dismissed EB-3 Case: Food Service

identifying data deleted to 
. pvernt dearly unwarranted 
invasion d per& privacy 
PUBLIC COPY 
U.S. Department of IIorneland Security 
20 Mass. Ave., N.W.. Rrn. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
fik 
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. 9 11 53(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. 
kobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the preference visa petition and a subsequent 
motion to reopenlreconsider. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is a restaurant and caterer. 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, 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. 
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. 
As set forth in the director's June 29 and November 16, 2004 denials, the single issue in this case is whether 
or not 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 8 C.F.R. $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 
$ 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. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on August 17,2000'. The proffered wage as stated on the Form ETA 
750 is $1 1.47 per hour ($23,857.76 per year). The Form ETA 750 states that the position requires two years 
of experience in the proffered position. 
' The instant beneficiary is being substituted for the initial recipient of the certified alien labor certification 
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 
2 
pertinent evidence in the record, including new evidence properly submitted upon appeal . The petitioner 
submits previously submitted evidence on appeal. Relevant evidence in the record includes the petitioner's 
federal partnership income tax returns for 2000 through 2002; affidavit and financial statement from the 
petitioner's owner; the petitioner's owner's individual income tax returns; a statement from BB&T 
concerning the balances in the petitioner's owner's personal bank accounts; real estate appraisals; and a letter 
from the petitioner's certified public accountant (CPA). The record does not contain any other evidence 
relevant to the petitioner's ability to pay the wage. 
The evidence in the record of proceeding shows that the petitioner was structured as a limited liability 
company in 2002 and a limited liability partnership in 2000 and 2001. On the petition, the petitioner claimed 
to have been established in 1998 and to currently employ two workers. According to the tax returns in the 
record, the petitioner's fiscal year is based on a calendar year. On the Form ETA 750B, signed by the 
beneficiary on October 17,2002, the beneficiary did not claim to have worked for the petitioner. 
On appeal, counsel asserts that the petitioner's owner's personal assets establish the petitioner's continuing 
ability to pay the proffered wage beginning on the priority date. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
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. 8 204.5(g)(2). In 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (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. 6 12 (Reg. Comm. 1967). 
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 petitioner has not established that it employed and paid the beneficiary the full proffered 
wage from the priority date. 
application. An 1-140 petition for a substituted beneficiary retains the same priority date as the original ETA 
750. Memo. from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization Service, to 
Regional Directors, et al., Immigration and Naturalization Service, Substitution of Labor Certijication 
Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fm/h96/fm~28-96a.pdf (March 7, 1996). 
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 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
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). 
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. 
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 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 tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage: 
In 2000, the Form 1 120 stated net income of -$455. 
In 2001, the Form 1 120 stated net income of $9,7 14. 
In 2002, the Form 1 120 stated net income of $3,109. 
Therefore, in all years under analysis, 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 ~iabilities.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6 and include cash-on-hand. 
Its year-end current liabilities are shown on lines 15 through 17. 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 2000 were $3,956. 
The petitioner's net current assets during 200 1 were $6,133. 
The petitioner's net current assets during 2002 were not available since Schedule L was not provided. 
Therefore, for the years 2000 through 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 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 argues that the petitioner's owner's personal assets should be considered. However, the petitioner is 
a limited liability company (LLC) in 2002. Although structured and taxed as a partnership, its owners enjoy 
limited liability similar to owners of a corporation5. A LLC, like a corporation is a legal entity separate and 
distinct from its owners. The debts and obligations of the company generally are not the debts and 
obligations of the owners or anyone else.6 An investor's liability is limited to his or her initial investment. As 
the owners and others only are liable to his or her initial investment, the total income and assets of the owners 
and others and their ability, if they wished, to pay the company's debts and obligations, cannot be utilized to 
demonstrate the petitioner's ability to pay the proffered wage. The petitioner must show the ability to pay the 
proffered wage out of its own funds in 2002. 
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 1 18. 
Because a corporation is a separate and distinct legal entity from its owners and shareholders, 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. See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 
(Comm. 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) 
stated, "nothing in the governing regulation, 8 C.F.R. 5 204.5, permits [CIS] to consider the financial 
resources of individuals or entities who have no legal obligation to pay the wage." 
