dismissed EB-3 Case: Culinary Arts

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
06 
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. 
 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 
DISCUSSION: The Director, California Service Center, denied the preference visa petition that is now 
before the Administrative Appeals Office 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 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 that it failed to demonstrate that the beneficiary is qualified for the 
proffered position. The director denied the petition accordingly. 
On appeal counsel submitted a brief and additional evidence. 
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 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. 5 204.5(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. 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 
profit/loss statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by the Service. 
The regulation at 8 C.F.R. 4 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled workers, professionals, or 
other workers must be supported by letters from trainers or employers gving 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 slulled 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 Department of Labor. See 8 C.F.R. 8 204.5(d) 
and 8 C.F.R. 5 204.5(g)(2). 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. Cornm. 1977). Here, the Form ETA 750 was accepted for processing on April 24, 2001. The 
proffered wage as stated on the Form ETA 750 is $14 per hour, which equals $29,120 per year. The Form 
ETA 750 states that the proffered position requires two years of experience in the job offered. 
On the petition, the petitioner stated that it was established during 1997 and that it employs four workers. The 
petition states that the petitioner's gross annual income is $104,323 and that its net annual income is $24,132. 
On the Form ETA 750, Part B, signed by the beneficiary on July 2, 2003, the beneficiary claimed to have 
worked for the petitioner as a chef since November 1997. The beneficiary did not claim any other qualifying 
experience. Both the petition and the Form ETA 750 indicate that the petitioner would employ the 
beneficiary in Van Nuys, California. 
In support of the petition, counsel submitted (1) a copy of the petitioner's owner's 200 1 and 2002 Form 1040 
U.S. Individual Income Tax Returns, (2) a statement pertinent to a credit line held by the petitioner, and (3) 
documents pertinent to ownership of real estate. The documents submitted with the petition did not include 
any evidence pertinent to the beneficiary's qualifications for the proffered position. 
The tax returns submitted show that during 2001 and 2002 Mohammed S. Rahman owned the petitioner as a 
sole proprietorship. 
The Schedule C included with the petitioner's owner's 2001 tax return shows that the petitioner paid no 
wages during that year and returned net income of $12,429. The petitioner's owner declared adjusted gross 
income of $12,725, including all of the petitioner's profit. During that year the petitioner's household had 
five members. 
The Schedule C included with the petitioner's owner's 2002 tax return shows that the petitioner paid no 
wages during that year and returned net income of $24,132. The petitioner's owner declared adjusted gross 
income of $24,838, including all of the petitioner's profit. During that year the petitioner's household had 
four members. 
The credit line statement is dated April 18, 2002 and shows that the petitioner then had a $20,000 credit line 
with a $17,222 balance. 
The real estate documents include 2001 and 2002 mortgage interest statements, and a 2002 tax statement. 
Those documents show that the petitioner's owner owns at least one real properly of an unidentified type and 
location. The 2002 mortgage interest statement shows a principal balance of $243,10 1.10. 
Page 4 
Because the evidence submitted was insufficient to demonstrate the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date and insufficient to demonstrate that the beneficiary is qualified 
for the proffered position pursuant to the terms of the approved labor certification, the California Service 
Center, on January 10, 2005, requested, inter alia, additional evidence pertinent to that ability. The service 
center noted that the petitioner had submitted evidence pertinent to 2001 and 2002, but should submit 
evidence for 2003 and 2004. The service center also specifically requested a statement of the petitioner's 
owner's family's recurring monthly expenses. 
In addition the service center requested evidence that the beneficiary has the requisite employment experience 
as stated on the Form ETA 750. Finally, the service center requested that the petitioner state whether the 
beneficiary was currently working for it. If so, it was instructed to state the date upon which he began to 
work for the petitioner and to provide Form W-2 Wage and Tax Statements for each year it had employed the 
beneficiary. 
In response, counsel submitted (1) a copy of the petitioner's owner's 2003 Form 1040 U.S. Individual Income 
Tax Return, (2) a budget statement of the petitioner's owner's recurring monthly expenses, a 2004 W-2 form, 
(3) copies of the petitioner's California Form DE-6 quarterly wage reports, and (5) a letter dated February 7, 
2005 from the petitioner's owner. 
The Schedule C attached to the 2003 return shows that the petitioner paid no wages during that year but 
returned a net profit of $24,372. The Form 1040 U.S. Individual Income Tax Return indicates that during that 
year the petitioner's owner declared adjusted gross income of $25,050 including all of the petitioner's profit. 
The petitioner's household consisted of four people during that year. 
The budget submitted shows that the petitioner's owner requires $2,386 to pay his family's recurring monthly 
expenses, or a total of $28,632 per year. The 2004 W-2 form shows that the petitioner paid wages of $8,960 
to the beneficiary during that year. 
The petitioner's Form DE-6 wage reports submitted cover the third and fourth quarters of 2004 and show that 
the petitioner employed four workers during each of those quarters including the petitioner. The petitioner 
paid the beneficiary $2,240 and $6,720 during those two quarters, respectively, for total of $8,960, as was 
shown on the 2004 W-2 form. 
In his February 7, 2005 letter the petitioner's owner stated that the petitioner's 2004 tax return was 
incomplete, but that it would be submitted when ready. The petitioner's owner also stated that the beneficiary 
had commenced working for the petitioner during September 2004. The petitioner's owner stated that the 
petitioner has additional experience in Bangladesh but misplaced the employment verification letter and 
required additional time to produce it. The petitioner's owner provided no W-2 forms and no other evidence 
that the beneficiary has qualifying employment experience. 
The Form ETA 750B asks that the beneficiary report all jobs held during the last three years and, in addition, 
all jobs related to the occupation for which the beneficiary is seeking certification. On the ETA 750B 
submitted in this case, as was noted above, the beneficiary stated that he had been working for the petitioner 
since November 1997, but did not report any other employment experience. 
Page 5 
The director determined that the evidence submitted did not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date and, on March 3, 2005, denied the petition. 
The director also found that the evidence did not demonstrate that the beneficiary is qualified for the proffered 
position pursuant to the terms of the approved Form ETA 750 labor certification. In addition the director 
noted the discrepancy between the beneficiary's statement on the Form ETA 750 B that he had worked for the 
petitioner since November 1997 and the statement of the petitioner's owner, in his February 7, 2005 letter, 
that the beneficiary began worlung for the petitioner during September 2004. The director also noted that the 
petitioner claimed, on Schedule C of its income tax returns, not to have paid any wages during the salient 
years, although it claimed on the Form 1-140 petition to employ four workers.' 
On appeal, counsel stated that a proposed change to 8 C.F.R. $204.5(g)(2) would not require a petitioner to 
establish its ability to pay the proffered wage, but merely that it is a bona fide employer. Counsel further 
stated that the beneficiary continued to expect to receive an employment verification letter pertinent to his 
previous employment in Bangladesh. 
Subsequently counsel submitted (1) copies of monthly statements pertinent to the petitioner's owner's bank 
account, (2) California Form DE-6 quarterly wage reports, (3) photocopies of two checks drawn on the 
petitioner's bank account and payable to the beneficiary, (4) a copy of an additional California Form DE-6 
quarterly report, (5) a revised Form ETA 750B, (6) a new employment verification letter, (7) a letter from the 
petitioner's owner and manager, (8) additional evidence pertinent to the petitioner's owner's ownership of 
real estate, and (9) a brief. 
Although the additional submission to supplement the appeal is dated August 21, 2006 and was received on 
August 23, 2006, it did not include a copy of the petitioner's owner's 2004 tax return, which CIS previously 
requested and which counsel stated would be provided when it was complete, which should have been during 
April of 2005. Further, counsel did not address the observation that, although it claimed to employ four 
workers at all salient times, the petitioner's tax returns indicate that it paid no wages during 2001, 2002, or 
2003. 
The two checks show that the petitioner paid the beneficiary $890.22 on both July 30, 2005 and August 16, 
2006. 
The additional Form DE-6 report submitted is for the first quarter of 2005. The petitioner employed four 
people, including the beneficiary, during that quarter. The petitioner paid the beneficiary $6,720 during that 
quarter. 
