dismissed EB-3 Case: Food Service

ndentifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of tIomeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 3. 136 
muc COPY 
Date: MAY 0 2 2006 
WAC 03 03 1 50286 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. tj 1 153(b) 
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 Director, California Service Center denied the employment-based immigrant visa 
petition. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a board and care facility for the elderly. 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, accompanies 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. 
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 ths case is documented by the record and incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's February 14, 2003 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 Act, 8 U.S.C. 9 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 sllled labor (requiring at least two years training or experience), not of a 
temporary or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 8 204.5(g)(2) states, in pertinent part: 
Ability ofprospective 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. In a case where the prospective United States 
employer employs 100 or more workers, the director may accept a statement from a 
financial officer of the organization which establishes the prospective employer's ability 
to pay the proffered wage. In appropriate cases, additional evidence, such as profitlloss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
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 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 CFR 8 204.5(d). The priority date in the instant 
petition is February 15, 2001. The proffered wage as stated on the Form ETA 750 is $1 1.55 per hour or 
$24,024 annually. 
The AAO takes a de novo look at issues raised in the denial of thts 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 
Page 3 
pertinent evidence in the record, including new evidence properly submitted upon appeal1. 
 Relevant 
evidence submitted on appeal includes a copy of the petitioner's 2001 Form 1120, U.S. Corporation Income 
Tax Return, personal bank statements of the petitioner's owners for the period August 30, 2001 through 
December 26,2002, a copy of counsel's response to the director's notice of intent to deny (NOID), a copy of 
Masonly Masters, Inc. v. Bornburgh, 875 F.2d 898 (C.A.D.C. 1 989), and a copy of Kurzban's Immigration 
Law Sourcebook (8~ Ed.), page 641. Other relevant evidence in the record includes copies of the petitioner's 
payroll records for the period September 16, 2002 through October 15, 2002 showing that the petitioner did 
not employee the beneficiary during that time. The petitioner's 2001 Form 1120 reflects a taxable income 
before net operating loss deduction and special deductions or net income of $2,608 and net current assets of 
$0. The petitioner's owners' personal bank statements reflect a money market fund of $49,796.28 as of 
December 26,2002. The record does not contain any other evidence relevant to the petitioner's ability to pay 
the proffered wage. 
On appeal, counsel alleges that the director erred in not considering the petitioner's response to the 
NOID; that the petitioner's response to the NOID established its ability to pay the proffered wage; that the 
director erred in his interpretation of the petitioner's 2001 tax return; and that the director failed to 
consider the beneficiary's ability to generate income in determining the petitioner's ability to pay the 
proffered wage. Counsel cites Masonly Masters, Inc. v. Thornburgh and Kurzban's Immigration Law 
Sourcebook in support of his contention. 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the 
petitioner employed the beneficiary at the time the priority date was established. If the petitioner 
establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than 
the proffered wage, this evidence will be considered prima facie proof of the petitioner's ability to pay the 
proffered wage. In the present matter, the petitioner did not establish that it employed the beneficiary at a 
salary equal to or greater than the proffered wage in 200 1. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the 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), affd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc. v. Sava, 
the court held CIS had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than on the petitioner's gross income. 623 F. Supp. at 1084. The 
court specifically rejected the argument that CIS should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to 
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. 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). 
Page 4 
net cash the depreciation expense charged for the year." Chi-Feng Chang v. Thornburgh, 719 F. Supp. at 
537; see also Elatos Restaurant Corp. v. Sava, 632 F. Supp. at 1054. 
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. 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 liabilities.' 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 a corporation's end-of-year 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. The petitioner's 2001 tax return reflects net current assets of $0. The petitioner 
could not have paid the proffered wage of $24,024 ffom its net current assets in 2001. 
Counsel contends that in ignoring the petitioner's response to the NOD, the director did not adhere to 8 
C.F.R. 9 103.3(a)(l)(i) by failing to state the specific reason or reasons for the denial of the petition. Counsel 
argues that the petitioner is entitled to either consideration of the evidence submitted in response to the NOD 
or a written decision stating the specific reasons for the denial. The AAO is in agreement with counsel with 
regard to the director providing a written decision stating the specific reasons for the denial. Merely referring 
back to the NOD does not provide the petitioner with an adequate explanation of the grounds for denial, nor 
does it clearly establish that the response was considered in the denial. The AAO will consider all of 
counsel's assertions in regard to ability to pay including his assertion in response to the NOID. 
