dismissed EB-3 Case: Hospitality

idedih/ing data deleted to 
pevent clearly unwarranted 
invasion of pemnal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Petition for Alien Worker as an Other Worker 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. 
Administrative Appeals Office 
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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 motel. It seeks to employ the beneficiary permanently in the United States as a bilingual 
secretary. 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. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3)(A)(iii), 
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 unskilled labor, 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. $ 204.5(g)(2) states: 
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 either 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 profit/loss 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 petition's 
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 C.F.R. 5 204.5(d). The priority date in the instant 
petition is February 22, 2001. The proffered wage as stated on the Form ETA 750 is $16.14 per hour, which 
amounts to $33,571.20 annually. On the Form ETA 750B, signed by the beneficiary on January 27,2001, the 
beneficiary claimed to have worked for the petitioner beginning in July 1999 and continuing through the date 
of the ETA 750B. The ETA 750 was certified by the Department of Labor on June 27,2003. 
The 1-140 petition was submitted on December 23, 2003. On the petition, the petitioner claimed to have been 
established on September 18, 1985 and to currently have one employee. In the items for the petitioner's gross 
annual income and net annual income the petitioner wrote "GIF - ' (1-140 
petition, Part 5). With the petition, the petitioner submitted supporting evidence. 
In a request for evidence (RFE) dated February 13, 2004, the director requested additional evidence relevant 
to the petitioner's continuing ability to pay the proffered wage beginning on the priority date. 
In response to the RFE, the petitioner submitted additional evidence. The petitioner's submissions in response 
to the RFE were received by the director on May 7,2004. 
In a decision dated August 1 1, 2004, the director determined that the evidence did not establish that the petitioner 
had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence, and denied the petition. 
On appeal, counsel submits a brief and additional evidence. Counsel states on appeal that Schedule L balance 
sheets of the petitioner's corporate income tax returns in the record show that the petitioner has had sufficient 
resources available to pay the proffered wage during the relevant period. 
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. Ij 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). 
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. Ij 204.5(g)(2). In 
evaluating whether a job offer is realistic, 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 Sonegma, 12 I&N Dec. 
6 12 (Reg. Comm. 1967). 
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 
instant case, on the Form ETA 750B, signed by the beneficiary on January 27, 2001, the beneficiary claimed to 
have worked for the petitioner beginning in July 1999 and continuing through the date of the ETA 750B. In the 
RFE, the director stated, "If the beneficiary was employed by you in 2001 - 2003, submit copies of the 
beneficiary's Form W-2 Wage and Tax Statement(s) showing how much the beneficiary was paid by your 
business." (RFE, February 13, 2004). Nonetheless, no copies of any Form W-2's of the beneficiary were 
submitted in evidence, nor does the record contain any other evidence corroborating the beneficiary's claim of 
employment with the petitioner or indicating the amount of any compensation received by the beneficiary from 
the petitioner. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 (9~ Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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)' ard, 703 F.2d 571 (7" Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
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paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is an S corporation. The record contains copies of the petitioner's Form 
1120s U.S. Income Tax Returns for an S Corporation for 2000, 2001, 2002 and 2003. The record before the 
director closed on May 7,2004 with the receipt by the director of the petitioner's submissions in response to the 
RFE. As of that date the petitioner's federal tax return for 2003 was the most recent return available. 
Where an S corporation's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on line 2 1 of page one of the petitioner's Form 1 120s. The instructions on the 
Form 1120s U.S. Income Tax Return for an S Corporation state on page one, "Caution: Include only trade or 
business income and expenses on lines la through 21 ." Where an S corporation has income from sources other 
than from a trade or business, that income is reported on Schedule K. See Internal Revenue Service, Instructions 
for Form 1120s (2003), available at http://www.irs.gov/pub/irs-prior/il120s--2003.pdf; Instructions for Form 
1 120s (2002), available at http://www.irs.gov/pub/irs-priorli 1 120s--2002.pdf. 
Similarly, some deductions appear only on the Schedule K. See Internal Revenue Service, Instructions for Form 
4562 (2003), at 1, available at http://www.irs.gov/pub/irs-prior/i4562--2003.pdf; Internal Revenue Service, 
Instructions for Form 1 120s (2003), at 22, available at http://www.irs.gov/pub/irs-priorti 1 120s--2003 .pdf. 
Where the Schedule K has relevant entries for either additional income or additional deductions, net income is 
found on Line 23 of the Schedule K, for income. 
In the instant petition, the petitioner's tax returns indicate no income from activities other than from a trade or 
business and no additional relevant deductions. Therefore the figures for ordinary income on line 21 of page one 
of the petitioner's Form 1120s tax returns will be considered as the petitioner's net income. The petitioner's tax 
returns state amounts for ordinary income on line 21 as shown in the table below. 
Tax Wage increase needed Surplus or 
year Ordinary income to pay the proffered wage deficit 
2000 -$3,789.00 not applicable not applicable 
200 1 -$13,607.00 $33,571.20* -$47,178.20 
2002 -$4,848.00 $33,571.20* -$38,4 19.20 
2003 -$348.00 $33,57 1.20* -$33,919.20 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a corporate taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. If a corporation's 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 
Page 5 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L's attached to the petitioner's tax returns yield the amounts for net 
current assets as shown in the following table. 
Tax Net Current Assets Wage increase needed 
year Beginning of year End of year to pay the proffered wage 
2000 -$4,907.00 -$4,9 16.00 not applicable 
200 1 -$4,9 16.00 -$4,755.00 $33,571.20* 
2002 -$4,755.00 -$1,750.00 $33,571.20* 
2003 -$1,750.00 -$1,903 .OO $33,571.20* 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in any of 
the years at issue in the instant petition. 
Counsel states in his brief that the Schedule L balance sheets of the petitioner's corporate income tax returns 
in the record show that the petitioner has had sufficient resources available to pay the proffered wage during 
the relevant period. Counsel states that sufficient funds have been available to the petitioner in the form of 
loans from shareholders. The record contains a letter dated October 12, 2004 from a certified public 
accountant. In the letter, the accountant states that he has been the petitioner's accountant since 1993 and that 
in that capacity he is responsible for preparing quarterly and annual reports for the petitioner. The accountant 
states, "I hereby certify that despite the fact that the company in 2000, 2001, 2002 and 2003 did not enjoy 
significant profit, the company still had between $138,379.00 to $162,655.00 made available to it in the form 
of loans from shareholders . . . ." The accountant also states : "Loans from the shareholder were loaned to 
the company as a long-term loan. Meanwhile 2000, 2001, 2002 and 2003 has had sufficient income and 
sufficient assets available to it, to have and to remain financially capable of paying the salary of $16.14 per 
hour." (Letter from CPA, October 12, 2004 (grammatical errors in the original)). 
Opinion letters from certified public accountants are not among the types of evidence listed in the regulation 
at 8 C.F.R. 5 204.5(g)(2). Moreover, the shareholder loans referred to by counsel and by the accountant are not 
assets of the petitioner, but rather are liabilities. To the extent that any proceeds from such loans were held in the 
form of cash or other current assets, such proceeds are fully considered above in the analysis of the petitioner's 
net current assets for each of the years at issue in the instant petition. 
The record also contains copies of Form 1040 U.S. Individual Income Tax Returns for 2001, 2002 and 2003 
of the two persons who each own 50% of the shares of the petitioners. The Form 1040's are joint returns, and 
they show that the two shareholders are a married couple. The record also contains a copy of a savings 
account quarterly statement dated February 1, 2004 for an account of the petitioner's two shareholders at the 
National Bank of Jeffersonville, Jeffersonville, New York; a bank reference letter dated March 10, 2004 from 
an executive vice president of that bank; and a bank reference letter dated March 5, 2004 from a branch 
manager, Manufacturers and Traders Trust Company, Liberty, New York. Each of the two bank reference 
letters states that is a customer in good standing with that bank. is one of 
the petitioner's two shareholders. 
CIS may not "pierce the corporate veil" and look to the assets of the corporation's owners to satisfy the 
corporation's ability to pay the proffered wage. It is a basic rule of law concerning corporations 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. 63 1 (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. 
The record contains no other evidence relevant to the financial condition of the petitioner. For the reasons 
discussed above, the evidence therefore fails to establish the petitioner's ability to pay the proffered wage as 
of the priority date and continuing until the beneficiary obtains lawful permanent residence. 
In her decision, the director correctly stated the petitioner's net income in 2001, 2002 and 2003 and correctly 
evaluated the petitioner's year-end net current assets for each of those years. The director found that those 
amounts failed to establish the petitioner's ability to pay the proffered wage in those years. The decision of 
the director to deny the petition was correct, based on the evidence in the record before the director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
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.