dismissed EB-3 Case: Restaurant

identifying datr aeieted to 
prevent dearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
* 
5 
-%P , 
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FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 05 195 51741 
 MAY 0 9 2006 
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. 5 1153(b)(3) 
ON BEHALF OF PETITIONER: 
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. 
~dbert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Texas 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, the petitioner submits a brief and additional evidence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 
February 5, 2004. The proffered wage as stated on the Form ETA 750 is $1,500 per month, which equals 
$18,000 per year. 
On the petition, the petitioner stated that it was established during 1986 and that it employs 30 workers. The 
petition states that the petitioner's gross annual income is $1 million. The space on the petition reserved for 
the petitioner to report its net annual income was left blank. On the Form ETA 750, Part B, signed by the 
beneficiary on January 15, 2004, the beneficiary did not claim to have worked for the petitioner.' Both the 
petition and the Form ETA 750 indicate that the petitioner will employ the beneficiary in Nashville, 
Tennessee. 
' The instructions to that form request that the beneficiary "List all jobs held during the last three (3) years (and) any 
other jobs related to [the proffered position]." By signing that form the beneficiary indicated that he had not previously 
held any job with the petitioner within three years prior to January 15, 2004 and had never held a job with the petitioner 
related to the proffered position. The petitioner subsequently submitted Form W-2 Wage and Tax Statements, however, 
that show that the petitioner employed the beneficiary during 2002 and 2003. The petitioner has made no attempt to 
address this discrepancy between the beneficiary's employment claim and the evidence submitted. 
In support of the petition, the petitioner submitted (1) the petitioner's 2003 Form 1120, U.S. Corporation 
Income Tax Return, (2) copies of its Form 941 Employer's Quarterly Federal Tax Returns for all four quarters 
of 2004, (3) copies of 2003 Form W-2 Wage and Tax Statements showing wages it paid to its employees 
during that year, and (4) a letter from the petitioner's owner dated June 28,2005. 
The petitioner's 2003 tax return shows that the petitioner is a corporation, that it incorporated on November 
13, 1985, and that it reports taxes pursuant to a fiscal year running from November 1 of the nominal year to 
October 3 1 of the following year. 
That return further shows that during its 2003 fiscal year the petitioner declared a loss of $109,114 as its 
taxable income before net operating loss deductions and special deductions. The corresponding Schedule L 
shows that at the end of that year the petitioner's current liabilities exceeded its current assets. 
One of the W-2 forms submitted shows that the petitioner paid the beneficiary wages of $8,713.09 for 
employment during 2003. 
In his June 28, 2005 letter the petitioner's owner states "The main issue underlying ability to pay is whether 
the petitioner is a real company that engages in business, produces income, and employs workers." The 
petitioner's owner cited a May 4, 2004 memorandum from the CIS Associate Director for Operations for that 
proposition. The petitioner's owner cited that same memorandum for the proposition that a petitioner has 
affirmatively demonstrated ability to pay the proffered wage when it demonstrates (1) that its net income is 
greater than the proffered wage, (2) that its net current assets are greater than the proffered wage, or (3) that it 
has been paying the proffered wage to the beneficiary. Although the petitioner is obliged to satisfy only one 
prong of that test, the petitioner's owner asserts that the evidence submitted satisfies all three prongs. 
The petitioner's owner also cites the petitioner's gross receipts, its total wage and salary expense, its 
compensation of officers, and its total assets2 as indices of the petitioner's ability to pay the proffered wage. 
Because the evidence submitted was insufficient to demonstrate the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date, the Texas Service Center, on September 6, 2005, requested, 
inter alia, additional evidence pertinent to that ability. Consistent with 8 C.F.R. 5 204.5(g)(2), the service 
center instructed the petitioner to demonstrate its continuing ability to pay the proffered wage beginning on 
the priority date using annual reports, federal tax returns, or audited financial statements. The service center 
also specifically requested a copy of the petitioner's 2004 tax return and, if it employed the beneficiary during 
2004, a copy of the W-2 form showing the wages it paid to the beneficiary during that year. 
In response, the petitioner submitted (1) copies of the petitioner's Form 941 Employer's Quarterly Federal 
Tax Returns for the first three quarters of 2005, (2) copies of the petitioner's 2001 and 2002 W-2 forms, (3) a 
letter, dated May 3, 2005, from the petitioner's accountant, (4) a copy of a recent immigrant worker petition 
filed by the petitioner, and (5) a letter, dated November 17,2005. 
2 
 The petitioner's owner appears to be equating total assets with net current assets. The distinction is explained in detail 
below. 
