dismissed EB-3 Case: Restaurant

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: 
 EAC 04 143 52034 Office: VERMONT SERVICE CENTER 
 Date: P(On 1 3 
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. 9 1 153(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. 
&d 
$ Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 04 143 52034 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the preference visa petition that is now before 
the Administrative Appeals Office 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 cook. 
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. 
On appeal counsel submitted a statement. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3)(A)(i), 
provides for granting 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'at 8 C.F.R. $ 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, the day 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. $ 204.5(d). Here, the Form ETA 750 was accepted for processing on 
April 13, 2001. The proffered wage as stated on the Form ETA 750 is $18.89 per hour for a 35-hour week, 
which equals $34,379.80 per year.' 
The Form 1-140 petition in this matter was submitted on April 10, 2004. On the petition, the petitioner stated 
that it was established during October 1970 and that it employs five workers. The petition states that the 
petitioner's gross annual income is $250,000. The space reserved for the petitioner to report its net annual 
income was left blank. The Form ETA 750, Part B work history, signed by the beneficiary on April 6, 2001, 
lists the petitioner as an employer. In the spaces reserved to state the beginning and ending dates of that 
employment "Upon Approval" was entered. Both the petition and the Form ETA 750 indicate that the 
petitioner would employ the beneficiary in Katonah, New York. 
In support of the petition, counsel submitted (1) a copy of the petitioner's 2001 Form 1120, U.S. Corporation 
Income Tax Return, and (2) a copy of portions of the joint 2001 Form 1040 U.S. Individual Income Tax 
1 
 The director erred in his April 8,2005 denial and calculated the annual proffered wage to be $39,291.20. 
EAC 04 143 52034 
Page 3 
Return and 2001 Form 1040X Amended U.S. Individual Income Tax Return of the beneficiary and his 
spouse, and (3) a copy of the petitioner's 2002 Form 1120, U.S. Corporation Income Tax Return. 
The petitioner's tax returns show that the petitioner is a corporation, that it incorporated on October 1, 1970, 
and that it reports taxes pursuant to accrual convention accounting and a fiscal year running from October 1 of 
the nominal year to September 30 of the following year. 
During its 2001 fiscal year, which ran from October 1, 2001 to September 30, 2002, the petitioner declared 
taxable income before net operating loss deductions and special deductions of $5,791. At the end of that year 
the petitioner had current assets of.$10,286 and current liabilities of $5,907, which yields net current assets of 
$4,379. 
During its 2002 fiscal year, which ran from October 1, 2002 to September 30, 2003, the petitioner declared a 
loss of $4,396 as its taxable income before net operating loss deduction and special deductions. At the end of 
that year the petitioner had current assets of $9,492 an current liabilities of $9,509, which yields net current 
assets of -$17. 
Because the evidence submitted was insufficient to demonstrate the petitioner's continuing ability to pay the 
proffered wage'beginning on the priority date, the Vermont Service Center, on October 14, 2004, requested, 
inter alia, additional evidence pertinent to that ability. The service center also specifically requested that, if 
- 
 the petitioner employed the beneficiary during 2001, it provide the Form W-2 Wage and Tax Statement 
showing the wages it paid to him. 
In response, counsel submitted a letter dated January 6, 2005 from the petitioner's accountant. Counsel 
 j 
submitted no W-2 forms and did not explain their absence. 
The petitioner's accountant's letter cites the market value of the petitioner's total assets and its total payroll 
expense as evidence of its continuing ability to pay the proffered wage beginning on the priority date. The 
accountant also stated that more then three-fourths of the wages the petitioner paid were paid to its officers, 
who also cook, and to kitchen help. Finally, the accountant stated that both of the owner-officers of the 
restaurant have expressed the wish to decrease the hours they work at the restaurant and plan to take a 50% 
cut in their wages in exchange. 
The director determined that the evidence submitted did not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date and, on April 8,2005, denied the petition. 
