dismissed EB-3 Case: Food Service

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. '3000 
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Id 
 Washington, DC 20529 
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U.S. Citizenship 
and Immigration 
Services ,f 7 
' 1 
FILE: Office: TEXAS SERVICE CENTER 
SRC-04-0 15-5 1087 
 Date: Nw 2 8 2006 
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PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Profession?l pursuant'to section 
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203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(3) 
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ON BEHALF OF PETITIONER: -A 
- 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 
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DISCUSSION: The preference visa petition was denied by the Director, Texas 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, 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 February 28, 2005 denial, 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. 
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The regulation 8 C.F.R. $ 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay waie. 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 C.F.R. $ 
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 Wingk Tea House, 16 I&N Dec. 158 (Act. Reg. 
Cornrn. 1977). 
Here, the Form ETA 750 was accepted on March 3, 2003. The proffered wage as stated on the Form ETA 
750 is $9.50 per hour ($19,760 per year). The Form ETA 750 states that the position requires two years of 
experience in the proffered position. 
The AAO takes a de novo look at issues raised in the denial of this petidon. 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 
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pertinent evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence 
in the record includes the petitioner's financial statements for 2002 and 2003, Form 941 Employer's Quarterly 
Federal Tax Returns for the four quarters of 2002 and the first and second quarters of 2003, bank statements 
for the petitioner's business checking accounts coverin a eriod from November 2002 to December 2003, 
Form 1040 individual tax returns filed by for 2002 and 2003, the beneficiary's paychecks, 
the petitioner's payroll journal, and a W-2 form for 2004 issued by the petitioner to the beneficiary. The 
record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
On the petition, the petitioner claimed to have been established in 1998, and to currently employ four 
workers. The petitioner did not provide information about its gross and net income on the form. On the Form 
ETA 750B, signed by the beneficiary on February 21,2003, the beneficiary did not claim to have worked for 
the petitioner. Counsel claims on appeal that the beneficiary has began worlung for the petitioner since 
, February 2004. 
On appeal, counsel asserts that the director erred in making the decision based on the petitioner's 2002 
financial documents, and failed to consider the petitioner's assets reflected on bank statements. Counsel also 
asserts that the fact the petitioner is currently paying the beneficiary the proffered wage establishes its 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 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. 5 204.5(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 ~atter of Sonegawa, 12 I&N Dec. 612 (Reg. Cornm. 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 consideredprima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, the petitioner did not claim that it employed and paid the beneficiary any compensation, nor did 
it submit any documentary evidence to prove the compensation in 2003, the year of the priority date. 
Therefore, the petitioner did not establish that it the beneficiary the full proffered wage from the priority 
date. However, the record of proceeding contains copies of the beneficiary's paychecks, payroll journal and 
W-2 form for 2004. These documents show that the petitioner paid the beneficiary $12,160 in 2004, which is 
$7,600 less than the proffered wage in that year. The petitioner is obligated to demonstrate that it could pay 
the full proffered wage in 2003 and the difference between the wages it actually paid to the beneficiary and 
the proffered wage in 2004. 
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. 
 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). 
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On appeal, counsel asserts that since the etitioner has paid the beneficiary at the proffered wage rate since 
February 2004, according to the language emorandum, it has established its continuing ability 
to pay the proffered wage beginning on the priority date. Counsel urges CIS to consider the wage rate paid in 
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February 2004 as satisfying that particular method of demonstrating a petitioning entity's ability to pay. 
emorandum relied upon by counsel provides guidance to adjudicators to review a record of 
proceeding and make a positive determination of a petitioning entity's ability to pay if, in the context of the 
beneficiary's employment, "[tlhe record contains credible verifiable 'evidence that the petitioner is not only is 
employing the beneficiary but also has paid or currently is paying the proffered wage." 
