dismissed EB-3 Case: Culinary Arts

identifying data deleted to 
prevent clearly unwarranted 
in~seloaof~pri~ 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W.. Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
0~ 
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. 9 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a restaurantldiner. It seeks to employ the beneficiary permanently in the United States as a 
foreign foods specialty cook. 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. 
On appeal, counsel submits additional evidence and asserts that the petitioner has had the continuing financial 
ability to pay the proffered salary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 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. 8 204.5(g)(2) provides: 
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. In a case where the prospective United States employer employs 100 or more 
workers, the director may accept a statement from 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 profitlloss statements, bank account records, or personnel records, 
may be submitted by the petitioner or requested by [Citizenship and Immigration Services 
(CIS)]. 
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 tj 204.5(d). Here, the Form ETA 750 was accepted for processing on April 23, 
2001. The proffered wage as stated on the Form ETA 750 is $13.00 per hour, which amounts to $27,040 per 
annum. On the ETA 750B, which the beneficiary signed on April 10,2001, he claims that he has worked for the 
beneficiary since July 1998. 
On Part 5 of the visa petition, the petitioner claims to have been established in 1997, to currently employ forty- 
two workers, and to have a gross annual income of $1.926 million dollars and a net annual income of $250,000. 
In support of its ability to pay the beneficiary's proposed wage offer of $27,040 per year, the petitioner submitted 
partial copies of its Form 1120S, U.S. Income Tax Return for an S Corporation for 2001, 2002, and 2003. They 
contained either the first two or three pages and omitted attached statements and various forms including the 
Schedule L balance sheet.' The tax returns reflect that the petitioner files its federal tax returns using a standard 
calendar year. In 2001, it reported -$15,788 in ordinary income; in 2002, it declared -$56,579 in ordinary income, 
and in 2003, ordinary income was reported as -$46,432. 
On November 22, 2004, the director denied the petition, noting that the petitioner's federal tax returns had 
reported losses of ordinary income in each of the relevant years, and were insufficient to demonstrate the 
petitioner's ability to pay the proposed wage offer of $27,040. 
On appeal, counsel contends that the petitioner's gross income and the beneficiary's employment with the 
petitioner for the past six years is indicative of the petitioner's ability to pay the proffered wage. Counsel also 
asserts that the depreciation expense should be added back to the calculation of the petitioner's net income. 
Counsel also relies on the petitioner's reasonable expectations of increased profits pursuant to Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967), as justifying approval of the petition, citing the petitioner's 
gross income and its positive business record since 1997. 
 Ily, counsel provides a letter from his 
colleague, Mr. who specializes in tax work. Mr. lso emphasizes that the petitioner has 
reported substantial gross income of $2,012,996 in 2001. He further states that the petitioner ahs employed the 
beneficiary since 1998 and that his wages are already included in the petitioner's large payroll. He also maintains 
that the petitioner's depreciation expense should considered as a paper deduction and taken into consideration in 
determining the petitioner's ability to pay the proffered wage. 
The AAO notes that the Department of Labor's function in determining whether the hiring of an alien for a 
certified position will adversely affect the wages and working conditions of similarly employed domestic U.S. 
workers does not impact the jurisdiction of CIS to review whether the petitioner is making a realistic job offer and 
by evaluating the qualifications of a beneficiary for the job CIS is empowered to make a de novo determination 
of whether the alien beneficiary is qualified to fill the certified job and receive entitlement to third preference 
status. See Tongatapu Woodcraft Hawaii, Ltd. v. INS, 736 F.2d 1305, 1308 (9th Cir. 1984). Part of this authority 
includes the right to inquire into whether the employer is able to pay the alien beneficiary's wages. Ubeda v. 
Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
In determining a petitioner's ability to pay a proffered wage, CIS reviews whether a petitioner may have 
employed a beneficiary during a given period. If the petitioner establishes by documentary evidence that it may 
have employed the beneficiary at a salary equal to or greater than the proffered wage during a given period, the 
- 
1 
 Net current assets are the difference between the petitioner's current assets and current liabilities and represent a 
measure of a petitioner's liquidity during a given period. Besides net income, and as an alternative method of 
reviewing a petitioner's ability to pay the proffered wage, CIS will examine a petitioner's net current assets as a 
possible readily available resource out of which a proffered wage may be paid. A corporation's year-end current 
assets and current liabilities are shown on Schedule L of a corporate tax return. Current assets are found on 
line(s) l(d) through 6(d) and current liabilities are specified on line(s) 16(d) through 18(d). If a corporation's 
year-end 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. 
evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. To the extent 
that the petitioner paid wages less than the proffered salary, those amounts will be considered in calculating the 
petitioner's ability to pay the proffered wage. If any shortfall between the actual wages paid by a petitioner to a 
beneficiary and the proffered wage can be covered by either a petitioner's net income or net current assets during 
the given period, the petitioner is deemed to have demonstrated its ability to pay a proffered salary. In this case, 
while the record suggests that the petitioner employed the beneficia no first-hand evidence of any 
compensation paid to the beneficiary has been provided. Although Mr. dh affirms that such compensation 
would have been included in the petitioner's payroll,2 it is noted that no supporting documentation has been 
offered to corroborate the beneficiary's employment or amount of wages paid during 2001,2002, or 2003. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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 taxable income figure reflected on the 
petitioner's federal income tax return, without consideration of depreciation or other expenses. If it equals or 
exceeds the proffered wage, the petitioner is deemed to have established its ability to pay the certified salary 
during the period covered by the tax return. 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. "The [CIS] may 
reasonably rely on net taxable income as reported on the employer's return." Elatos Restaurant Corp. v. Sava, 
632 F. Supp. 1049, 1053 (S.D.N.Y. 1986) ((citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, supra, and 
Ubeda v. Palmer, supra; see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 536 (N.D. Texas 1989); 
K. C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985). 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 as is argued here. The court specifically rejected the argument that the Service should 
have considered income before expenses were paid rather than net income. 
The depreciation deduction will not be included or added back to the net income. This figure recognizes that the 
cost of a tangible asset may be taken as a deduction to represent the diminution in value due to the normal wear 
and tear of such assets as equipment or buildings or may 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 represents a real expense of doing business, whether it is spread over more years or concentrated into 
fewer. With regard to depreciation, the court in Chi-Feng Chang further noted: 
Plaintiffs also contend that 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 
2 
The petitioner reported no salaries or wages on its tax returns. Mr. 
 references to the size of its 
payroll correspond to "cost of labor" on the respective tax returns. 
Page 5 
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. (Original emphasis.) Chi-Feng at 536. 
If an examination of the petitioner's net taxable income or wages that may have been paid to the beneficiary fail 
to successfully demonstrate an ability to pay the proposed wage offer, CIS will review a petitioner's net current 
assets. As noted above, this calculation may not be made as the petitioner submitted incomplete copies of its tax 
returns. 
Counsel cites Matter of Sonegawa, supra, in claiming that the petitioner's increasing profits support its future 
prospects for success and establishes its ability to pay the proffered wage. In Matter of Sonegawa, an appeal was 
sustained where the expectations of increasing business and profits supported the petitioner's ability to pay the 
proffered wage. That case, however, related to petitions filed during uncharacteristically unprofitable or difficult 
years within a framework of profitable or successful years. During the year in which the petition was filed, the 
Sonegawa petitioner changed business locations, and paid rent on both the old and new locations for five 
months. There were large moving costs and a period of time when business could not be conducted. The 
Regional Commissioner determined that the prospects for a resumption of successful operations were well 
established. He noted that the petitioner was a well-known fashion designer who had been featured in Time and 
Look. Her clients included movie actresses, society matrons and Miss Universe. The Regional Commissioner's 
determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding 
reputation as a couturiere. In this case, the three incomplete federal tax returns contained in the record do not 
represent a framework of profitable years analogous to the Sonegawa petitioner. Each year, the petitioner 
reported a loss of ordinary income. The AAO cannot conclude that the petitioner has demonstrated that unusual 
circumstances have been shown to exist in this case, which parallel those in Sonegawa. 
Based on the evidence contained in the record and after consideration of the evidence and argument presented on 
appeal, the AAO concludes that the petitioner has not demonstrated its continuing financial ability to pay the 
proffered as of the priority date of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed