dismissed EB-3 Case: Food Service

identifying data deleted y, 
prrvent clearly unwamted 
hvas'on of persomil priv- 
L1.S. Department of Fiomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (Director), Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal.' The appeal will be 
dismissed. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a foreign 
food specialty cook. As required by statute, the petition is accompanied by a Form ETA 750, Application for 
Alien Employment Certification .(labor certification application or Form ETA 750), approved by the 
Department of Labor. 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. 
The director denied the petition accordingly. 
On appeal counsel submits a brief and copies of evidence already submitted previously. 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. 5 103.2(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). However, since counsel does not submit new evidence on appeal, the AAO will make 
its decision based on evidence already submitted and kept in the record only. 
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 8 C.F.R. 9 204.5(g)(2) states in pertinent part: 
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 Unified States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 CFR 
tj 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications, 
stated on its Form ETA 750 Application for Alien Employment Certification as certified by the U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on March 3, 2003. The proffered wage as stated on the Form ETA 
750 is $6.10 per hour ($12,688 per year). The Form ETA 750 states that the position requires two (2) years 
1 
The petitioner filed an 1-140 petition (SRC-04-030-53049) on behalf of the beneficiary in a position of 
specialty cook based on an approved labor certification with the Texas Service Center on November 1 1,2003 
and the previous petition was denied on February 11,2005. 
Page 3 
training in Asian cooking and two (2) years experience in the job offered. On the Form ETA 750B signed by 
the beneficiary on February 21, 2003, he did not claim-to have worked for the petitioner. On the petition, the 
petitioner claimed to have been established in 2001, to have a gross annual income of $253,092, and to 
currently employ 7 workers. 
With the petition, the petitioner submitted its Form 1120, U.S. Corporation Income Tax Return for 2003 
pertinent to its ability to pay the proffered wage. The director issued a request for additional evidence (RFE) 
on June 4, 2005 to establish the petitioner's ability top ay the proffered wage because she found the 2003 tax 
return did not demonstrate such ability. The director specifically requested the petitioner's 2004 tax return. 
In response to the RFE, counsel submitted the petitioner's 2004 tax return, bank statements and projection of 
income and expenses. Counsel also submitted letters from the owner of the petitioner and his financial 
documents, such as individual income tax returns for 2003 and 2004, cash flow statement and bank 
statements. 
The director denied the petition on September 14, 2005, finding that the evidence submitted with the petition 
and in response to the RFE did not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
On appeal, counsel asserts that the depreciation should be added back to the net income and the owner's 
private income should be considered, and that the director failed to consider the net current assets in 
determining the ability to 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 did not submit evidence that 
the petitioner paid any compensation to the beneficiary, nor did the beneficiary claim to have worked for the 
petitioner. Therefore, the petitioner has not established that it employed and paid the beneficiary the 
proffered wage during the period from the priority date to the present. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses. Reliance on federal 
income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldrnan, 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
With the initial filing, in response to the RFE and on appeal counsel requested considering depreciation of 
$22,638 in 2003 and $25,137 in 2004 respectively together with net income in determining the petitioner's 
ability to pay the proffered wage. Counsel's reliance on the petitioner's depreciation deduction or wage 
expense is misplaced. 
 Showing that the petitioner's gross receipts exceeded the proffered wage is 
insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient. 
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the 
argument that the Service should have considered income before expenses were paid rather than net income. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income figures 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 of proceeding contains copies of the petitioner's Form 1120, U.S. Corporation Income Tax 
Return, for 2003 and 2004. The tax returns show that the petitioner is structured as a C corporation and the 
petitioner's fiscal year is based on a calendar year. The tax returns demonstrate the following financial 
information concerning the petitioner's ability to pay the proffered wage of $12,688 from the priority date: 
In 2003, the Form 1120 stated net income2 of $4,598. 
In 2004, the Form 1120 stated net income of $(630). 
Therefore, the petitioner did not have sufficient net income to pay the proffered wage in year 2003 or 2004. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, the petitioner's 
total assets must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in 
the determination of the petitioner's ability to pay the proffered wage. Rather, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year net current assets and 
the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. As the director correctly 
calculated and considered, the petitioner's net current assets were $4,713 in 2003 and $7,617 in 2004. 
Therefore, the petitioner had insufficient net current assets to pay the proffered wage. Counsel's assertion 
that the director did not consider the petitioner's net current assets is misplaced. 
Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
3 
 According to Barron S Dictionary of Accounting Terms 117 (3rd 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 11 8. 
Page 5 
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 difference 
between the wage paid and 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. 
The record contains the petitioner's financial statements, such as Profit & Loss Statement for 1/1/2003 through 
12/31/2003 and Profit & Loss Statement for 1/1/2004 through 12/31/2004. However, these statements are not 
audited. Counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.F.R. 3 204.5(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. As there is no accountant's report accompanying 
these statements, the AAO cannot conclude that they are audited statements. 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. 
Counsel submitted the petitioner's bank statements. Counsel's reliance on the balances in the petitioner's 
bank accounts is misplaced. First, bank statements are not among the three types of evidence, enumerated in 8 
C.F.R. 4 204.5(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. 5 204,5(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 
funds 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 was considered in determining the petitioner's net current assets. 
In resvonse to the director's RFE and on avveal counsel submitted letters from and documents concerning the 
. z u 
personal finances of d alleged co-owner of the petitioner and asserts that his personal income 
and assets should be cons1 ere in etermining the petitioner's ability to pay the proffered wage. Contrary to 
counsel's assertion, CIS may not "pierce the corporate veil" and look to the assets of the corporation's owner 
to satisfy the corporation's ability to pay the proffered wage. It is an elementary rule that a corporation is a 
separate and distinct legal entity from its owners and shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 
1958), Matter ofAphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 I&N 
Dec. 631 (Act. Assoc. Comm. 1980). Consequently, assets of its shareholders or of other enterprises or 
corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered 
wage. 
Counsel submitted the petitioner's Projection of Income and Expenses in response to the director's June 4, 
2005 RFE and resubmits on appeal. Counsel's reliance on the projection of future earnings is misplaced. 
Against the projection of future earnings, Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. 
Comm. 1977) states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could 
not pay the offered wage at the time the petition was filed, should subsequently become eligble 
to have the petition approved under a new set of facts hinged upon probability and projections, 
even beyond the information presented on appeal. 
Page 6 
A petitioner must establish the beneficiary's eligibility for the visa classification at the time of filing; a 
petition cannot be approved at a future date after eligibility is established under a new set of facts. Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
This Projection of Income and Expenses are not audited. Counsel's reliance on unaudited financial records is 
misplaced. The regulation at 8 C.F.R. 9 204.5(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. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax return 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. 
9 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.