dismissed EB-3 Case: Food Service

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC-04-265-5 145 1 Office: VERMONT SERVICE CENTER Date: S@ 0 5 2006 
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. 8 1153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 
EAC-04-265-5 145 1 
Page 2 
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 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, 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. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by 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 February 23, 2005 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence. 
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 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. fj 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 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 
fj 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 April 11, 2001. The proffered wage as stated on the Form ETA 
750 is $760.00 per week ($39,520.00 per year). The Form ETA 750 states that the position requires two years 
of experience in the proffered position. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
EAC-04-265-5 145 1 
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pertinent evidence in the record, including new evidence properly submitted upon appeal1. The petitioner 
submits new evidence on appeal. Relevant evidence in the record includes the petitioner's Form 1120s 
federal corporate tax return for 2001, the petitioner's owner's individual income tax return for 2001, a 1099 
form issued by the petitioner to the beneficiary in 2004, and a letter from the petitioner's owner dated March 
7,2004. The record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the 
petition, the petitioner claimed to have been established in 1971 and to currently employ two workers. 
According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the 
Form ETA 750B, signed by the beneficiary on April 5, 2001, the beneficiary claimed to have worked for the 
petitioner since November 2000. 
On appeal, the petitioner asserts that the beneficiary will replace him as a cook and that total wages paid to the 
beneficiary fail to account for tips she received. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 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 for each year thereafter, until the beneficiary obtains lawful permanent residence. 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. fj 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, 1 2 I&N Dec. 6 12 (Reg. Comm. 1 967). 
At the outset, the petitioner's owner's individual income tax return is irrelevant in these proceedings because the 
petitioner is an S corporation, not a sole proprietorship. 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 of Aphrodite 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. 
In determining the petitioner's ability to pay the proffered wage during a given period, 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 has not established that it employed and paid the beneficiary the full proffered 
wage from the priority date in 2001 through 2003. The petitioner established that it employed and paid the 
beneficiary partial wages in the amount of $12,920.00 in 2004, which is $26,600 less than the proffered wage 
1 
 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). 
EAC-04-265-5 145 1 
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in that year. The petitioner is obligated to demonstrate that it can pay the full proffered wage in 2001, 2002, 
and 2003, and the difference between wages actually paid and the proffered wage in 2004. 
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 Woodcrai Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Texas 1 989); K. C. P. Food Co., Znc. v. Sava, 623 F. Supp. 1080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. 111. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts and 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., Znc. 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 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. 
(Emphasis in original.) Chi-Feng at 537 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $39,520.00 in 200 1,2002, and 2003, and $26,600 in 2004: 
In 2001, the Form 1120s stated net income2 of -$5,834. 
Therefore, in 200 1, the petitioner did not have sufficient net income to pay the proffered wage. The record of 
proceeding does not contain any regulatory-prescribed evidence for 2002, 2003, and 2004 to ascertain the 
petitioner's net income and ability to pay the proffered wage or the difference between wages actually paid 
and the proffered wage in those years. 
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, including real property that counsel asserts should be considered. Those depreciable 
assets will not be converted to cash during the ordinary course of business and will not, therefore, become 
2 
 Ordinary income (loss) from trade or business activities as reported on Line 2 1. 
EAC-04-265-5 145 1 
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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 ~iabilities.~ 
 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. 
The petitioner's net current assets during 2001 were $15,285. 
Therefore, in 2001, the petitioner did not have sufficient net current assets to pay the proffered wage. As 
noted above, the record of proceeding does not contain any regulatory-prescribed evidence for 2002, 2003, 
and 2004 to ascertain the petitioner's net current assets and ability to pay the proffered wage or the difference 
between wages actually paid and the proffered wage in those years. 
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 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 petitioner's owner asserts on appeal that there is another way to determine the petitioner's continuing 
ability to pay the proffered wage from the priority date. The petitioner's owner advised that the beneficiary 
would replace him. The record does not, however, corroborate the amount of wages he received and the amount 
of time he spent working as a cook and receiving compensation for those duties. In general, wages already paid 
to others are not available to prove the ability to pay the wage proffered to the beneficiary at the priority date of 
the petition and continuing to the present. 
Finally, the petitioner's owner claims that the total salaries shown on Form 1120s for 2001 "do not include 
tips in the amount of $32,575. [sic] as reported to the Internal Revenue Service [(IRS)] and the Social 
Security Administration [(SSA)]." As noted above, CIS does not review total salaries as a measure of the 
petitioner's ability to pay an additional wage. 
The petitioner'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 the Department of Labor. Additionally, the record is 
incomplete due to the failure by the petitioner to submit regulatory-prescribed evidence of its continuing 
ability to pay the proffered wage, or difference between wages actually paid and the proffered wage, after 
2001. 
3~ccording to Barron S Dictionary of Accounting Terms 1 17 (3'* 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 1 18. 
EAC-04-265-5 145 1 
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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. 
$ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.