dismissed EB-3 Case: Hospitality Management

identifying data ddet8d 
pi event clearly unwarranted 
invasion of pa?wnal privscy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: - Office: VERMONT SERVICE CENTER Date: HAY I 5 ZDf& 
EAC 04 121 55417 
9 20f(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a private karaoke club. It seeks to employ the beneficiary permanently in the United States 
as a manager. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification, approved by the U. S. 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. 
According to the petition, the petitioner's business was established in 1998, and, it has three employees. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 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 unavailable. 
The regulation at 8 C.F.R. 4 204.5(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 regulation at 8 CFR tj 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. Any requirements of training or experience for slulled workers, 
professionals, or other workers must be supported by letters fiom trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
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. 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. 15 8 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on March 1, 2001. The proffered wage as stated on the Form ETA 
750 is $53,945.00 per year. The Form ETA 750 states that the position requires two years experience. 
On appeal, the petitioner submits additional evidence. 
With the petition, the petitioner submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; U.S. Internal 
Page 3 
Revenue Service Form tax return for 2002; and, copies of documentation concerning the beneficiary's 
qualifications as well as other documentation. 
The director denied the petition on November 22, 2004, finding that the evidence submitted did not establish 
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
On appeal, the petitioner asserts that the director's decision was based upon erroneous or incomplete 
information. Further, the petitioner states that its 2002 tax return shows assets in the amount of $161,294.00, 
and, that the sole owner of petitioner has substantial personal assets in the amount of $3.6 million, all of 
which evidence the ability to pay the proffered wage. 
The petitioner has submitted the following documents to accompany the appeal statement: an explanatory 
letter; a financial statement; personal U.S. federal tax returns; a blank corporate U.S. federal tax return for 
2003 with instructions; and, the director's decision. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. 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. No evidence was submitted to show that the petitioner 
employed the beneficiary. 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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, 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), affd, 703 
F.2d 57 1 (7th Cir. 1983). In K. C.P. Food Co., Inc. v. Sava, the court held that the Service 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. Supra at 1084. The court specifically rejected the argument that CIS should have 
considered income before expenses were paid rather than net income. Finally, no precedent exists that would 
allow the petitioner to "add back to net cash the depreciation expense charged for the year." Chi-Feng Chang 
v. Thornburgh, Supra at 537. See also Elatos Restaurant Corp. v. Sava, Supra at 1054. 
The tax return' demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $53,945 .OO per year from the priority date of March 1,2001 : 
In 2002, the Form 1120-A stated a taxable income loss2 of <$10,256.00>.~ 
1 
 The petitioner's tax year is March 1,2002 through February 28,2003. 
IRS Form 1120-A, Line 24. 
3 
 The symbols <a number> indicate a negative number, or in the context of a tax return or other financial 
statement, a loss, that is below zero. 
In the subject case, as set forth above, the petitioner did not have taxable income sufficient to pay the 
proffered wage at any time for its tax year 2002 for which the petitioner's tax return is offered for evidence. 
The petitioner asserts in her explanatory letter accompanying the appeal that there are other ways to determine 
the petitioner's ability to pay the proffered wage from the priority date. According to regulation: copies of 
annual reports, federal tax returns, or audited financial statements are the means by which petitioner's ability 
to pay is determined. 
The sole owner of the petitioner has stated that she has substantial personal assets and she has submitted two 
personal joint U.S. federal tax returns with a personal financial statement as evidence of the ability to pay. 
Contrary to the petitioner's primary 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 (Cornrn. 1980), and 
Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comrn. 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. 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. 9 204.5, permits [CIS] to consider the financial resources of individuals or 
entities who have no legal obligation to pay the wage." 
The petitioner states that its 2002 tax return shows assets in the amount of $161,294.00 that evidence the 
ability to pay the proffered wage. 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~.~ The petitioner's year-end current liabilities are shown on 
Part I11 of the return. 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. No information was provided 
on the return to make the above determinati~n.~ 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The petitioner's contentions cannot be concluded to outweigh the evidence presented in the corporate tax 
return as submitted by petitioner that shows that the petitioner has not demonstrated its ability to 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. 
8 C.F.R. 204.5(g)(2). 
5 
 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
6 
 Entities with total assets and total receipts of less than $250,000.00 do not need to complete a Part I11 (or 
Schedule L as the case may be) to submit a tax return. Nevertheless, this does not mean that counsel is 
excused from submitting sufficient financial documentation according to the regulations that would allow the 
petitioner to demonstrate which of its $161,294.00 assets are current assets, and also, demonstrate petitioner's 
current liabilities. 
Page 5 
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 met that burden. 
ORDER: The appeal is dismissed.