The new employment verification letter states that the beneficiary worked as a chef from January 1998 
through December 2001 at the in Los Angeles, California and purports to be from 
the then owner of the restaurant. The letter further states that because the beneficiary was an illegal worker 
1 
 In that decision the director misstated the annual amount of the proffered wage as $37,440. 
 That 
misapprehension on the director's part, however, was insufficient to affect his conclusion in this case. 
and had no social security number he was paid in cash and the owner requested that he not reveal that 
experience on the Form ETA 750B. The letter implies that no contemporaneous evidence of that employment 
exists. 
The revised Form ETA 750B states that the beneficiary worked from January 1, 1998 to April 4, 2005 at the 
Los Angeles, California as a chef. 
The petitioner's owner's letter is dated August 21, 2006 and states that the petitioner's business suffered as a 
result of the events of September 11, 2001. The petitioner's owner further requests that the petitioner's 
finances during 200 1,2002, and 2003 be ignored in favor of its subsequent finances. 
The additional evidence pertinent to the petitioner's owner's ownership of real estate includes (1) a Grant 
Deed, (2) one page of a Deed of Trust, (3) a Buyer Final Closing Statement, (4) an escrow sheet, (5) a 
Borrower Estimated Closing Statement, (6) a Borrower Final Closing Statement, (7) Closing Instructions, (8) 
a Fixed Adjustable Rate Note, (9) a letter from a commercial lender, and (10) one page of a FNMA Form 
1004 Universal Residential Appraisal Report (URAR). 
The grant deed states that on January 25, 1999 a property transferred to the petitioner's owner. The deed 
states that the property is in Los Angeles and identifies it by lot, tract number, map book and page. The street 
address of that property is unknown to this office. That deed does not identify the sales price or value of that 
property except to state the amount of tax paid on the transfer. Although that tax is based on the sale price or 
value of the property, the ratio of that tax to the total value or sales price of the property is unknown to this 
office. 
The closing statement provided appears to show that on February 1, 1999 the beneficiary purchased a 
property for $268,500 against which he placed a first mortgage of $214,800 and a second mortgage of 
$26,850, for a total indebtedness of $241,650. 
The single page provided of a Deed of Trust shows that the petitioner, on March 28, 2003, borrowed an 
unidentified amount secured by an unidentified vro~erty.~ That instrument identifies the petitioner's owner's 
home address a 
.. . 
tf 
in Van Nuys, California. The escrow sheet provided confirms the 
s a ement. The closing instructions are dated March 28, 2003 and confirm 
the terms of the mortgage of on 
The Borrower Estimated Closing Statement is dated March 31 2003 and shows that the petitioner then 
intended to pay off the existing indebtedness on his property at in Van Nuys and borrow 
$400,000 against that property. 
The 'Borrower Final Closing statement show that on April 4, 2003 the petitioner paid off his previous 
mortgages on the property at and borrowed $400,000 secured by that property. The 
FixedlAdjustable Rate Note is dated March 28, 2003 states terms of that same loan. 
2 
 Additional evidence submitted appears to show that the Deed of Trust pertains to the petitioner's home address, at 
in Van Nuys. 
Page 7 
The commercial lenders letter is dated August 12, 2004 and indicates that the petitioner's owner had applied 
for an additional loan. The terms of that loan and whether it settled are unknown to this office. 
The URAR estimates the value, on March 14, 2005, of the property at in van ~uys, 
California at $800,000.~ Because only one page was submitted, the Statement of Limiting Conditions, which 
should always accompany that report whenever it is presented for any purpose, is unavailable to this office. 
Further, no information is provided pertinent to the appraiser's qualifications, other than a state license 
number. 
In the brief counsel cites the 2004 Form DE-6 quarterly reports as evidence that the petitioner has employed 
the beneficiary since September 2004. Counsel notes that a May 4, 2004 memorandum from the Associate 
Director of CIS stated that CIS should find the petitioner able to pay the proffered wage if its net income was 
sufficient to cover the proffered wage, if its net current assets were sufficient to cover it, or if it employed the 
beneficiary and paid him or her the proffered wage. Counsel asserts that the petitioner's bank account 
statements show that its net income is sufficient, that the petitioner's owner's ownership in real estate 
demonstrates that the petitioner has sufficient net current assets to cover the proffered wage, and that the 
evidence shows that the petitioner has employed the beneficiary and paid him the proffered wage. 
