year ended on September 30, 2005, so 
its 2004 return was due December 15,2005.