dismissed EB-3 Case: Food Service

; a qntifying data deleted to 
 vent clearly unwarranted 
,~rvaiion of # p"va=y 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
n 
FILE: Office: VERMONT SERVICE CENTER  ate: 2 4 
IN RE: 
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. fj 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. Wiemann, Chief 
Administrative Appeals Office 
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 (labor certification application or Form ETA 750), 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. 
Counsel filed a timely appeal with a brief statement and additional e~idence.~ 
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 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 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 
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 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. 
Cornm. 1977). 
1 
The instant petition was re-filed by the petitioner on the behalf of the same beneficiary after a previous 
filing was denied. The previous petition (EAC-04-130-50033) was filed on March 24, 2004 and denied by 
the Acting Center Director of Vermont Service Center on August 25, 2004 because the petitioner did not 
establish that it had the ability to pay the proffered wage at the time of filing. 
2 
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 
ofSoriano, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
Page 3 
Here, the Form ETA 750 was accepted on January 3 1, 2002. The proffered wage as stated on the Form ETA 
750 is $470 per week ($24,440 per year). The Form ETA 750 states that the position requires two (2) years 
experience in the job offered. On the Form ETA 750B, the beneficiary did not claim to have worked for the 
petitioner. On the petition, the petitioner claimed to have been established in 1995, to have a gross annual 
income of $620,000, to have a net annual income of $20,000, and to currently employ seven (7) workers. 
With the petition, the petitioner submitted its Form 1120, U.S. Corporation Income Tax Return for 2000 
through 2002 pertinent to its ability to pay the proffered wage. 
The director denied the petition on April 29, 2005, finding that the evidence submitted with the petition 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 depreciation is an allowable deduction from taxable income, but does not 
represent an actual payment in that year and with adding back depreciation to taxable income the petitioner 
has established its ability to pay the proffered wage. The petitioner submits the first page of its 2003 tax 
return on appeal. 
In determining the petitioner's ability to pay the proffered wage during a given period, 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. In the instant case, the petitioner did not submit evidence that 
the petitioner paid any compensation to the beneficiary, nor did the beneficiary claim to have worked for the 
petitioner. Therefore, the petitioner has not established that it employed and paid the beneficiary the 
proffered wage during the period from the priority date to the present. 
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 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
On appeal counsel requests considering depreciation of $15,907 in 2001, $30,679 in 2002, and $29,886 in 
2003 together with net income in determining the petitioner's ability to pay the proffered wage. Counsel's 
reliance on the petitioner's depreciation deduction is misplaced. Similarly, showing that the petitioner had 
gross receipts that exceeded or 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 
Page 4 
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 record of proceeding contains copies of the petitioner's Form 1120, U.S. Corporation Income Tax 
Return, for 2000 through 2003. The tax return shows that the petitioner is structured as a C corporation and 
the petitioner's fiscal year lasts from August 1 to July 3 1. The priority date in the instant case is January 3 1, 
2002. Therefore, the petitioner's tax return for 2000, which covers its fiscal year from August 1, 2000 to July 
31, 2001, is not necessarily dispositive. The tax returns demonstrate the following financial information 
concerning the petitioner's ability to pay the proffered wage from the priority date. 
In 2001, the Form 1120 stated net income3 of $21,83 1. 
In 2002, the Form 1 120 stated net income of $19,17 1. 
In 2003, the Form 1120 stated net income of $1 8,613. 
Therefore, for the years 2001 through 2003, the petitioner did not have sufficient net income to pay the 
proffered wage of $24,440. 
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. 
Calculations based on the Schedule L's attached to the petitioner's tax return for 2001 and 2002 yield that the 
petitioner had current assets of $102,226 and current liabilities of $92,739, therefore, net current assets were 
$9,487 in its fiscal year 2001; the petitioner had current assets of $55,438 and current liabilities of $79,133, 
therefore, net current assets were $(23,695) in its fiscal year 2002. Therefore, the petitioner did not have 
sufficient net current assets to pay the proffered wage for the fiscal years 2001 and 2002. Counsel submits the 
3 
 Taxable income before net operating loss deduction and special deductions as reported on Line 28. 
4 
 According 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 118. 
Page 5 
petitioner's 2003 tax return without Schedule L, therefore, the AAO cannot determine whether the petitioner 
had sufficient net current assets in its fiscal year 2003 to pay the proffered wage. 
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. 
Counsel's assertions 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 any office within the employment system of the Department of 
Labor. 
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. 
8 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.