Counsel again asserts that the petitioner's poor performance during 2001,2002, and 2003 was the result of the 
events of September 1 1,200 1. 
As of the date of this decision, the regulation at 8 C.F.R. 
 204.5(g)(2), set out above, is unchanged and 
requires the petitioner to demonstrate its continuing ability to pay the proffered wage beginning on the 
priority date with copies of annual reports, federal tax returns, or audited financial statements. That a change 
to that regulation is proposed is of no relevance to the instant visa petition. 
Counsel's reliance on the bank statements in this case is misplaced. First, bank statements are not among the 
three types of evidence, enumerated in 8 C.F.R. 5 204.5(g)(2), which are the requisite evidence of a 
petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate 
cases," the petitioner has not demonstrated that the evidence required by 8 C.F.R. 4 204.5(g)(2) is 
inapplicable or that it 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.4 
-- -- 
 - 
That the petitioner's owner, or someone on his behalf, commissioned that appraisal suggests that he continued to seek 
a refinance of the property. Whether he eventually did refinance, and the amount and terms of the new mortgage, are 
unknown to this office. 
4 
 A possible exception exists to the general rule that bank accounts are ineffective in showing a petitioner's continuing 
ability to pay the proffered wage beginning on the priority date. If the petitioner's account balance showed a monthly 
incremental increase greater than or equal to the monthly portion of the proffered wage, the petitioner might be found to 
have demonstrated the ability to pay the proffered wage with that incremental increase during that month. If that trend 
continued, with the monthly balance increasing during each month in an amount at least equal to the monthly amount of 
the proffered wage, then the petitioner might have shown the ability to pay the proffered wage during the entire salient 
period. That scenario is absent from the instant case, however, and this office does not purport to decide the outcome of 
that hypothetical case. 
Page 8 
Third, no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements 
somehow reflect additional available funds that were not reported on its tax returns. 
A line of credit, or any other indication of available credit, is not an indication of a sustainable ability to pay a 
proffered wage. An amount borrowed against a line of credit becomes an obligation. The petitioner must show 
the ability to pay the proffered wage out of its own funds, rather than out of the funds of a lender. The credit 
available to the petitioner is not part of the calculation of the fhds available to pay the proffered wage. Further, 
the petitioner's credit line is for $20,000 and had a balance of $17,222 on the only date for which a statement was 
submitted. The $2,778 remaining on that credit line, even if it belonged to the petitioner outright, would be of 
little effect in showing the petitioner's continuing ability to pay the proffered wage beginning on the priority date. 
The evidence provided pertinent to the petitioner's owner's interest in real estate is evidence that the 
petitioner's owner owns, or recently owned, at least one parcel of real estate. Although the contingencies and 
limiting conditions pursuant to which the appraisal, one page of which was submitted, was prepared, and the 
record contains scant evidence pertinent to the appraiser's qualifications, this office accepts, on the balance, 
that it shows that the petitioner's owner's property has greatly appreciated. 
This office notes, however, that no evidence is in the record to demonstrate whether the property is currently 
mortgaged or otherwise encumbered, or the extent of that possible encumbrance. The evidence suggests that 
the petitioner's owner initially encumbered that property with a purchase money mortgage, then refinanced 
for a greater amount, and then applied to refinance some property, apparently the same one, another time. 
Whether that last refinance transpired and the amount by which it may have encumbered the property is not in 
evidence. Without that information this office cannot determine the value of the petitioner's owner's equity 
in that property. 
Further, even if the petitioner's owner's equity were sufficiently evidenced, that would not demonstrate the 
petitioner's ability to pay the proffered wage. The petitioner's owner's equity in real estate is not a current 
asset. Current assets, or short-term assets, are those assets that are expected to be converted to cash or cash 
equivalent within a short period, generally one year. The petitioner's owner's home is not expected, in the 
short term, to be converted into cash. It is not the kind of liquid asset readily available to pay wages. For all 
of the reasons listed, the petitioner's owner's alleged equity in real estate will not be considered. 