The AAO consistently adjudicates appeals in accordance with theemorandum. However, counsel's 
interpretation of the language in that memorandum is overly broad and does not comport with the plain 
language of the regulation at 8 C.F.R. $ 204.5(g)(2) set forth in the memorandum as authority for the policy 
guidance therein. The regulation requires that a petitioning entity demonstrate its continuing ability to p 
proffered wage beginning on the priority date. If CIS and the AAO were to interpret and apply the ah 
memorandum as counsel urges, then in this particular factual context, the clear language in the regulation 
would be usurped by an interoffice guidance memorandum without binding legal effect. The petitioner must 
demonstrate its continuing ability to pay the proffered wage beginning on the priority date, which in this case 
is March 3, 2003. Thus, the petitioner must show its ability 'to pay the proffered wage not only in February 
through September 2004, when counsel claims it actually began paying the proffered wage rate, but it must 
also show its continuing ability to pay the proffered wage in 2003 and 2004. Demonstrating that the 
petitioner is paying the proffered wage in a specific year may suffice to show the petitioner's ability to pay for 
that year, but the petitioner must still demonstrate its ability to pay for the rest of the pertinent period of time. 
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 contrary to the petitioner's 
assertions. 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, 7 19 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 ~~ecificallirejected 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 
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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 record of proceeding contains Articles of Organization - Certificate of 
Existence from Office of Secretary of State , which evidence that the petitioner is structured as a 
limited liability company. Although structured and taxed as a partnership, its owners enjoy limited liability 
similar to owners of a corporation. 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'.2 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. 
The petitioner did not submit tax returns for the relevant years filed by the petitioner as a LLC despite the 
regulation 8 C.F.R. 204.5(g)(2) and the director's specific request in a request for additional evidence (WE) 
dated October 13, 2004. The tax returns would have demonstrated the amount of taxable income the 
petitioner reported to the IRS and further reveal its ability to pay the proffered wage. The petitioner's failure 
to submit these documents cannot be excused. The failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. 103.2(b)(14). The purpose 
of the request for evidence is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established, as of the time the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and (12). The 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 9 103.2(b)(14). 
Counsel submitted the petitioner's financial statements for 2002 and 2003. However, the regulation at 8 
C.F.R. 8 204.5(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. An audit is conducted in 
accordance with generally accepted auditing standards to obtain a reasonable assurance that the financial 
statements of the business are free of material misstatements. The unaudited financial statements that counsel 
submitted with the petition are not persuasive evidence. The accountant's report that accompanied those 
financial statements makes clear that they were produced pursuant to a compilation rather than an audit. As 
the accountant's report also makes clear, financial statements produced pursuant to a compilation are the 
representations of management compiled into standard form. The unsupported representations of 
management are not reliable evidence and are insufficient to demonstrate the ability to pay the proffered 
wage. 
Counsel also submitted bank statements for the petitioner's business checking accountant covering from 
November 2002 to December 2003. Counsel's reliance on the balance in the petitioner's bank account is 
misplaced. First, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. 
204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows 
additional material "in appropriate cases," the petitioner in this case has not demonstrated why the documentation 
specified at 8 C.F.R. 5 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the 
petitioner. Second, bank statements show the amount in an account on a given date, and cannot show the 
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. 
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sustainable ability to pay a proffered wage. Third, no evideice was submitted to demonstrate that the funds 
reported on the petitioner's bank statements somehow reflect additional available funds that were not reflected on 
its tax return, such as the petitioner's taxable income (income minus deductions) or the cash specified on 
Schedule L that would be considered in determining the petitioner's net current assets had they been provided. 
Therefore, for the years 2003 and 2004, the petitioner did not establish its ability to pay the proffered wage 
because it failed to submit regulatory-prescribed evidence. 
 . 
As previously noted, the petitioner in the instant case is structured as a LLC. 
 Like a corporation, the 
petitioner is a legal entity separate and distinct from its owners. Contrary to counsel's assertion, CIS may not 
"pierce the corporate veil" and look to the assets of the corporation's owner to satisfy the corporation's ability 
to pay the proffered wage. It is an elementary rule that a corporation is a separate and distinct legal entity 
from its owners and shareholders. See Matter of M, 8 I&N Dec. 24 (BIA 1958), Matter of Aphrodite 
Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980), and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. 
Comm. 1980). Consequently, 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. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner has not established that it has the continuing ability to pay the beneficiary the proffered wage 
through an examination of wages paid to the beneficiary, or its net income or net current assets in 2003 and 
2004. 
Counsel's assertions cannot over the director's decision and the evidence submitted does not establish 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. 
4 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.