dismissed EB-3 Case: Food Service

U.S. Department of Ilomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
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pcvent clearly unwarranted 
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U.S. Citizenship 
and Immigration 
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Office: VERMONT SERVICE CENTER 
 Date: SE? 1 1 M06 
EAC 03 120 51388 
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. § 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. 
I 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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 pizzeriaJcaf6. It seeks to employ the beneficiary permanently in the United States as a 
restaurant cook. 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 (DOL). 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. 
According to the director's January 14, 2005 denial, the issue in this case is whether 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. $ 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 at 8 C.F.R. 8 204.5(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 is accepted for processing by any office within the employment 
system of the DOL. See 8 CFR 5 204.5(d). The petitioner must also demonstrate that, on the priority date, the 
beneficiary had the qualifications stated on its Form ETA 750 as certified by the DOL and submitted with the 
petition. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
Here, the DOL accepted the Form ETA 750 for processing on May 25,2001. The proffered wage as stated on 
the Form ETA 750 is $12.57 per hour, 40 hours per week, or $26,145.60 annually. The Form ETA 750 states 
that the position requires two years of experience in an unspecified related occupation to the proffered 
position. 
Page 3 
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 
pertinent evidence in the record, including new evidence properly submitted on appeal.' 
The petitioner submitted the following evidence in support of its claim that it has the ability to pay the 
beneficiary the proffered wage: a document that lists the petitioner's profits and losses for the six-month 
officer, and that, therefore, an unspecified 
statement also indicates that Citizenship and 
orporation Income Tax Return, 
Inc. which indicates that the 
e petitioner's president and corporate 
7 ,alary will shift to the beneficiary; this 
!CIS) should add depreciation expenses to 
net income when determining the petitioner's ability to pay the beneficiary the proffered wage; the petitioner's 
Form 4562, Depreciation and Amortization (Including Information on Listed Property), for 2001 and 2002; 
and a document that defines the terms depreciation and amortization. The record does not contain any other 
evidence relevant to the petitioner's ability to pay the wage. 
The record shows that the petitioner is structured as a C corporation. On the petition, the petitioner claimed to 
have been established in 1984 and to currently employ five to eight workers. The petitioner failed to list its 
gross annual income on the petition. According to the tax returns in the record, the petitioner's fiscal year 
coincides with the calendar year. On the Form ETA 750B, signed by the beneficiary on December 20, 2001, 
the beneficiary claimed to have worked for the petitioner from February 2000 until the date on which he 
signed the Form 750B. 
On appeal, counsel asserts that the petitioner does have the ability to pay the proffered wage. He indicates 
that the director erred when he failed to add depreciation and amortization expense deductions to net income 
when determining the petitioner's ability to pay the proffered wage. Counsel also indicates that the fact that 
the petitioner currently pays over $35,000 annually in wages and salaries demonstrates that it has the ability to 
pay the proffered wage. Finally, counsel indicates that in Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Cornrn. 
1967), the Commissioner held that it was appropriate to consider expectations for future growth and other 
evidence beyond net income or net current assets when determining a petitioner's ability to pay the proffered 
wage. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a Form 
ETA 750 establishes a priority date for any immigrant petition later based on that Form 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. 9 204.5(g)(2). In evaluating whether a job offer is 
realistic, 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, 12 I&N Dec. 612 (Reg. Cornm. 1967). 
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. 9 103.2(a)(l). The record in this 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). 
Page 4 
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 this 
case, the beneficiary indicated on the Form ETA 750 that he has been working for the petitioner since 
February 2000. However, the petitioner has not provided evidence to establish that it employed and paid the 
beneficiary the full proffered wage from the priority date of May 25, 2001. The petitioner has submitted no 
Form W-2, Wage and Tax Statement, for the beneficiary or other documentation to establish that it employed 
and paid the beneficiary any amount for any length of time during the relevant period of analysis. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during the relevant period, CIS will next examine the net income figure reflected on the 
petitioner's federal income tax return, without consideration of depreciation/amortization or other expenses, 
contrary to counsel's  assertion^.^ 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), afd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross sales and 
profits and wage expense is misplaced. Showing that the petitioner's gross sales and profits exceeded the 
proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered 
wage is insufficient, also contrary to counsel's assertions. 
