dismissed EB-3 Case: Restaurant

identifying data deleted to 
prevent ddy unwarmw 
invasion of pe'~~"% privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
46 
IN RE: 
PETITION: 
 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. 5 1153(b)(3) 
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, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Indian vegetarian restaurant. It seeks to employ the beneficiary permanently in the United 
States as a chef. 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. 
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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's December 13, 2004 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. 3 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 or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
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 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 April 30, 2001. The proffered wage as stated on the Form ETA 750 is $16.38 per hour, which 
amounts to $34,070.40 annually.' 
I 
 The proffered wage, as calculated, is based on the assumption that the beneficiary is employed for 40 hours per week 
and for 52 weeks. No evidence in the record contradicts this assumption, and the Form ETA 750 corroborates that the 
beneficiary is to be employed for at least 40 hours per week. In addition, a letter from counsel dated December 8, 2004 
Page 3 
The AAO takes a de novo look at issues raised in the denial of this 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 pertinent 
evidence in the record, including new evidence properly submitted upon appeal2. No new evidence was 
submitted on appeal. Relevant evidence in the record includes copies of the petitioner's Form 1120 U.S. 
Corporation Income Tax Returns for 2002 and 2003, copies of the petitioner's Form 941 Employer's Quarterly 
Federal Tax Returns, a copy of the beneficiary's Form W-2 Tax and Wage Statement for 2003, copies of checks 
from the petitioner to the beneficiary, copies of the beneficiary's bank statements, copies of the petitioner's bank 
statements, a copy of a letter from the petitioner dated April 12, 2003, and a copy of a letter from counsel dated 
December 8, 2004. The record does not contain any other evidence relevant to the petitioner's ability to pay the 
wage. 
Counsel states on appeal that "financial documents, bank statements and W-2s show that the petitioner has 
sufficient funds." Counsel also states that the director erred in looking at the beneficiary's net pay instead of the 
beneficiary's gross pay, wages paid to the beneficiary in 2003 combined with the petitioner's net income exceed 
the proffered wage, and wages paid to other employees should be considered. 
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. Cornrn. 1977). See also 8 C.F.R. 5 204.5(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 Sonegawa, 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 April 26,2001, the beneficiary did not claim to 
have worked for the petitioner. 
The record, however, does contain a copy of the beneficiary's Form W-2 Wage and Tax Statement for 2003 that 
shows compensation received from the petitioner. The record also contains copies of 17 checks that the petitioner 
wrote to the beneficiary from February 10, 2004 to September 21, 2004. Each check shows the beneficiary 
receiving $1064.98, and each check has writing indicating that $265.42 is subtracted from the gross pay or that 
$13 10.40 is the gross pay. Compensations from the petitioner to the beneficiary are shown in the table below. 
states that the proffered wage is $34,070.40. Thus, both the director in her denial and counsel on appeal erred in stating 
that the proffered wage is $3 1,449.60. 
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 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2003 and 
2004. 
Counsel states that on appeal that the director erred in using the net amount on the checks instead of the gross 
amount, and "[wlith 26 pay periods in a year, the [beneficiary's] gross pay per year is actually $34,060.00." 
If the beneficiary receives $1310.40 every two weeks, she would receive $34,070.40 per year, not $34,060.00. 
The AAO does look at the gross pay in determining wages paid to the beneficiary and based on the evidence 
in the record, the petitioner paid the beneficiary $22,276.80 in 2004. This amount is less than the proffered 
wage, and those checks are not enough to show that the beneficiary would receive the proffered wage in 2004 
because nothing in the record indicates that the beneficiary was paid or how much the beneficiary was paid 
before February 10,2004 and after September 21,2004. 
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 Cop. 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), affd., 703 F.2d 571 (7h Cir. 1983). In K.C.P. Food Co., Znc., 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 
paid rather than net income. 
The evidence indicates that the petitioner is a c~rporation.~ The record contains copies of the petitioner's Form 
1120 U.S. Corporation Income Tax Returns for 2002 and 2003. The record before the director closed on 
December 10, 2004 with the receipt by the diitor of the petitioner's submissions in response to the request for 
evidence (RFE). As of that date the petitioner's federal tax return for 2004 was not yet due. Therefore the 
petitioner's tax return for 2003 is the most recent return available. The priority date is April 30, 2001, and the 
petitioner has to establish its ability to pay the proffered wage as of the priority date. A copy of the petitioner's 
Form 1120 U.S. Corporation Income Tax Return for 2001 does not appear in the record. 
For a corporation, CIS considers net income to be the figure shown on line 28, taxable income before net 
operating loss deduction and special deductions, of the Form 1120 U.S. Corporation Income Tax Return, or the 
equivalent figure on line 24 of the Form 1120-A U.S. Corporation Short Form Tax Return. The petitioner's tax 
returns show the amounts for taxable income on line 28 as shown in the table below. 
The director erred in stating that the petitioner submitted "2002 and 2003 1120 S tax return for an S Corporation." 
Page 5 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
200 1 No Information $34,070.40* No Information 
2002 $29,211 .OO $34,070.40* -$4,859.40 
2003 $18,735.00 $19,656.00"" $921.00 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001 and 2002. 
** Crediting the petitioner with the compensation actually paid to the 
beneficiary in 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002, and 2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, 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 
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 End of year to pay the proffered wage 
200 1 No Information $34,070.40" 
2002 -$178,164.00 $34,070.40* 
2003 -$101,588.00 $19,656.00** 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2001 and 2002. 
