dismissed EB-3 Case: Food Service

identifying dab deleted lo 
prevent clearly unwarrsnH 
invasion of personal priveeJl 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
66 
FILE: EAC 04 221 52259 Office: VERMONT SERVICE CENTER Date: )IAR 3 0 2m 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 
 1 153(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. 
~obkrt P. Wiemann, Director 
Administrative Appeals Office 
EAC 04 221 52259 
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 cook. As 
required by statute, a Form ETA 750, Application for Alien Employment Certification approved by the 
Department of Labor, accompanied the petition.' 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 and denied the petition accordingly. 
On appeal, the petitioner submits no additional evidence or a brief. 
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, 
the day the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 CFR $ 204.5(d). Here, the Form ETA 750 was accepted for processing on April 19, 
2001. The proffered wage as stated on the Form ETA 750 is $27,040 per year. 
On the petition, the petitioner claimed to have been established on September 26, 1996, to have a gross annual 
income of $1.6 million, and to currently employ 20 to 30 workers. In support of the petition, the petitioner 
submitted Form 1065 for 2001 and 2002. The record indicates the petitioner is structured as a partnership and 
files its tax returns on Form 1065. The petitioner's fiscal year lasts from January 1 to December 3 1. 
The petitioner's tax returns reflect the following information for the following years: 
Net income2 ($55,264) $5,116 
Gross receipts $1,504,138 $1,696,274 
Salaries and wages $260,584 $3 16,097 
Current Assets $493 15 $71,214 
Current Liabilities $76,633 $73,300 
Net current assets ($27,118) ($2,086) 
The director determined that the evidence submitted did not establish that the petitioner had the continuing ability 
to pay the proffered wage beginning on the priority date, and, on October 13, 2004, denied the petition. The 
director cited the petitioner's Form 1065 for 2001 and 2002. 
1 
 A September 20, 2004 annotation on the 1-140 states that the original ETA 750 is in the file EAC 02 218 53369. 
2 
 Ordinary income (loss) from trade or business activities as reported on Line 22. 
EAC 04 221 52259 
Page 3 
On appeal, counsel asserts the evidence, that the petitioner has been paying salaries of more than $260,000 a year 
and taking depreciation deductions from income tax of more than $100,000 a year. 
At the outset, we note that, on July 22, 2003, the director had denied an earlier petition filed on the beneficiary's 
behalf based upon the same ETA 750. On July 14, 2004, the director, rejected the petitioner's appeal as untimely, 
granted the appeal as if a motion to reopen and reconsider, and affirmed her earlier denial, declining to consider 
the personal income and assets of the petitioner's owners as available to the petitioner, a corporation separate and 
apart from its shareholders. 
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 establish that it employed and paid the 
beneficiary the full proffered wage in 2001 or in 2002. 
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. 111. 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 that 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 incomeJigures 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. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a 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. 
EAC 04 221 52259 
Page 4 
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 partnership'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 a partnership's end-of-year net current 
assets are equal to or greater than the proffered wage, the petitioner has established its ability to pay the 
proffered wage out of those net current assets. 
The petitioner has not demonstrated that it paid the full proffered wage to the beneficiary in 2001 or in 2002. 
In 2001 and 2002, the petitioner reports net income and net current assets in amounts that are less than the 
proffered wage, and therefore, it has not demonstrated the ability to pay the proffered wage out of its net 
income or net current assets. The petitioner has not, therefore, shown the ability to pay the proffered wage 
during either 200 1 or 2002. 
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 asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
continuing ability to pay the proffered wage from the priority date. Counsel states that the petitioner has been 
spending more than $260,000 yearly for salaries, an amount nearly 10 times the size of the proffered wage, 
thereby demonstrating that the petitioner has the ability to pay the proffered sum. 
As stated above, reliance on the petitioner's 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. Counsel appears to be asserting that the petitioner's overall 
financial circumstances show it to be a financially strong company with a consistent history of profitability, 
much like the company describe in Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967). The AAO does note a 
significant payment in officer's compensation, but the record of proceedings does not show such payment to 
be discretionary or that the petitioner's two LLC partners were willing or able to forgo a portion of their 
compensation. 
Sonegawa relates to petitions filed during uncharacteristically unprofitable or difficult years but only in a 
framework of profitable or successful 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. 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 that 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. 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 
According to Barron 's Dictionaly of Accounting Terms 117 (31d 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 22 1 52259 
Page 5 
Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a 
couturiere. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that 2001 and 2002 were uncharacteristically unprofitable years for the petitioner. 
Counsel's assertions on appeal cannot 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 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.