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 
2 
Counsel cites three unpublished AAO decisions in support of the premise that net income and net current 
assets should not control the determination of the petitioner's ability to pay the proffered wage, and that 
depreciationJamortization expenses should also be considered. Counsel does not provide a published citation 
for these cases. While 8 C.F.R. 8 103.3(c) provides that precedent decisions of CIS, formerly the Service or 
INS, are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. Precedent decisions must be designated and published in bound volumes or as interim 
decisions. See 8 C.F.R. fj 103.9(a). 
Page 5 
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 tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered annual wage of $26,145.60 from the priority date: 
In 200 1, the Form 1 120 stated a net income3 of $4 1. 
In 2002, the Form 1 120 stated a net income of $2,012. 
Therefore, for the years 2001 and 2002, the petitioner did not have sufficient net income to pay the proffered 
wage. 
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 200 1 were $6,667. 
The petitioner's net current assets during 2002 were $8,328. 
Thus, for the years 2001 and 2002, the petitioner did not have sufficient net current assets to pay the proffered 
wage. 
Therefore, from the date the Form ETA 750 was accepted for processing by the DOL, the petitioner has 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 in 2001 and 
2002. 
3 
Ordinary income (loss) from trade or business activities as reported on Line 28 of the Form 1120. 
4 
According to Barron's Dictionaly 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 1 18. 
It is noted that the petitioner also submitted profit/loss statements which have not been audited for the period 
covering January 2002 through June 2002. Reliance on unaudited financial records is misplaced. The regulation 
at 8 C.F.R. § 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 profit/loss statements, the AAO cannot conclude that they represent 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 asserts on appeal that there is another way to determine the petitioner's continuing ability to pay the 
proffered wage from the priority date. He suggests that CIS consider expectations for future growth and 
various other evidence beyond net income and net current assets in keeping with the holding of Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg. Comrn. 1967), when determining the petitioner's ability to pay the proffered 
wage. Counsel's reliance on Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967), is misplaced. That 
case relates to a petition filed during uncharacteristically unprofitable years withn a framework of profitable 
years. The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross 
annual income of about $100,000.00. During the year in which the petition was filed in that case, the petitioner 
changed business locations and paid rent on both the old and new locations for five months. There were large 
moving costs and, also, a period of time when the petitioner was unable to do regular business. The Regional 
Commissioner determined the petitioner's prospects for a resumption of successful business operations were well 
established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. 
Her clients included Miss Universe, movie actresses, and society matrons. Also, the petitioner's clients had been 
included in the lists of the best-dressed California women. The petitioner lectured on fashion design at design and 
fashion shows throughout the United States and at colleges and universities in California. The Regional 
Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and 
outstanding reputation as a couturiere. No unusual circumstances, parallel to those in Sonegawa, have been 
shown to exist in the instant case, nor has it been established that 2001 or 2002 were uncharacteristically 
unprofitable years for the petitioner. 
Finally, the president of. indicated in a statement submitted in response to 
the director's request for further evidence that the beneficiary would be assuming some of the duties of Franco 
the petitioner's president and corporate officer, and that Mr. 
