dismissed EB-3 Case: Food Service

IdolWhg dala deleted ta 
prevent clearly 
invasion of personal pri~cy 
U.S. Department of Homeland Security 
20 Mass, N W Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
86 
Office: VERMONT SERVICE CENTER 
EAC 04 137 53485 
Date: MAY 1 6 2006 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
3 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. tj 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. Wiernann, Chief 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
petitioner filed a motion to reopen the denial. The director granted the motion.' The previous decision was 
affirmed by the director, and the matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed, and, the petition will remain denied. 
The petitioner is a restaurantlcatering services corporation. It seeks to employ the beneficiary permanently in 
the United States as a manager, food service (catering). As required by statute, the petition is accompanied by 
a Form ETA 750, Application for Alien Employment Certification, approved by the U. S. 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. 
According to the petitioner, it employs seven individuals, and, it was established in 1999. 
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 unavailable in the United 
States. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
On the 1-140 petition, the petitioner selected check box "g." that states "Any other worker (requiring less than 
two years of training or experience). 
The regulation at 8 C.F.R. 5 204.5(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 regulation at 8 CFR 9 204.5(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 fiom 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. 
1 
 The issue on the motion was reconsideration of the Application to Adjust Status. The matter at 
issue before the AAO is set forth above. 
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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. 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. Comrn. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $28.00 per hour ($58,240.00 per year). The Form ETA 750 states that the position requires two years 
experience. 
On appeal, counsel submits additional evidence. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; a partial copy of 
the 2000 and a full copy of the 2001 (dated July 22,2003) U.S. Internal Revenue Service Form tax returns; 
and, copies of documentation concerning the beneficiary's qualifications as well as other documentation. 
The director denied the petition on December 9, 2004, finding that the evidence submitted 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 evidence will be submitted to demonstrate the ability to pay the proffered 
wage. 
Counsel has submitted the following documents to accompany the appeal statement: the petitioner's U.S. 
federal tax returns for years 200 1 (dated January 14,2002), 2002 and 2003. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. 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. No evidence was submitted to show that the petitioner 
employed the beneficiary. According to the undated Form G-235A submitted, the beneficiary was 
unemployed for the five years. According to the certified Form 750 Part B, Section 15 (a), the last 
employment position held by the beneficiary was in the position of assistant banquet and conference manager 
at the Bays Water Inn, London, United Kingdom from March 1990 to January 1993. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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. Feldman, 736 F.2d 1305 , (9th Cir. 
1984) ); see also Chi-Feng Chang v. Thornburgh, 7 19 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). In K.C.P. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have 
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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 
v. Thornburgh, Supra at 537. See also Elutos Restaurant Corp. v. Suva, Supra at 1054. 
The tax returns2 demonstrated the following financial information concerning the petitioner's ability to pay 
the proffered wage of $58,240.00 per year from the priority date of April 30,2001 : 
In 2001, the Form 1120s dated January 14,2002, stated taxable income of $51,248.00. 
In 2001, the Form 1120s dated July 22, 2003 stated a taxable income loss3 of 
<$135,747.00>.~ 
In 2002, the Form 1120s dated January 25,2003 stated taxable income of $53,933.00. 
In 2003, the Form 1120s dated February 27,2004 stated taxable income of $56,989.00. 
There is no explanation for the differences between the two tax returns for 2001. If the later return dated July 22, 
2003, was submitted after the unsigned, by the petitioner, return dated January 14,2002, then it would amend that 
earlier dated return. 
The petitioner's net current assets can be considered in the determination of the ability to pay the proffered 
wage especially when there is a failure of the petitioner to demonstrate that it has taxable income to pay the 
proffered wage. In the subject case, as set forth above, the petitioner did not have taxable income sufficient to 
pay the proffered wage at any time between the years 2001 through 2003 for which the petitioner's tax returns 
are offered for evidence. 
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 liabilities.' A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. That schedule is included 
with, as in this instance, the petitioner's filing of Form 1120s federal tax return. The petitioner's year-end 
current liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal 
to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage. 
Examining the Form 1120s U.S. Income Tax Returns submitted by the petitioner, Schedule L found 
in each of those returns indicates the following: 
In 2001, petitioner's Form 1120s return dated January 14, 2002 stated current assets of 
$2 1 1,995.00 and $1 37,916.00 in current liabilities. Therefore, the petitioner had 
2 
 Tax returns submitted for years prior to the priority date, have little probative value to show the 
ability to pay the proffered wage. The first three pages of the petitioner's 2000 tax return were 
submitted in blank. 
IRS Form 1 120SS, Line 21. 
The symbols <a number> indicate a negative number, or in the context of a tax return or other 
financial statement, a loss, that is below zero. 
According to Burron'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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
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$74,079.00 in net current assets. Since the proffered wage is $58,240.00 per year, this 
sum is more than the proffered wage. 
In 2001, petitioner's Form 1120s return dated July 22, 2003 stated current assets of 
$25,700.00 and $137,916.00 in current liabilities. Therefore, the petitioner had 
<$112,216.00> in net current assets. Since the proffered wage is $58,240.00 per year, 
this sum is less than the proffered wage. 
In 2002, petitioner's Form 1120s return dated January 25, 2003 stated current assets of 
$362,830.00 and $83,234.00 in current liabilities. Therefore, the petitioner had 
$279,596.00 in net current assets. Since the proffered wage is $58,240.00 per year, this 
sum is more than the proffered wage. 
In 2003, petitioner's Form 1120s return dated February 27, 2004 stated current assets of 
$479,424.00 and $97,725.00 in current liabilities. Therefore, the petitioner had 
$381,699.00 in net current assets. Since the proffered wage is $58,240.00 per year, this 
sum is more than the proffered wage. 
Beyond the decision of the director, as already stated, there is no explanation accompanying the submission of 
two differing tax returns for the tax year 2001. Assuming that the tax return dated July 22, 2003 for tax year 
2001 is the amended tax return submitted to the U.S. Internal Revenue Service for that year, the ending cash 
balance stated on that return for 2001 is $25,700.00. Therefore, this amount, $25,700.00 should be the beginning 
cash balance on the 2002 tax return. However, the beginning cash balance for tax year 2002 on Schedule L is 
$1 86,296.00. There is no note on either return or found in the record of proceeding to explain this discrepancy in 
reporting cash assets for 2001 and 2002. The other tax return for 2001 dated January 14, 2002, is also 
inconsistent since it stated an ending cash balance of $13,178.00. Based upon these inconsistencies, we reject the 
tax return for 2002 as not probative of the petitioner's financial status for the 2002 tax year. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on 
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). 
Therefore, for the period 2001 and 2002 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 ability to pay the beneficiary the 
proffered wage at the time of filing through an examination of its net current assets. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the corporate tax returns as 
submitted by petitioner that shows that the petitioner has not demonstrated its ability to 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 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. 
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