dismissed EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 1-0-F- CORP 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 5, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a banquet and restaurant business, seeks to employ .the Beneficiary as a cook - Indian 
specialty. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act), section 203(b )(3)(A)(i), 
8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The Director, Nebraska Service Center, denied the petition. The Director determined that the record 
did not establish the Petitioner's ability to pay the proffered wage to the Beneficiary from the 
priority date of the visa petition forward. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that it has submitted 
sufficient evidence to establish its ability to pay the proffered wage. Upon de novo review, we will 
dismiss the appeal. 
I. ABILITY TO PAY 
The regulation at 8 C.P.R. § 204.5(g)(2) states in pertinent part: 
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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
A petitioner must establish that its job offer to a beneficiary is a realistic one. Because the filing of a 
labor certification application establishes a priority date for any immigrant petition later based on the 
labor certification, a petitioner must establish that the job offer was realistic as of the priority date and 
that the offer remains realistic for each year thereafter, until the beneficiary obtains lawful permanent 
residence. A petitioner's ability to pay the proffered wage is an essential element in evaluating whether 
Matter of 1-0-F- CORP 
a job offer is realistic. See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see 
also 8 C.F.R. § 204.5(g)(2). 
To determine a petitioner's ability to pay the proffered wage, U.S. Citizenship and Immigrations 
Services (USCIS) first examines whether the petitioner was employing the beneficiary as of the date 
on which the labor certification was accepted for processing by the U.S. Department of Labor (DOL) 
and whether it continues to do so. If the petitioner documents that it has employed the beneficiary at 
a salary equal to or greater than the proffered wage, that evidence may be considered proof of the 
petitioner's ability to pay. If the petitioner does not demonstrate that it employed and paid the 
beneficiary at an amount at least equal to the proffered wage during the required period, USCIS then 
examines the net income figure reflected on the petitioner's federal income tax returns, without 
consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 
111 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 
10-1517 (6th Cir. Nov. 10, 2011). 1 If the petitioner's net income during the required time period 
does not equal or exceed the proffered wage, or when added to any wages paid to the beneficiary 
does not equal or exceed the proffered wage, US CIS reviews the petitioner's net current assets. 
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay 
the proffered wage during the required period, USCIS may also take into account the overall 
magnitude of the petitioner's business activities. Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l 
Comm'r 1967). In assessing the totality of a petitioner's circumstances, USCIS may consider such 
factors as the number of years it has been in business, its record of growth, the number of individuals 
it employs, abnormal business expenditures or losses, its reputation within its industry, whether the 
beneficiary is replacing a former employee or an outsourced service, or any other evidence it deems 
relevant. 
In the present case, the priority date of the visa petition is October 17, 2014, and Part G.l. of the labor 
certification reflects a proffered wage of $32,074. The visa petition and labor certification also reflect 
that the Petitioner was established in 2012 and states that it employs five workers. 
To establish its ability to pay the proffered wage in this matter, the Petitioner must establish its ability to 
pay the Beneficiary the annual wage of$32,074 from October 17,2014, forward. The Petitioner did not 
submit Forms W-2, Wage and Tax Statements, or any other evidence that it is currently employing the 
Beneficiary. 
In support of its ability to pay, the Petitioner has submitted its 2014 Form 1120S, U.S. Income Tax 
Return for an S Corporation, which reflects $20,126 in net income and $27,754 in net current assets, 
1 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. 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), ajf'd, 703 F.2d 571 (7th Cir. 1983). 
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Matter of 1-0-F- CORP 
neither of which is sufficient to cover the proffered wage in this matter.2 However, the Petitioner's 
owner, has submitted a statement for the record in which he asserts that his company 
does have the financial resources to pay the proffered wage if we will simply combine these figures. 
While we note assertion that his company's net income and net current assets should be 
added together, we do not find his claim to be persuasive as it is not supported by any authority or 
precedent decision. 3 
We view net income and net current assets as two different methods of demonstrating ability to pay, one 
retrospective and one prospective. Net income is retrospective in nature as it represents those monies 
remaining after a petitioner has paid all its expenses from the previous tax year. Net current assets offer 
a prospective "snapshot" of the net total of a petitioner's assets that will become cash within a relatively 
short period of time minus those expenses that will come due within that same period. Further, 
combining net income and net current assets might result in the double counting of certain figures in 
cases where a petitioner reports taxes pursuant to accrual, e.g., cash on hand and accounts receivable. 