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 established that it employed during at least part of 2004, at least part of 2005, and 
at least part of 2006, and that it paid him $8,960,~ $6,720,~ and $1,780.44~ during those years, respectively. 
5 
 That amount is shown on the 2004 W-2 form. 
6 
 That amount is shown on the Form DE-6 report for the first quarter of 2005. 
That amount is the total of the two photocopied checks provided that purport to show wages the petitioner paid to the 
beneficiary during 2006. 
Page 9 
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. $ 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 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. 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 at 537. See also Elatos Restaurant, 623 
F. Supp. at 1054. 
The petitioner, however, is a sole proprietorship. Because the petitioner's owner is obliged to satisfy the 
petitioner's debts and obligations out of his own income and assets, the petitioner's income and assets are 
properly combined with a portion of those of the petitioner's owner in the determination of the petitioner's ability 
to pay the proffered wage. The petitioner's owner is obliged to demonstrate that he could have paid the 
petitioner's existing business expenses and still paid proffered wage. In addition, he must show that he could still 
have sustained himself and his dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 
57 1 (7~ cir. 1983). 
The proffered wage is $29,120 per year. The priority date is April 24, 2001. 
The petitioner is obliged to show the ability to pay the entire proffered wage during 2001. During that year 
the petitioner's owner declared adjusted gross income of $12,725. That amount is insufficient to pay the 
proffered wage. The petitioner has not demonstrated the ability to pay the proffered wage out of his income 
during that year. The petitioner has submitted no reliable evidence of any other funds available to it during 
2001. The petitioner has not demonstrated its ability to pay the proffered wage during 2001. 
The petitioner is obliged to show the ability to pay the entire proffered wage during 2002. During that year 
the petitioner's owner declared adjusted gross income of $24,838. That amount is insufficient to pay the 
proffered wage. The petitioner has not demonstrated the ability to pay the proffered wage out of his income 
during that year. The petitioner has submitted no reliable evidence of any other funds available to it during 
2002. The petitioner has not demonstrated its ability to pay the proffered wage during 2002. 
The petitioner is obliged to show the ability to pay the entire proffered wage during 2003. During that year 
the petitioner's owner declared adjusted gross income of $24,372. That amount is insufficient to pay the 
proffered wage. The petitioner has not demonstrated the ability to pay the proffered wage out of his income 
during that year. The petitioner has submitted no reliable evidence of any other funds available to it during 
2003. The petitioner has not demonstrated its ability to pay the proffered wage during 2003. 
The petitioner has established that it paid the beneficiary wages of $8,960 during 2004 and is obliged to show 
the ability to pay the $20,160 balance of the proffered wage. Pursuant to 8 C.F.R. 3 204.5(g)(2) the petitioner 
is obliged to demonstrate that ability with copies of annual reports, federal tax returns, or audited financial 
statements. In the January 10, 2005 request for evidence the service center requested the petitioner's 2004 
return and counsel stated that it would be provided when it was available. Nevertheless, the record does not 
contain copies of the petitioner's annual reports, copies of its federal tax returns, or audited financial 
statements for 2004, or any other reliable evidence of the petitioner's ability to pay the balance of the 
proffered wage during that year. The petitioner has failed to show the ability to pay the proffered wage 
during 2004. 
As was noted above a sole proprietor petitioner is obliged to show, in addition to its ability to pay the 
proffered wage, his ability to pay his personal expenses with the balance. In the instant case the petitioner 
indicated that his family's recurring monthly expenses are $28,632 per year. Because the petitioner was 
unable to show the ability to pay the proffered wage alone, however, this office need not belabor its inability 
to pay that amount plus the petitioner's owner's personal expenses. 
The petitioner established that it paid the beneficiary $6,720 during 2005 and would ordinarily be obliged to 
show the ability to pay the balance of the proffered wage. The petitioner's 2005 tax return, however, was not 
available when the petition in this matter was submitted and has never been requested or promised. The 
petitioner is excused from showing its ability to pay the proffered wage during 2005 or subsequent years. 
Similarly, the petitioner only demonstrated that it paid the beneficiary $1,780.44 during 2006, but is not 
obliged to show the ability to pay the balance of the proffered wage during that year. 