Counsel claims that the petitioner's response to the NOD established its ability to pay the proffered wage 
through the owner's personal bank statements. Counsel asserts that the owners maintained a cash reserve 
through a money market fund sufficient to pay the proffered wage of $24,024 per year. Counsel's reliance 
on the balance in the owners' bank account is misplaced, as bank statements are not among the three types 
of evidence, enumerated in 8 C.F.R. 9 204.5(g)(2), required to illustrate a petitioner's ability to pay a 
proffered wage. In addition, the petitioner is a corporation. 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 
2 
 According to Barron's Dictionary of Accounting Terms 117 (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 
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. 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. 9 204.5, permits [CIS] to consider the financial resources of individuals or entities 
who have no legal obligation to pay the wage." While the petitioner's owners might wish to pay the 
proffered wage from their personal funds, because the petitioner is a corporation, they are not legally 
compelled to do so. Therefore, the AAO will not accept the money market funds as evidence to establish 
the petitioner's ability to pay the proffered wage. Furthermore, counsel has not provided any evidence 
that the money market funds were to be solely used to pay the beneficiary the proffered wage. In fact, the 
fund appears to have withdrawals made on a fairly consistent basis with no explanation given as to the 
purpose of those withdrawals. 
Counsel maintains that the director erred in his interpretation of the petitioner's tax return, that the 
depreciation deduction was not an actual cash expenditure, and that the depreciation expense should be 
added back to the taxable income when determining the petitioner's ability to pay the proffered wage. 
Counsel's argument that the petitioner's depreciation deduction should be included in the calculation of 
its ability to pay the proffered wage is unconvincing. 
A depreciation deduction does not require or represent a specific cash expenditure during the year 
claimed. It is a systematic allocation of the cost of a tangible long-term asset. It may be taken to 
represent the diminution in value of buildings and equipment, or to represent the accumulation of hnds 
necessary to replace perishable equipment and buildings. But the cost of equipment and buildings and the 
value lost as they deteriorate is an actual expense of doing business, whether it is spread over more years 
or concentrated into fewer. 
While the expense does not require or represent the current use of cash, neither is it available to pay 
wages. No precedent exists that would allow the petitioner to add its depreciation deduction to the 
amount available to pay the proffered wage. Chi-Feng Chang v. Thornburgh, 719 F.Supp. 532 (N.D. 
Texas 1989). See also Elatos Restaurant Corp. v. Suva, 632 F.Supp. 1049 (S.D.N.Y. 1985). The 
petitioner's election of accounting and depreciation methods accords a specific amount of depreciation 
expense to each given year. The petitioner may not now shift that expense to some other year as 
convenient to its present purpose, nor treat it as a fund available to pay the proffered wage. Further, 
amounts spent on long-term tangible assets are a real expense, however allocated. 
Counsel argues that the compensation to officers should also be added back to the taxable income when 
determining the petitioner's ability to pay the proffered wage, as the owners had complete discretion to 
adjust their compensation if necessary to have paid the proffered wage for 2001. However, in this case, 
the petitioner has not established that it exercises a large degree of financial flexibility in setting 
employee salaries, or that the petitioner easily fulfills its salary obligations. In fact, counsel has not 
provided any evidence that the compensation of officers is elastic or that the salaries paid of only $29,829 
to four employees, do not indicate that the owners are not involved in the day-to-day operation of the 
business and require those funds to support themselves. Without additional proof, the petitioner has not 
Page 6 
demonstrated that its two owners could forego approximately 50% of its compensation to pay an 
employee. 
Counsel also asserts that the director failed to consider the beneficiary's ability to generate income in 
determining the petitioner's ability to pay the proffered wage. Counsel claims that the beneficiary will be 
able to generate income by helping the petitioner satisfy its elderly clients' nutritional needs; and, thereby, 
provide better board-and-care service. Counsel cites Masonry Masters, Inc. v. Thornburgh and Kurzban's 
Immigration Law Sourcebook in support of his assertion. The AAO is not bound to follow the published 
decision of a United States district court in cases arising within the same district. See Matter of K-S-, 20 
I&N Dec. 715 (BIA 1993). Although part of this decision mentions the ability of the beneficiary to 
generate income, the holding is based on other grounds and is primarily a criticism of CIS for failure to 
specify a formula used in determining the proffered wage. Further, in this instance, no evidence or 
documentation has been provided to explain how the beneficiary's employment as a cook will 
significantly increase profits for a board and care facility. Counsel has not shown how the beneficiary's 
being a cook correlates into dollars and cents for the petitioner. This hypothesis cannot be concluded to 
outweigh the evidence presented in the corporate tax returns. In addition, the assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). Furthermore, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Sofflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). 
The petitioner's 2001 tax return reflects a taxable income before net operating loss deduction and special 
deductions or net income of $2,608 and net current assets of $0. The petitioner could not have paid the 
proffered wage of $24,024 from either its net income or net current assets in 200 1. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
9 1361. The petitioner has not sustained that burden. Accordingly, the previous decision of the AAO will be 
affirmed, and the petition will be denied. 
ORDER: The appeal is dismissed.