Page 4 
The 2001 W-2 forms do not show that the petitioner employed the beneficiary during that year. One of the 
2002 W-2 forms shows that the petitioner paid the beneficiary $3,983.36 during that year.3 
The accountant's letter states that the petitioner has always made its payroll payments. The accountant 
further urges that the petitioner's ability to pay the proffered wage should be determined with reference to its 
"recalculated profit," which the accountant calculates by adding the petitioner's profit or loss during a given 
year together with the amount of its depreciation deduction and its officer compensation. Finally, the 
accountant states that the petitioner regularly employs approximately 22 employees. 
The November 17, 2005 letter again cites the Associate Director's May 4, 2004 memorandum for the same 
propositions for which it was previously cited. The letter again cites the petitioner's gross receipts, total 
wages, and total assets as evidence of the petitioner's ability to pay the proffered wage. As to the petitioner's 
2004 tax return, for the fiscal year ending October 3 1, 2005, the letter observed that the petitioner would not 
file that return until the fall of 2005. 
That letter also cites the petitioner's accountant's letter as evidence of its ability to pay the proffered wage. 
The November 17, 2003 letter states that the petitioner employs over 30  worker^.^ Finally, that letter notes 
that CIS has recently approved three other immigrant petitions. The petitioner provided a copy of a recent 
immigrant petition signed by the petitioner's owner on October 14, 2003. 
The petitioner did not provide a copy of the beneficiary's 2004 W-2 form, as requested.5 
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 January 27,2006, denied the petition. 
On appeal, the petitioner submits a Form I-290B appeal that states, "[CIS] erroneously concluded that [the 
petitioner] lacks the ability to pay," and continues, "[CIS] applied an erroneous standard of proof." 
In stating that CIS found that the petitioner is unable to pay the proffered wage the petitioner has evinced a 
misunderstanding of the burden of proof. The service center did not find that the petitioner is unable to pay 
the proffered wage. Rather, the service center found that the petitioner has not submitted evidence sufficient 
to sustain its burden of demonstrating affirmatively its continuing ability to pay the proffered wage beginning 
on the priority date.6 
Because the priority date of the petition is February 5, 2004, however, evidence pertinent to the petitioner's ability to 
pay the proffered wage during previous years is not directly relevant to the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date. 
The petitioner did not reconcile this statement with the accountant's statement that the petitioner regularly employs 
approximately 22 workers. 
Although the petitioner reports taxes pursuant to a fiscal year, W-2 forms are issued based on the calendar year. 
6 
 In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See Matter of 
Brantigan, 1 1 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of evidence that the beneficiary 
Page 5 
With the appeal the petitioner submitted (I) a 2005 W-2 form, (2) pay stubs showing wage payments by the 
petitioner to the beneficiary, (3) a copy of the petitioner's Form 941 Employer's Quarterly Federal Tax 
Return for the last quarter of 2005, (4) a Tennessee state form showing total wages paid and the 
corresponding unemployment insurance payments for the last quarter of 2005, and (5) a brief, 
The brief again states that the inquiry into the petitioner's ability to pay the proffered wage is only to establish 
that it is a bona fide company with a bona fide job opening. The brief again cites the previously mentioned 
memorandum from the Associate Director for Operations of CIS as support for that assertion. 
The brief further states that the petitioner has met each of the three prongs of the test enunciated in that 
memorandum, Net Income, Net Current Assets, and Employment of the Beneficiary. The petitioner renews 
the argument that the petitioner's total wage expense is an index of its ability to pay the proffered wage. 
As to net income, the brief states that "acceptable and standard accounting principles support a different 
interpretation of the petitioner's finances that establish [sic] its ability to pay." The brief cites the 
accountant's calculation of "recalculated profit" -- the sum of the petitioner's net profit or loss, its 
depreciation deduction, and its officer compensation -- as support for this assertion. 
Although the brief states that the petitioner's net current assets show its ability to pay the proffered wage, the 
petitioner reported negative net current assets on its 2003 tax returns, the only income tax return submitted. 
The petitioner submits no additional documentation and offers no argument pertinent to the petitioner's net 
current assets. 
As to the issue of whether the petitioner has been paying the beneficiary the proffered wage, the brief states 
that the petitioner has employed the beneficiary since September 2005. The brief further states that the 
beneficiary has been paid $4,800 for four months work, which the brief states equals $1,600 per month, an 
amount greater than the $1,500 per month proffered wage. This office notes that the calculation is flawed. 
The W-2 form does show payment of $4,800 during all of 2005. That amount, if it applies to four months of 
wages, indicates payment of only $1,200 per month, an amount less than the proffered wage. 
The Tennessee state unemployment insurance payment form purports to show that the petitioner paid the 
beneficiary $4,800 during the last quarter of 2005. Because a quarter of a year consists of three months, rather 
than four, that amount corresponds to $1,600 per month. 
