dismissed EB-3 Case: Food Service

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
~UBLIC COPY 
U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC-03-169-52926 Office: VERMONT SERVICE CENTER RAY 0 9 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 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. 
Administrative Appeals Office 
EAC-03-169-52926 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (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 filed the 1-140 petition on May 14, 2003 to seek to employ the beneficiary 
permanently in the United States as a food service manager. 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. 
On appeal, counsel submits a brief statement and copies of the documents submitted before. Counsel claims 
in the brief that the director failed to consider the additional evidence submitted in response to the RFE on 
July 23, 2004 and that with all evidence the petitioner established its continuing ability to pay the proffered 
wage. 
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 not available in the United 
States. 
The regulation 8 C.F.R. 9 204.5(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 C.F.R. 9 
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. 
Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 27, 2001. The proffered wage as stated on the Form ETA 
750 is $14.51 per hour ($30,180.80 per year). The Form ETA 750 states that the position requires 2 years of 
experience in a management related occupation. 
On the petition, the petitioner claimed to have been established in 1990, to have gross annual income of 
$369,592, to have net annual income of $600, and to currently employ 3 workers. According to the tax 
returns in the record, the petitioner is structured as an S corporation and its fiscal year is based on calendar 
year. On the Form ETA 750B, the beneficiary claimed to have worked for the petitioner since August 1991. 
EAC-03-169-52926 
Page 3 
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 record of proceeding contains the beneficiary's individual tax returns and W-2 forms for 
2001 through 2003. They show that the petitioner employed and paid the beneficiary $2,880 in 2001, $8,640 
in 2002 and $8,640 in 2003. Therefore, the petitioner did not establish it paid the beneficiary the full 
proffered wage in these years, and is obligated to demonstrate that it could pay the beneficiary the difference 
of $27,300.80 in 2001, and $21,540.80 each year of 2002 and 2003 between the wages actually paid to the 
beneficiary and proffered wage. 
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. EIatos 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), afd, 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., 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 is original.) Chi-Feng at 537. 
The evidence indicates that the petitioner is an S corporation and filed its corporation tax return on Form 1120s. 
The record contains copies of the petitioner's Form 1 120s U.S. Income Tax Return for an S Corporation for 2001 
through 2003. The petitioner's tax returns demonstrate the following financial information concerning the 
petitioner's ability to pay the difference of $27,300.80 in 2001, $21,540.80 each year of 2002 and 2003 
between the wages actually paid to the beneficiary and proffered wage from the priority date. 
EAC-03-169-52926 
Page 4 
In 2001, the Form 1120s stated net income1 of $15,890. 
In 2002, the Form 1120s stated net income of $23,492. 
In 2003, the Form 1120s stated net income of $24,557. 
Therefore, for the years 2002 and 2003, the petitioner had sufficient net income to pay the difference between 
the wages already paid to the beneficiary and the proffered wage, however, the petitioner's net income for 
2001 was insufficient to pay the difference of $27,300.80. 
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. The petitioner's net current 
assets during the year 2001 were $(14,675). Therefore, the petitioner did not have sufficient net current assets 
to pay the difference between the wages paid and the proffered wage for the year 2001. 
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 wages actually paid to the beneficiary 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. 
It is noted that counsel submitted the petitioner's bank statements from Eagle Bank covering a period from 
July 6,2001 to January 5,2003. Counsel resubmits the bank statements on appeal and claims that the director 
failed to consider the balance reflected in these bank statements, which established the petitioner's continuing 
ability to pay the proffered wage. Counsel's reliance on the balance in the petitioner's bank account is 
misplaced. First, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. 
fj 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. fj 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 funds that were 
1 
 Ordinary income (loss) from trade or business activities plus other income as reported on Line 23 Schedule 
K of Form 1120s. 
2~ccording to Barron 's Dictionary of Accounting Terms 1 17 (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. 
EAC-03-169-52926 
Page 5 
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. 
The record of roceeding contains a letter dated July 16, 2004 addressed to counsel in the instant case from 
d , Certified Public Accountant. The letter states in pertinent parts that: "in September of 2000, 
the [petitioner] sold its Topsfield, MA location and took back a $105,000 note. This note is for 48 months 
with an annual interest rate of 8%. I have enclosed a copy of the amortization schedule for this note. As you 
can see from the schedule, the balance of the note in 2001 and 2002 is approximately $75,000 and $50,000, 
respectively." As the letter mentioned, it attached an amortization schedule. However, the CPA letter was 
not supported by any documentary evidence. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N 
Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Furthermore, no evidence was submitted to demonstrate that the note payments reflect additional 
available funds that were not reflected on the petitioner's bank statements and 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. 
Counsel's assertions on appeal would not be concluded to outweigh the evidence presented in the tax returns 
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 did 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. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.