 ould, in turn, be giving up a portion 
alary to go toward the beneficiary's salary. However, Mr 
 did not submit any signed or sworn 
statement which specified the amount of compensation he would forego to apply to the beneficiary's wage, nor 
did he otherwise document ths shifting of expenses. Further, Mr. as not explained how much time he 
spends performing the duties of the proffered position and how much of his compensation is allocated for those 
duties. Going on record with assertions that are not supported by 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 
(Comm. 1998) (citing Matter of Treasure Crafi of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Beyond the decision of the director, the record fails to demonstrate that the beneficiary is qualified to perform 
the duties of the proffered position. An application or petition that fails to comply with the technical 
requirements of the law may be denied by the AAO even if the Service Center or District Office does not 
identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 
229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 
F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
To determine whether a beneficiary is eligble for an employment based immigrant visa, CIS must examine 
whether the alien's credentials meet the requirements set forth in the labor certification. In evaluating the 
beneficiary's qualifications, CIS must look to the job offer portion of the labor certification to determine the 
required qualifications for the position. CIS may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 
(Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 
699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 
(1st Cir. 1981). 
To be eligble for approval, a beneficiary must have the education and experience specified on the labor 
certification as of its filing date, which as noted above, is May 25, 2001. See Matter of Wing's Tea House, 16 
I&N Dec. 158 (Act. Reg. Cornrn. 1977). 
In this case, the Form ETA 750A, items 14 and 15 set forth the minimum education, training, and experience 
that an applicant must have for the position of restaurant cook. Item 14 indicates that there are no educational 
requirements for the proffered position, and that the applicant must have two years of experience in an 
unspecified occupation that is related to the proffered position. The duties of the proffered position are 
delineated at Item 13 of the Form ETA 750A as follows: 
Prepare[s], [sleasons, and cooks soups, meats, vegetables, desserts, and other foodstuff for 
consumption in eating establishments[.] Reads menu to estimate food requirement[s] and 
orders food from supplier or procures food from storage. Adds seasoning to foods [during] 
mixing or cooking according to personal budgment] and experience. May supervise other 
cooks and kitchen employees. 
Item 15 of Form ETA 750A does not list any other special requirements for the proffered position. 
The beneficiary set forth his credentials on the Form ETA 750B and signed his name under a declaration that the 
contents of the form are true and correct under the penalty of pgury. At Item 15, eliciting information of the 
beneficiary's work experience, he represented that he performed all the duties listed at Item 13 of the Form ETA 
750A on a full-time basis: while employed by the petitioner from February 2000 through December 2001; and 
while employed by 
 in Bogota, Colombia from January 1995 through March 1999. He does not 
provide any additional information concerning his employment background on that form. 
In response to the director's request for evidence regarding the beneficiary's qualifications for the proffered 
position, the petitioner submitted a copy of a Spanish-language certificate which indicates that the beneficiary 
worked for "five years" as a "qualified chef' at a restaurant-bar in Bogota, Colombia. The document does not 
specify any of the beneficiary's duties at this position. It does not specify whether the beneficiary was 
employed full-time or part-time. The document is not signed, nor is it an original. The petitioner did include 
a translation of this certificate. Yet, on the English translation, the interpreter indicates that the administrator 
of the restaurant-bar in Bogota had signed the certificate. However, as noted above, the Spanish-language 
certificate is not signed. The interpreter also includes a statement certifying that she is proficient in English 
and in Portuguese. Yet, this certificate which was purportedly issued by the administrator of a restaurant-bar 
in Bogota, Columbia is in Spanish, not Portuguese. 
The regulation at 8 C.F.R. 9 204.5(1)(3) provides: 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a slulled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for thls 
classification are at least two years of training or experience. 
The unsigned certificate submitted by the petitioner fails to demonstrate that the beneficiary has two years of 
experience ordering food from suppliers, seasoning food according to his personal judgment and experience, 
and carrying out the other specific duties of restaurant cook or a related occupation as described on the 
individual labor certification attached to the instant petition. 
Thus, the preponderance of the evidence does not demonstrate that, as of the priority date, the beneficiary had 
acquired two years of experience in an unspecified occupation related to restaurant cook with duties as set 
forth on the Form ETA 750A. As such, the petitioner has not demonstrated that he is qualified to perform the 
duties of the proffered position. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.