Accordingly, the Petitioner may not establish its ability to pay in this matter by combining its net 
income and net current assets. 
In his letter, also states that, in 2014, he paid $70,300 in wages to his employees, which 
dropped to $35,100 in 2015 after the departure ofhis cook, a difference of$35,200. He asserts that as 
the Beneficiary will be replacing his former cook, his company's ability to pay the $70,300 in 2014 is 
proof that it could have paid the $32,074 proffered wage to the Beneficiary that year. 
Where a petitioner establishes that a beneficiary is replacing another worker who previously 
performed the duties of the proffered position , the wages paid to the former employee may be 
considered as being available to pay the proffered wage to the beneficiary. However , the record in 
the present case contains no evidence that demonstrates that the Petitioner previously employed a 
cook on a full-time basis (as compared to several part-time cooks), that the cook left, and the exact 
date when the cook left. Neither does it document the wages actually paid to this individual. 
Moreover, although we note that the record contains the Petitioner's 2014 and 2015 Forms W-3, 
Transmittals of Wage and Tax Statements, which reflect the wage totals claimed by for 
those years, the Petitioner's 2014 tax return reports that it paid $45,300 in wages to all of its employees 
(presumably six workers, including the Petitioner's former cook) rather than the $70,300 claimed (the 
additional $25,000 in wages claimed by is reflected on the Form 1120S as officer 
compensation). Accordingly, the record also does not demonstrate the $35,200 difference in wages that 
indicates would have been available to pay the proffered wage in 2014. 
2 The Petitioner's 2014 tax return was the most recent available on February 26, 2016, the date on which USC1S received 
its response to the Director's request for evidence and the record before us closed. 
3 A petitioner cannot meet its burden of proof simply by claiming a fact to be true, without supporting documentary 
evidence. See Matter ofSoffici , 22 I&N Dec. 158, 165 (Comm ' r 1998) (citing Matter ofTr easure Crafi ofCaliforni a, 14 
I&N Dec. 190 (Reg'! Comm'r 1972)); see also Matter ofChawath e, 25 I&N Dec. 369 (AAO 2010). A petitioner must 
support assertions with relevant , probative , and credible evidence. Chawathe, 25 I&N Dec. at 369. In the absence of a 
controlling authority or precedent decision , we will not consider combining a petitioner 's net income and net current assets in 
determining its ability to pay during a single tax year. 
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Matter of 1-0-F- CORP 
The record does not contain sufficient evidence to establish that the Petitioner previously employed a 
full-time cook, as opposed to several part-time cooks, or the wages previously paid that individual. 
Therefore, the Petitioner cannot demonstrate its ability to pay the proffered wage to the Beneficiary 
based on the wages it states it paid a former employee. A petitioner cannot meet its burden of proof 
simply by claiming a fact to be true, without supporting documentary evidence. See Soffici, 22 I&N 
Dec. at 165; see also Chawathe, 25 I&N Dec. at 369. A petitioner must support assertions with 
relevant, probative, and credible evidence. Chawathe, 25 I&N Dec. at 369. 
Finally, asserts that his company is the tenant of a business that he 
owns with his wife and which, he asserts, will guarantee the proffered wage in this matter. In support of 
this claim, he submits a 2014 Form 1065, U.S. Return ofPartnership Income, for 
However, as noted by the Director in his decision, the Petitioner and are two independent 
business entities, even if both are owned by and the financial resources of 
may not be used by the Petitioner in establishing its ability to pay. Moreover, the Petitioner is also a 
separate and distinct legal entity from and may not, therefore, rely on his personal 
assets as proof of its ability to meet its proffered wage obligation. See Matter of Aphrodite 
Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case, the court inSitar v. Ashcroft, 
2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.P.R. 
§ 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no 
legal obligation to pay the wage." Accordingly, the Petitioner may not rely on to 
establish its ability to pay the Beneficiary the proffered wage. 