6 
 Although this general rule might be amenable to alteration pursuant to contract or otherwise, no evidence 
appears in the record to indicate that the general rule is inapplicable in the instant case. 
However, the petitioner was structured as a limited liability partnership (LLP), in 2000 and 2001. Like a 
general partnership, a LLP consists of a general partner and multiple limited partners. A general partner is 
personally liable for the partnership's total liabilities. As such, a general partner's personal assets may be 
utilized to show the ability to pay the proffered wage. However, a general partner's personal expenses and 
liabilities must also be examined in order to make a determination that his or her assets are truly available to 
pay the proffered wage. Conversely, a limited partner's liability is limited to his or her initial investment. 
The record of proceeding establishes that I anare gen 
 titioner's 
LLP business in 2000 and 2001. An undated letter from BB&T states that 
 has three 
accounts at their bank, all opened before 2000, with balances totaling 
-; individual income tax return for 2000 showing total wages of $42,202 and 
documentation from Fairfax County, Virginia's property search website reflecting that 
residence is valued at $754,435 in July 2004. 
 A financial statement 
states that the personal residence is appraised at $900,000 with a $454,000 mortgage. 
indicates that another rental property is owned in Arlington, Virginia worth 
$600,000 with a $300,000 mortgage. 
 The financial statement itemizes other personal assets such as 
household furnishings, jewelry, and automobiles. Finally, a letter from the petitioner's CPA states that the 
petitioner's business has shown steady growth and has a positive outlook and its owners are involved in 
managing and contributing financially to the business venture. 
The record of proceeding contains insufficient information regarding the general partner's personal expenses 
and corroboration of personal assets. No evidence was provided concerning the alleged ownership of the 
rental property in Arlington, Virginia. Employers do not typically rely upon or utilize real estate properties to 
- - 
pay wages to its emplo ees. No corroboration was provided concerning the unaudited financial statement of 
net worth provided by No history was provided from the BB&T account balances to 
ascertain how much cash was available to the petitioner's owners and when. No evidence was submitted 
about the general partner's personal expenses to determine how to reduce their access to unencumbered 
personal assets. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As such, the petitioner 
has not demonstrated that the personal assets may be utilized to pay the proffered wage in 2000 
and 200 1. 
It is also noted that the petitioner represented in response to the director's request for evidence that the 
position is not newly created and 
 for which wages in the amount of 
$20,039 have been paid. An affidavit from 
 petitioner has used "the 
services of its main officers, 
 the duties and tasks for 
which we seek to fulfill by employing [the beneficiary]." 
 also states that once the 
beneficiary is hired, "the outside contractors will not be hired for performing any duties related to the Cook 
7 
 The regulation at 8 C.F.R. 5 204.5(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 statements, the AAO cannot conclude that they are 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. 
Page 7 
position." The petitioner's tax returns reflect that it paid $20,039 in salaries and wages in 2002; $14,585 in 
2001; and $6,862 in 2000. No "Cost of Labor" is reported in any year. 
The record does not support the replacement theory because other than the affidavit from Shahin Golesorki, no 
evidence was submitted that establishes the independent contractor's identities, wages, employment, or provide 
evidence that the petitioner has replaced or will replace them with the beneficiary8. The petitioner has not 
documented the position, duty, and termination of the worker who performed the duties of the proffered position9. 
If that employee performed other kinds of work, then the beneficiary could not have replaced him or her. 
Additionally, it is noted that the total wages paid in 2000,2001, and 2002, are less than the proffered wage. 
The evidence submitted fails to demonstrate that the petitioner has 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. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
8 
 Such as W-2 or 1099 forms, paystubs, or payroll records. 
9 
 The purpose of the instant visa category is to provide employers with foreign workers to fill positions for 
which U.S. workers are unavailable. If the petitioner is, as a matter of choice, replacing U.S workers with 
foreign workers, such an action would be contrary to the purpose of the visa category and could invalidate the 
labor certification. However, this consideration does not form the basis of the decision on the instant appeal.