dismissed EB-3 Case: Food Service

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
'bs 
EAC 05 012 53430 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as a Shlled Worker or Professional Pursuant to Section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. tj 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. 
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 cook. As 
required by statute, Form ETA 750, Application for Alien Employment Certification approved by the Department 
of Labor (DOL), accompanied the petition. The director found that the petitioner had not established that it had 
the continuing financial ability to pay the beneficiary the proffered wage beginning on the priority date of the visa 
petition and denied the petition accordingly. 
On appeal, counsel submits further evidence and contends that the petitioner has demonstrated its continuing 
financial ability to pay the proffered wage. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 153(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 slulled 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. § 204.5(g)(2) states, in pertinent part: 
Abiliv 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 filing date or priority date of the petition is the initial receipt in the DOL's employment service system. See 
8 C.F.R. fj 204.5(d). Here, Form ETA 750 was accepted for processing on April 30, 2001. The proffered wage 
as stated on Form ETA 750 is $18.89 per hour, which amounts to $39,291.20 per year. On Form ETA 750B, 
accompanying the petition, the beneficiary does not claim to have worked for the petitioner. 
On Part 5 of the preference petition, the petitioner claims to have been established in 1982 and to have a gross 
annual income of $1 12,5 1 1. 
In su 
 ort of its ability to pay the proffered salary, the petitioner submitted a letter, dated July 2, 2004, from Mr. 
m the petitioner's president. He states the company has the ability to pay the proffered wage and 
offers the "W2 of my previous employees which will be given to [the beneficiary] once he works in my 
company.'' ~r lists himself and " for 2001 and provides copies of Wage and Tax 
Statements (W-2s) for that year showing his own salary of $26,000 and ~r salary of $10,400, plus 
offers "ending cash" of $4,490 to be available to pay the certified wage. The ending cash appears to be the same 
amount listed as cash on Schedule L of the petitioner's tax return submitted with the petition. 
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lists his own salary of $16,500 as being available to pay the proffered wage, as well as 
salary of $12,900, and salary of $10,100, accompanied by the corresponding W-2s. 
Similarly, for 2003, ~r.~rovides coples of the respective W-2s and states that salary of $15,300, 
Campos' salary of $15,300, and his own salary of $26,000 would be available to pay the proffered wage. 
Along with Mr. 
 letter and copies of the relevant W-2s' the petitioner also submits copies of its Form 
1120S, U.S. Income in ax eturn for an S Corporation for 2001, 2002, and 2003. They contain the following 
information relevant to the petitioner's income, compensation paid to employees, and current assets and liabilities. 
Gross Receipts or Sales 
Total Income 
Compensation of Officers 
Salaries and Expenses 
Current Assets (Sched. L) 
Current Liabilities (Sched. L) 
Net current assets 
Taxable income before NOL deduction 
$1 12,511 $120,312 
$100,928 $ 77,090 
$ 52,000 $ 29,500 
$ 26,000 $ 23,000 
-$ 15,510 $ none listed 
$ 519 $ none listed 
-$ 16,029 $ nla 
-$ 31,416 -$ 25,600 
$1 19,267 
$ 87,488 
$ 26,000 
$ 30,600 
$ none listed 
$ none listed 
$ nla 
-$ 4,080 
As noted above, net current assets are the difference between the petitioner's current assets and current liabilities 
and represent a measure of liquidity and a possible readily available resource to pay a certified wage.' Besides net 
income, Citizenship and Immigration Services (CIS) will review a corporate petitioner's net current assets as an 
alternative method of examining its ability to pay a proffered wage. A corporation's year-end current assets are 
shown on line(s) l(d) through 6(d) of Schedule L and current liabilities are shown on line(s) 16(d) through 18(d). 
If a corporation's year-end net current assets are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage out of those net current assets. 
On December 29, 2004, the director denied the petition, concluding that neither the petitioner's reported net 
income nor its net current assets could support the payment of a proposed wage offer of $39,291.20 per year in 
any of the three relevant years. The director declined to consider the wages and salaries already paid out in 2001, 
2002, and 2003 concluding that they were already expended and not retained for future use. 
to the underlying record and reiterates the assertion that the 
salaries o 
 can be used to compensate the beneficiary. She provides another 
It is similar to the earlier letter provided to the record and 
contains a similar affirmation that the beneficiary "will replace the employee that is no longer employed. See 
attach Form W-2-Wage and Tax Statement and up to the extend [sic] of my salary." 