On appeal, counsel stated, 
The beneficiary, self-employed, earned $19,600 as a cook in 2004. This is reflected by 
Schedule C (Net Profit from Business) previously submitted along with a copy of the 
beneficiary's taxes. While true that the beneficiary does not have a W-2 Wage and Income 
Statement from the prospective employer (the petitioner) the explanation is that the proposed 
beneficiary is self-employed. The ETA 750 Application (Part B) further reflects that the 
beneficiary has worked for the petitioner Katonah Restaurant from 1994 to the present. The 
EAC 04 143 52034 
Page 4 
wage offered is $17.43 per hour. Given these circumstances, the prospective petitioner has 
shown sufficient ability to pay the proffered wage. 
I 
The proffered wage in this case is not, as counsel states, $17.43 per hour. The Form ETA 750 submitted 
states that the proffered wage is $18.89 per hour. 
 , 
The Form ETA 750 does not, as counsel asserts, support the proposition that the petitioner has employed the 
beneficiary since 1994. Rather, the employment history to which the beneficiary attested states that the 
petitioner will employ the beneficiary upon approval of the petition, and had not ever employed the 
beneficiary as of April 6,2001. 
i 
Although counsel's assertions are not entirely clear, he appears to be asserting that the beneficiary has worked 
for the petitioner since 1994 as a contractor, rather than an employee. While this would explain the absence 
of W-2 forms, it does not explain why no Form 1099 Miscellaneous Income statement or other evidence of 
that alleged employment was submitted. 
The assertions of counsel are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980); 
Unsupported assertions of counsel are, therefore, insufficient to sustain the burden of proof. Counsel's 
statement that the beneficiary worked for the petitioner, absent any evidence in its support, is insufficient to 
establish that asserted fact. 
Counsel also stated that the previous submissions included a 2004 Schedule C showing self-employment of 
the beneficiary and that he earned $19;600 during that year. In fact, the record contains no tax forms pertinent 
to 2004. The only tax documents pertinent to the beneficiary are the 2001 Form 1040 U.S. Individual Income 
Tax Return and Form 1040X Amended U.S. Individual Income Tax Return de'scribed above. The Form 
1040X amended return indicates, at Part IV, that a Schedule C-EZ was included when that amended form was 
filed. However, that schedule was nkver placed into the record. 
Line 12 of the corrected Form 1040 U.S. Individual Income Tax Return does show that the beneficiary 
received business income of $10,150 during 2001. The nature of that business, however, and whether it 
pertained in any way to the petitioner, is unknown to this office. The beneficiary's income from self- 
employment will not be considered a fund available to the petitioner to pay additional wages. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will examine 
whether the petitioner employed 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 petitioner did not establish that it employed and paid 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 a given period, the AAO will, in addition, examine the net income figure reflected on 
the petitioner's federal income tax return, without consideration of depreciation or other expenses. CIS may 
rely on federal income tax returns to assess a petitioner's ability to pay a proffered wage. Elatos Restaurant 
Corp. v. Sava, 632 F.Supp. 1049, 1054 (S.D.N.Y.> 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
EAC 04 143 52034 
Page 5 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. 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), affd, 703 F.2d 571 (7th Cir. 1983). See also 8 C.F.R. 5 204.5(g)(2). 
Showing that the petitioner's gross receipts exceeded the proffered wage, or greatly exceeded it, is 
insuff~ient. Similarly, showing that the petitioner paid total wages in excess of the proffered wage, or greatly 
in excess of the proffered wage is, contrary to counsel's assertions, 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 CIS should have 
considered income before expenses were pald 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 at 
537. See also Elatos Restaurant, 623 F. Supp. at 1054. 
The petitioner's net income is not the only statistic that may be used to show the petitioner's ability to pay the 
proffered wage. If the petitioner's net income, if any, during a given period, added to the wages paid to the 
beneficiary during that period, if any, do not equal the amount of the proffered wage or more, the AAO will 
review the petitloner's assets as an alternative method of demonstrating the abllity to pay the proffered wage. , 
Contrary to counsel's assertions, however, the petitioner's total assets are not available to pay the proffered 
wage. The petitioner's total assets include those assets the petitioner uses in its business, which will not, in 
the ordinary course of business, be converted to cash, and will not, therefore, become funds available to pay 
the proffered wage. Only the petitioner's current assets -- the petitloner's year-end cash and those assets 
expected to be consumed or converted into cash withln a year -- may be considered. Further, the petitioner's 
current assets cannot be viewed as available to pay wages without reference to the petitioner's current 
liabilities, those liabilities projected to be pald within a year. CIS will consider the petitioner's net current 
assets, its current assets minus its current liabilities, in the determination of the petitioner's ability to pay the 
proffered wage. 
