dismissed EB-3 Case: Hospitality

U.S. Department of f?nn~eland Security 
20 Mass. Ave., N.W.. Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privaoy 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
c 
FILE: = Office: TEXAS SERVICE CENTER Date: sp 2 8 2,?M 
SRC-04-237-5 1568 
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. 8 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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 motel. It seeks to employ the beneficiary permanently in-the United States as an executive 
housekeeper. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification (labor certification or the Form ETA 750), 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. 
On appeal, counsel submits additional eyidence.' 
Section 203(b)(3)(A)(i) of the Immigratian and Nationality Act (the Act), 8 U.S.C. 9 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. fj 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. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted on January 30,2004. The proffered wage as stated on the Form ETA 
750 is $32,000 per year. On the petition, the petitioner claimed to have been established in 2000, and to 
currently employ five (5) workers. The petitioner did not provide information about its gross and net annual 
- 
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. ?j 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 AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
income on the form. 
 On the Form ETA 750B, the beneficiary did not claim to have worked for the 
petitioner.' 
The petition was submitted on August 30, 2004 with the petitioner's Form 1120s tax return for 2002 and 
2003 pertinent to its ability to pay the proffered wage. On January 26, 2005, the director denied the petition, 
finding that the petitioner did not establish that it had the a6ility to pay the proffered wage beginning on the 
priority date with its net income of $(39,446) and net current assets of $(9,828) in 2002, and its net income of 
$(55,359) and net current assets of $(5,441) in 2003. 
On appeal counsel asserts that the petitioner has been doing well financially in 2004 and has been generating 
strong cash flows from operations, and submits the petitioner's bank statements to establish the petitioner's 
ability to pay the proffered wage in 2004. 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (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 beneficiary did not claim to have worked 
for the petitioner, nor did the petitioner submit W-2 forms or any other compensation documents for the 
beneficiary. The petitioner failed to establish its ability to pay through wages paid to the beneficiary. 
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 
Changv. 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 its gross receipts with depreciation and on wage expense is misplaced. Showing that the 
petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner 
paid total 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. 
2 
 The beneficiary signed but did not date the Form ETA 750B. 
(Emphasis in original.) Chi-Feng at 537. 
The record contains copies of the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation for 
2002 and 2003. According to the tax returns in the record, the petitioner was elected as an S corporation on 
January 1, 1997 and the petitioner's fiscal year is based on a calendar year. The petitioner's tax returns stated 
net income3 of $(39,446) in 2002, and $(55,359) in 2003. Therefore, the petitioner did not have sufficient net 
income to pay the proffered wage in 2002 or 2003. 
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 liabilitie~.~ 
 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 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. 
Calculations based on the Schedule L's attached to the petitioner's tax returns for 2002 and 2003 yield that 
the petitioner had current assets of $(2,233) and current liabilities of $7,595, therefore, net current assets were 
$(9,828) in 2002; the petitioner had current assets of $(2,600) and current liabilities of $2,841, therefore, net 
current assets were $(5,441) in 2003. Therefore, the petitioner did not have sufficient net current assets to pay 
the proffered wage in 2002 or 2003. 
Therefore, the petitioner had not established that it had the ability to pay the beneficiary the proffered wage in 
2002 and 2003 through an examination of wages paid to the beneficiary, or its net income or net current 
assets. The AAO notes that the priority date in the instant case is January 30, 2004, therefore, the petitioner's 
2002 and 2003 tax returns are not necessarily dispositive. However, the record before the director closed on 
August 30, 2004 with the receipt by the director of the petitioner's initial submission. As of that date the 
petitioner's federal tax return for 2004 was not available yet. However, the petitioner did not submit any other 
regulatory-prescribed evidence to establish its ability to pay the proffered wage in 2004 and onwards. The 
burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $1361. 
The petitioner had not established its ability in 2004 because of failing to submit evidence for that year. 
On appeal counsel asserts that: "[the petitioner] has been doing well financially in 2004 and has been 
generating strong cash flows from operations." However, counsel does not submit any evidence to support 
3 
Ordinary income (loss) from trade or business activities as reported on Line 2 1. 
4 
According to Barron 's Dictionary ofAccounting Terms 11 7 (3Td 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. 
his assertions. 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). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel submits bank statements for the petitioner's business account for 2004 and asserts that the bank 
statements may establish the petitioner's ability to pay the proffered wage. 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. 8 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While 
ths regulation allows additional material "in appropriate cases," the petitioner in ths case has not demonstrated 
why the documentation specified at 8 C.F.R. § 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 sustainable ability to pay a proffered wage. Third, no evidence 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 was or would be considered in determining the petitioner's net current assets. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
8 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.