Having found neither the Petitioner's net income nor net current assets to establish its ability to pay 
the Beneficiary the proffered wage, we also conclude that the record lacks the evidence required to 
demonstrate that its ability to pay may be based on the totality of its circumstances. The Petitioner 
does not claim, nor has it submitted evidence to establish that the magnitude of its business 
operations demonstrate its ability to pay the proffered wage. 
In examining the totality of the Petitioner's circumstances, we also note that the record contains only 
its 2014 tax return. Although the Petitioner claimed five employees on the visa petition, the total 
wages reflected on its 2014 federal return amount to only slightly more than the Beneficiary's 
proffered wage. The wages reported on the Petitioner's 2015 Form W-3 were half of what it 
reported on its 2014 Form W-3. Therefore, for the reasons previously discussed, we do not find the 
record to establish the Petitioner's ability to pay the proffered wage. Accordingly, we will affirm the 
Director's denial of the visa petition and dismiss the Petitioner's appeal on this basis. 
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Matter of 1-0-F- CORP 
II. BENEFICIARY QUALIFICATIONS 
Although not addressed by the Director in his decision, our review of the record also finds that the 
Petitioner has not demonstrated the Beneficiary's qualifications for the offered position. 
A petitioner must establish a beneficiary's possession of all the education, training, or experience 
stated on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 103.2(b)(l), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); 
Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. K.R.K. Irvine, 
Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 1008, 1012-1013 
(D.C. Cir. 1983). We must examine "the language of the labor certification job requirements" in 
order to determine what the job requires. !d. We must examine the certified job offer exactly as it is 
completed by the prospective employer. See Rosedale Linden Park Co. v. Smith, 595 F. Supp. 829, 
833 (D.D.C. 1984) (emphasis added). Interpretation ofthejob's requirements, as stated on the labor 
certification involves reading and applying the plain language of the labor certification application 
form. !d. at 834. 
In the present case, the labor certification reflects that the job opportunity requires no education or 
training, stipulating only that the Beneficiary have 24 months of experience in the offered position of 
cook - Indian specialty. In Part K. of the labor certification, the Beneficiary claims full-time 
employment with a restaurant, as a cook - Indian specialty during the 
period October 1, 2009, until December 31, 2011. 
To establish that a beneficiary possesses the required employment experience, the regulation at 
8 C.F.R. § 204.5(g)(l) requires: 
[E]vidence relating to qualifying experience or training shall be in the form of 
letter(s) from current or former employer(s) or trainer(s) and shall include the name, 
address, and title of the writer, and a specific description of the duties performed by 
the alien or of the training received. If such evidence is unavailable, other 
documentation relating to the alien's experience or training will be considered. 
Here, the Petitioner has submitted a January 8, 2012, statement from GM, 
who states that the Beneficiary was employed as 
cook from October 1, 2009, until December 31, 2011, and that during his employment he "prepared 
and cooked Indian food for banquet parties." 
While we note this evidence ofthe Beneficiary's claimed employment experience, online New York 
State business records appear to contradict it. They reflect that, on July 27, 2011, 
was dissolved and that the annulment of this dissolution did not take place until August 
8, 2012. As a result, it appears that the period of the Beneficiary's employment with 
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Matter of 1-0-F- CORP 
may have ended in July 2011 rather than December 31, 2011, providing the Beneficiary 
with approximately 22 months of experience , rather than the 24 months required by the labor 
certification. Unresolved material inconsistencies may lead us to reevaluate the reliability and 
sufficiency of the evidence submitted in support of the requested immigration benefit. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Accordingly , we do not find the Petitioner to have 
established that the Beneficiary had the experience required by the labor cet1ification. This issue 
must be resolved in any further filings. 
III. CONCLUSION 
A petitioner must establish the elements for the approval of a petition as of that petition's priority 
date. Katigbak, 14 I&N Dec. at 49. Here, as previously discussed, the record does not demonstrate 
the Petitioner's ability to pay the proffered wage as of the visa petition 's priority date. Neither do 
we find that the Petitioner has established that the Beneficiary has the qualifications for the job 
opportunity. 
In visa petition proceedings, it is a petitioner 's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOti ende, 26 I&N Dec. 127 (BIA 
2013). Here, that burden has not been met. Accordingly, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-0-F- Corp, ID# 11835 (AAO Aug. 5, 2016) 
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