The petitioner's owner urges, however, that the petitioner's poor performance during 2001, 2002, and 2003 
was a result of the events of September 11, 2001. The petitioner urged that its poor performance during those 
years should be ignored, concentrating instead on its performance during 2004 and 2004. There is no 
evidence in the record, however, that the economy in California suffered from the incidents of September 11, 
2001. More concretely, there is no evidence that restaurants in California, or more particularly in the Los 
Angeles area, lost business as a result of those incidents. More specifically still, there is no indication that 
Indian restaurants in Los Angeles suffered a setback after those attacks. Finally, and most to the point, other 
than the owner's conclusory assertion, nothing in the record suggests that the petitioner's poor performance 
during 2001, 2002, and 2003 was the result of the events of September 11, 2001. This office further notes 
that it cannot rely on the petitioner's performance during 2004 and 2005 to show its ability to pay the 
proffered wage, as the petitioner did not demonstrate its ability to pay the proffered wage during those years 
either. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during 2001, 2002, 2003, 
and 2004. Therefore, the petitioner has not established that it had the continuing ability to pay the proffered 
wage beginning on the priority date. The petition was correctly denied on this basis. 
The beneficiary's claim of qualifying experience has assumed several forms. Initially the beneficiary stated, 
on the original Form ETA 750B, that he had worked for the petitioner since November 1997. In response to a 
request for W-2 forms documenting the beneficiary's claim of employment with the petitioner, the 
petitioner's owner did not produce the requested evidence; W-2 forms, but stated in his February 7, 2005 
letter that the beneficiary had worked for the petitioner since September 2004. 
The petitioner's owner also stated that the petitioner had misplaced an employment verification letter 
pertinent to additional experience in Bangladesh, but still hoped to submit it. This office notes that despite the 
fact that the Form ETA 750B requires the beneficiary to describe a11 related previous experience, the 
beneficiary did not mention his Bangladeshi experience until his initial claim was under investigation. That 
claim of experience in Bangladesh has never been documented, nor has the beneficiary ever stated the time 
period during which it allegedly occurred. 
Having stated one version of the beneficiary's history of qualifying employment and then, when it was 
challenged, withdrawn it and replaced it with another, diminishes the credibility of both of those employment 
claims, as well as subsequent claims. 
Further, doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Further, the petitioner must resolve 
any inconsistencies in the record by independent objective evidence. Attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence sufficient to demonstrate where the truth, in fact, lies, will 
not suffice. Matter of Ho, 19 I&N Dec. 582 (Comrn. 1988). 
On appeal counsel, the petitioner, and the beneficiary provided a third version of the beneficiary's 
employment experience. A new employment beneficiary worked from 
January 1998 through December 2001 at the an alleged employer never 
previously mentioned to CIS. 
On a revised Form ETA 750B, however, the beneficiary gave yet another version of his employment history. 
On that form the beneficiary stated that he worked for beginning in January of 1998 and continuing 
until, not December 200 1, but until April 2005. 
The dates of the newly claimed employment as stated on the employment verification letter conflict with at 
least two of the beneficiary's previous versions of his history of qualifLing employment. 
The dates of employment for as stated on the revised Form ETA 750B conflict with the original claim 
of employment with the petitioner and, in addition, the claim of the petitioner's owner that the beneficiary 
began to work for the petitioner during September 2004. This office notes, further, that the DE-6 forms for 
the last two quarters of 2004, if genuine, appear to support that the petitioner employed the beneficiary during 
part of the third quarter of 2004 and all of the fourth quarter. 
The most recent claim, that of employment for 
 is the fourth employment claim presented in this case, 
and conflicts with others. 
Although, with that employment history, the beneficiary provided a story that might feasibly explain his 
shifting claims, it is not supported by competent objective evidence sufficient to demonstrate where the truth lies 
and is insufficient to meet the burden of proof, therefore, pursuant to Matter of Ho, supra. Under these 
Page 12 
circumstances this office cannot find this final version of the beneficiary's employment history to be credible. 
This office further notes that none of the previous versions of the beneficiary's claim of qualifying 
employment have been sufficiently documented. 
The petitioner has failed to demonstrate that the beneficiary is qualified for the proffered position. The 
petition was correctly denied on this additional ground. 
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.C. 
$ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.