** Crediting the petitioner with the compensation actually paid to the beneficiary in 
2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2001, 
2002. and 2003. 
Counsel states on appeal that with the wages the beneficiary received in 2003 and the petitioner's net income in 
2003, "the employer could have paid the employe[e] as much as $33,149.40 in 2003 which again exceeds the 
required salary of $31,449.60." The proffered wage is $34,070.40, and as stated above, the combination of the 
wages the beneficiary received in 2003 and the petitioner's net income is $33,149.40. $33,149.40 is $921.00 less 
than the proffered wage. 
Counsel also states that "the employer had a net income of $29,211.00 [in 20021" and "someone else was cooking 
for the employer in 2001 and wages were paid to that person. The employer need only use $2,238.60 of the 
wages paid to others in 2001 to pay the alien in 2001." Since the record does not contain any information 
regarding the petitioner's financial status in 2001, it appears that counsel is referring to 2002, not 2001. In 2002, 
the wage increase needed to pay the proffered wage after taking into consideration the petitioner's net income is 
$4,859.40, not $2,238.60. 
Counsel is advising that wages paid to another worker in 2002 can be used in determining the petitioner's ability 
to pay the proffered wage in 2002. The record does not, however, name the worker, state his or her wage, verify 
his or her full-time employment, or provide evidence that the petitioner has replaced or will replace the worker 
with the beneficiary. In general, wages already paid to others are not available to prove the ability to pay the 
proffered wage to the beneficiary. Moreover, there is no evidence that the position of the other worker involves 
the same duties as those set forth in the Form ETA 750. If that employee performed other kinds of work, then the 
beneficiary could not have replaced him or her. 
The record contains copies of the petitioner's Form 941 Employer's Quarterly Federal Tax Returns. In a letter 
from counsel dated December 8, 2004, counsel states that "[als proof of [the beneficiary's employment by the 
petitioner], we enclose a copy of the employer[']s Form 941 for 2003 3* quarter, 2003 4" quarter, 2004 1'' 
quarter, 2004 2nd quarter, and 2004 3* quarter." Those forms show the total amount the petitioner paid in wages 
and the petitioner's federal tax liabilities for each quarter. However, they do not show which workers were paid 
and how much the petitioner paid each worker. Thus, the petitioner's Form 941s are irrelevant in determining the 
petitioner's ability to pay the proffered wage to the beneficiary. 
The record contains copies of the beneficiary's bank statements. These statements are irrelevant because the issue 
at hand is whether the petitioner has the financial ability to pay the proffered wage. The beneficiary's financial 
status is irrelevant. 
The record also contains copies of the petitioner's bank statements. The letter from counsel dated December 8, 
2004 states that "the employer has maintained a cash bank balance of approximately $10,000.00 since 2003" and 
"[tlhese additional sums are sufficient support for the employer's ability to pay the proffered wage." Counsel's 
reliance on the balances in the petitioner's bank accounts is misplaced. First, bank statements are not among 
the three types of evidence, enumerated in 8 C.F.R. 5 204.5(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. 3 204.5(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 has been considered above in determining the petitioner's net 
Page 7 
current assets. In addition, contrary to counsel's assertion that the petitioner has maintained a cash balance of 
approximately $10,000.00 since 2003, the petitioner's balances from October to December 2003 and from 
February to April 2004 are well below $10,000.00.~ 
Counsel's letter dated December 8,2004 states that depreciation "is not a cash expense to the company but rather 
an accounting deduction in favor of businesses under the tax code" and thus should be included in the calculation 
of the petitioner's cash net income. 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 Carp., 632 F. Supp. at 1054. 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 jgures 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.) 719 F.Supp. at 537. 
The record contains a letter from the petitioner's president dated April 12, 2003 stating that the petitioner "is in 
sound financial order and had sufficient funds to support the wage offered." Documentary evidence in the 
record, as discussed above, does not suggest that the petitioner has sufficient funds as of the priority date. 
After a review of the evidence, it is concluded that the petitioner has not established its ability to pay the salary 
offered as of the priority date of the petition and continuing until the beneficiary obtains lawful permanent 
residence. 
The director erred in only requesting evidence for 2002, 2003, and 2004 in the RFE dated October 4, 2004 
and in only discussing the petitioner's ability to pay the proffered wage in 2002,2003, and 2004 in her denial. 
The priority date in this case is April 30, 2001, and the director should have requested that the petitioner 
submit evidence showing its ability to pay in 2001 and discussed the petitioner's ability to pay in 2001. The 
director also erred in using the wrong proffered wage and in categorizing the petitioner as an S Corporation. 
Nevertheless, the decision of the director to deny the petition was correct because based on the evidence 
before the director, the petitioner fails to show its ability to pay the proffered wage in 2002,2003, and 2004. 
For the reasons discussed above, the assertions of counsel 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. 
4 
 According to the petitioner's bank statements from South Trust Bank, the petitioner had a balance of $6,155.43 in 
October 2003, $5,567.13 in November 2003, and $5,337.78 in December 2003. According to the petitioner's bank 
statements from Charter Bank, the petitioner had a balance of $7,113.01 in February 2004, $5,187.58 in March 2004, and 
$4,645.91 in April 2004.