dismissed EB-3 Case: Restaurant

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
6s 
IN RE: 
PETITION: 
 Immigrant Petition for Other Worker Pursuant to 5 203(b)(3) of the Immigration and 
Nationality Act, 8 U.S.C. 1 1 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. 
kobert 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 a restaurant. It seeks to employ the beneficiary permanently in the United States as a wait 
staff. As required by statute, a Form ETA 9089, Application for Permanent 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. The director 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 January 6, 2006 denial, the only 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)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. €j 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. €j 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. 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 priority 
date, which is the date the Form ETA 9089 was accepted for processing by any office within the employment 
system of the Department of Labor. See 8 CFR €j 204.5(d). The priority date in the instant petition is August 
1,2005. The proffered wage as stated on the Form ETA 750 is $13,645 annually. 
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 appeali. Relevant evidence submitted on 
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 
Page 3 
appeal includes counsel's statement, a copy of a letter from 
1 
certified public account (CPA), and the 
front page of the petitioner's 2004 Form 1120, U.S. Corporation ncome Tax Return. Other relevant evidence 
includes a complete copy of the petitioner's 2004 Form 1120, and copies of the petitioner's internet filing 
summary, Texas Employer's Quarterly Report, for the first, second, and fourth quarter of 2004. Evidence also 
includes a copy of the petitioner's Forms 94 1, Employer's Quarterly Federal Tax Return, for the second and third 
quarter of 2005. The record does not contain any other evidence relevant to the petitioner's ability to pay the 
proffered wage. 
The petitioner's 2004 Form 1120 reflects a taxable income before net operating loss deduction and special 
deductions or net income of -$17,332 and net current assets of $5,883. 
The letter from the petitioner's CPA states that the petitioner has been doing business at its current location since 
1999, that the petitioner's 2004 tax return shows an operating loss of less than one percent of total sales, that 
depreciation and compensation of officers should be added back to the petitioner's net income when determining 
the petitioner's ability to pay the proffered wage, and that the employees in question are currently accounted for 
under salaries and wages. 
On appeal, counsel contends that the petitioner has shown its ability to pay the proffered wage of $13,645 
based on its operating loss of less than one percent of total sales. 
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. 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 Sonegwa, 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 9089K, signed by the beneficiary on November 7, 2005, the beneficiary does 
not claim the petitioner as a past or present employer. However, the petitioner did state on Form ETA 90895 
that the petitioner currently employs the beneficiary. Counsel did not provide any evidence such as Forms W- 
2, Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, issued by the petitioner for the 
beneficiary indicating that the petitioner employed the beneficiary in 2004 or 2005, as verification of the 
statement made in ETA 90895. Therefore, any wages paid to the beneficiary in 2004 by the petitioner cannot 
be considered in determining the petitioner's ability to pay the proffered wage of $13,645. 
As an alternative 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, without 
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). 
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), afd, 703 F.2d 571 (7th Cir. 1983). In K.C.P. Food Co., Inc., the court held that 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 
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 net cash the depreciation expense charged for the year." 
See also Elatos Restaurant Corp., 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 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 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 net current assets in 2004 were $5,883. The petitioner could not have paid the 
proffered wage of $13,645 in 2004 from its net current assets. 
The petitioner's CPA contends that the petitioner has shown its ability to pay the proffered wage when its 
depreciation and compensation of officers is added back to the net income. 
The CPA'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 funds 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. 
2 
 According to Barron 's Dictionary of Accounting Terms 1 17 (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 1 18. 
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, 7 19 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. 
The CPA's assertion that the petitioner's officer's compensation should be added back to its net income is 
without merit. When CIS considers the totality of the circumstances affecting the petitioning business, CIS will 
consider officer's compensation if the petitioner can show that its officer's compensation is truly discretionary 
and if the petitioner's officers are able and willing to forego their normal compensation or a portion thereof. 
In the instant case, the petitioner has provided only one tax return which is not enough evidence to determine 
that the officer's compensation is discretionary. In addition, generally, because a corporation is a separate 
and distinct legal entity from its owners and shareholders, the 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 Aphrodire 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. 5 204.5, permits [CIS] to consider the financial resources of individuals or entities who 
have no legal obligation to pay the wage." 
The petitioner's CPA claims that the petitioner has shown its ability to pay the proffered wage since its 2004 
tax return shows an operating loss of less than one percent of total sales. However, the petitioner's CPA has 
not provided any authority or precedent decisions to support the use of percentages of loss in determining the 
petitioner's ability to pay the proffered wage. While 8 C.F.R. 5 103.3(c) provides that precedent decisions of 
CIS are binding on all its employees in the administration of the Act, unpublished decisions are not similarly 
binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 
8 C.F.R. 3 103.9(a). 
The CPA also claims that the employees in question are currently accounted for under salaries and wages. Again, 
the petitioner has not submitted any evidence of the beneficiary's employment other than noting that the 
beneficiary is currently employed under ETA 90895. 
Finally, CIS may consider the overall magnitude of the entity's business activities. Even when the petitioner 
shows insufficient net income or net current assets, CIS may consider the totality of the circumstances 
concerning a petitioner's financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 
1967). In Matter of Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had 
been filed by a small "custom dress and boutique shop" on behalf of a clothes designer. The district director 
denied the petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess 
of the employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered 
an array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In this case, although the petitioner has been in business for 
seven years, it has provided tax returns only for the year 2004, which is not enough evidence to establish that 
the business has met all of its obligations in the past or to establish its historical growth. In addition, the 
petitioner has not established its ability to pay the proffered wage of $13,645 in 2004 from either its net 
income or its net current assets. There is also no evidence of the petitioner's reputation throughout the 
industry. 
The petitioner's 2004 tax return reflects a taxable income before net operating loss deduction and special 
deductions or net income of -$17,332 and net current assets of $5,883. The petitioner could not have paid the 
proffered wage of $13,645 from either its net income or its net current assets in 2004. 
In addition, the petitioner has filed other Immigrant Petitions for Alien Workers (Forms 1-140) for additional 
workers, using the same priority date reflected on the Form ETA 750 or subsequent priority dates. Therefore, the 
petitioner must show that it had sufficient income to pay all the wages at the priority date using the same priority 
date as this petition, and then it must show that it had sufficient income to pay all the wages at the subsequent 
priority dates. 
After a review of the record, 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 decision of the director to deny the petition was appropriate based on the evidence in the 
record before the director. 
For the reasons discussed above, the assertions of the petitioner on appeal and the evidence submitted on 
appeal fail to overcome the decision of the director. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.