Current assets include cash on hand, inventories, and receivables expected to be converted to cash or cash 
equivalent within one year. Current liabilities are liabilities due to be paid within a year. On a Schedule L the 
petitioner's current assets are typically found at lines l(d) through 6(d). Year-end current liabilities are 
typically2 shown on lines 16(d) through 18(d). 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. 
The proffered wage is $34,379.80 per year. The priority date is April 13,2001. 
The petitioner's 2001 fiscal year began on October 1, 2001. The petitioner submitted no evidence of its 
ability to pay the proffered wage prior to that. The petitioner has not demonstrated its ability to pay the 
proffered wage from Aprll 13, 200 1 to October 1,2001. 
During its 2001 fiscal year, which ran from October 1, 2001 to September 30, 2002, the petitioner declared 
taxable income before net operating loss deductions and special deductions of $5,791. That amount is 
insufficient to pay the proffered wage. At the end of that year the petitioner had net current assets of $4,379. 
The location of the taxpayer's current assets and current liabilities varies slightly from one version of the Schedule L to 
another. 
EAC 04 143 52034 
Page 6 I 
That amount is also insufficient to pay the proffered wage. The petitioner has submitted no reliable evidence 
of any other fuids available to it during that fiscal year with which it could have paid the proffered wage. 
The petitioner has not demonstrated its ability to pay the proffered wage during its 2001 fiscal year. 
During its 2002 fiscal year, 'which ran from October 1, 2002 to September 30, 2003, the petitioner declared 
taxable income (loss) before net operating loss deductions and special deductions of ($4,396). That amount is 
not sufficient to pay the proffered wage. At the end of that year the petitioner had net current assets 
(liabilities) of ($17). That amount is insufficient to pay the proffered wage. The petitioner has submitted no 
reliable ev~dence of any other funds available to it during that fiscal year with which it could have paid the 
proffered wage. The petitioner has not demonstrated its ab'ility to pay the proffered wage during its 2002 
fiscal year. 
Because the petitioner's 2003 fiscal year ended on September 30, 2004 and the request for evidence was 
issued on October 14, 2004 that tax return may then have been unavailable. The petitionei is excused, 
therefore, from demonstrating its ability to pay the proffered wage during its 2003 fiscg year and subsequent 
fiscal years. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during the period from 
April 13, 2001 to October 1, 2001, during its 2001 fiscal year, and during its 2002 fiscal year. Therefore, the 
pet~tioner has not established that it had the continuing ability to pay the proffered wage beginning on the 
priority date. 
Reliance on any undocumented assertions that the beneficiary would be assuming a portion of the officers' duties 
or those of other employees at the petitioner's company, and that, as such, a portion of these mdividuals' 
compensation should be considered funds available to pay the proffered wage are misplaced. The petitioner 
failed to provide any Form W-2, Wage and Tax Statement, or other documentation to identify the employees 
or officei-s whose workload woutd be reduced or to verify what salary the petitioner paid these other workers 
from the priority date onwards. Also, there is no notarized, sworn statement from the petitioner in the record 
which attests to the claim that the beneficiary will in part replace these other workers and the precise 
percentage of the~r duties that he would assume. In addition, there is no ev~dence in the record that these 
officers and employees performed the duties of the proffered position. Going on record without supporting 
documentary evidence is not sufficient for pu?poses 0.f 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 California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.C. 
1361.   he petitioner has not met that burden. 
ORDER: The appeal is dismissed.