1 
 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 1 18. 
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 hi's contention is not persuasive. It is noted that wages already paid to others are not available to prove the ability 
to pay the wage proffered to the beneficiary at the priority date of the petition and continuing to the present. 
Moreover, there is no evidence that the position of the previous employees' involved the same duties as those set 
forth in the Form ETA 750. The petitioner has not documented the position, duty, and date of termination of the 
worker(s) who performed the duties of the proffered position. If that employee(s) performed other lunds of work, 
then the beneficiary could not have replaced him or her. Similarly, officer compensation paid out to Mr. in 
2002 and 2003 represents compensation to one who materially participates in the business. Many of the duties 
performed by an officer(s) are not the same as those to be performed by the beneficiary and as such, the 
compensation would not be considered to be an available source with which to pay the beneficiary. It is also 
noted that whether desi 
 ated as a salary in 2001 or as officer compensation in 2002 and 2003, it is not credible 
to conclude that Mrmentire compensation of $26,000 in 2001 and $16,500 in 2002, as well as almost 
35% in 2003, would have been able to be foregone in order to increase the net income to a level sufficient to 
meet the proffered wage. It is further noted that the end-of-year cash sum of $4,490, mentioned by Mr. = 
relevant to 2001, will not be considered standing alone as a sum available to pay the proffered wage, as it is an 
isolated figure taken from Schedule L as a current asset and must be balanced against the petitioner's current 
liabilities as discussed above. It is finally observed that the evidence fails to reveal that anyone in the 
petitioner's organization has ever received a salary equal to the proffered wage, which also lends doubt to the 
bona fides of the job offer. 
It is further noted that the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18,2003) also considered 
whether the personal assets of one of a corporate petitioner's directors should be included in the examination of 
the petitioner's ability to pay the proffered wage. In rejecting consideration of such individual assets, the court 
stated, "nothing in the governing regulation, 8 C.F.R. $ 204.5, permits [CIS] to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage." A corporation is a separate and distinct 
legal entity from its owners or stockholders. See Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 
(Comm. 1980). Consequently, the assets of its shareholders or of other enterprises or corporations cannot be 
considered in determining the petitioning corporation's ability to pay the proffered wage. 
In determining a petitioner's ability to pay a certified wage, CIS will examine whether a petitioner may have 
employed and paid wages to a beneficiary during a given period. If a petitioner establishes by credible 
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. If either the 
petitioner's net taxable income or net current assets can cover any shortfall resulting from a comparison of actual 
wages paid to the proffered wage, then the petitioner's ability to pay the certified wage may also be demonstrated 
for a given period. In the instant case, no evidence has been submitted to establish that the petitioner employed 
and paid wages to the beneficiary. 
CIS will then examine the net income figure reflected on the petitioner's federal income tax return(s), without 
consideration of depreciation or other expenses. As noted above, it will also review a petitioner's current assets 
and current liabilities as reflected on Schedule L of the tax return as an alternative method of determining a 
petitioner's ability to pay the proffered wage. 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. 
Suva, 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. 
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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). 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. 
In this case, as noted by the director, the petitioner's 2001 tax return reveals that neither its -$16,029 in taxable 
income before the NOL deduction, nor its -$31,416 in net current assets could support payment of the proposed 
wage offer of $39,291.20 or establish its ability to pay during this period. In 2002 and 2003, the petitioner also 
reported income loss of $25,600 and $4,080, respectively, and failed to demonstrate its ability to pay the certified 
wage in either of these years. As Schedule L of the 2002 and 2003 tax returns did not contain a statement of 
assets and liabilities, this calculation was not available for these two years. The federal tax returns provided to 
the record do not establish the petitioner's ability to pay the proposed wage offer of $39,291.20. 
Accordingly, based on the evidence contained in the record and the foregoing discussion, we cannot conclude that 
the petitioner has demonstrated its continuing ability to pay the proffered wage as of the priority date of the 
petition. 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.