The pay stubs provided show that the petitioner paid the beneficiary $6,400 during the last four months of 
2005, an amount which conflicts with information shown on the W-2 form provided. Further, the four pay 
stubs provided show that they cover only four two-week pay periods, corresponding roughly to the last half of 
September, October, November, and December of 2005, and January of 2006, for which pay periods the 
petitioner ostensibly paid the beneficiary gross pay of $1,600 each. This, too, conflicts with the assertions in 
the brief. 
is fully qualified for the benefit sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 
I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965). 
Page 6 
The 2005 W-2 form shows that the petitioner paid the beneficiary only $4,800 during all of that year. The 
pay stubs submitted show that the petitioner paid the beneficiary $6,400 during the last four months of 2005. 
Those amounts cannot be reconciled. 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Further, the petitioner must resolve any 
inconsistencies in the record by independent objective evidence. Attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence sufficient to demonstrate where the truth, in fact, lies, will 
not suffice. Matter of Ho, 19 I&N Dec. 582 (Comm. 1988). Because of the contradiction between the amount 
shown on the 2005 W-2 form and the amounts shown on the 2005 pay stubs all of the evidence in this matter 
must be reevaluated.' 
The brief states that the petition should have been approved, asserting that the petitioner has demonstrated its 
ability to pay the proffered wage based on a preponderance of the e~idence.~ 
The petitioner argues asserts that the main issue underlying ability to pay is whether the petitioner is a real 
company that engages in business, produces income, and employs workers, for which proposition counsel 
cites the May 4, 2004 memorandum. The regulation at 8 C.F.R. 3 204.5(g)(2) requires that the petitioner 
demonstrate its continuing ability to pay the proffered wage beginning on the priority date with copies of 
annual reports, federal tax returns, or audited financial statements. The language of 8 C.F.R. 3 204.5(g)(2), 
does not support the petitioner's assertion. This office does not read the May 4, 2004 memorandum to 
conflict with the requirement in 8 C.F.R. $ 204.5(g)(2) that the petitioner demonstrate its continuing ability to 
pay the proffered wage beginning on the priority date. To the extent that the memorandum may conflict with 
8 C.F.R. 3 204.5(g)(2), however, this office finds the regulations to hold greater authority. 
The brief asserts that the "recalculated profit" is based on "acceptable and standard accounting principles." 
The brief offers no authority in support of that assertion and this ofice is aware of none. 
Assertions in the brief 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 are, therefore, insufficient to sustain the burden of proof. Further, the assertions in the 
petitioner's brief are not binding authority. This office will, therefore, consider the components of the 
accountant's recalculation of the petitioner's profits. 
The "recalculated profits," as defined by the accountant, is the sum of the petitioner's profit or loss, the 
amount of its depreciation deduction, and the amount of its officer compensation. The summation of those 
7 
 Even if the evidence in this matter were consistent, and showed that the petitioner had paid the beneficiary $1,500 or 
more during each of the last four months of 2005, that would not demonstrate the petitioner's continuing ability to pay 
the proffered wage beginning on the priority date. 
8 
 This office concurs that the correct standard of proof is the "preponderance of the evidence" standard. Matter of 
Martinez, 2 1 I&N Dec. 1035, 1036 (BIA 1997); Matter ofPatel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 11 
I&N Dec. 15 1 (BIA 1965). 
Page 7 
figures implies that each is a fund available to the petitioner to pay additional wages. This office agrees that a 
petitioner's net income is available to pay additional wages. 
The assertion that the petitioner's depreciation deduction should be included in the calculation of its ability to 
pay the proffered wage, however, is unconvincing. The petitioner is correct that a depreciation deduction 
does not require or represent a specific cash expenditure during the year claimed. It is a systematic allocation 
of the cost or other basis 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. 
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, 719 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. Although the 
petitioner and the accountant assert that they should not be charged against income according to their 
depreciation schedule, they do not offer any alternative allocation of those costs.9 The petitioner and the 
accountant appear to be asserting that the real cost of long-term tangible assets should never be deducted from 
revenue for the purpose of determining the funds available to the petitioner. Such a scenario is unacceptable. 
Advocating that the petitioner's Form 1120, Line 12, Compensation of Officers be included in the 
calculations pertinent to ability to pay the proffered wage implies that the compensation need not have been 
paid to its officers, but could have been retained by the petitioner to pay the proffered wage. The petitioner 
provides no evidence, however, to support the supposition that its officers were able and willing to forego 
compensation, in whole or in part, to pay the proffered wage. The compensation that the petitioner paid to its 
officers has not, therefore, been shown to be available to pay wages. 
The petitioner further argues that the petitioner's gross receipts and its total wage and salary expense should 
be considered in assessing its ability to pay the proffered wage. 
Showing that the petitioner paid wages in excess of the proffered wage, or greatly in excess of the proffered 
wage, however, is insufficient. Similarly, showing that the petitioner's gross receipts exceeded the proffered 
wage, or greatly exceeded the proffered wage, is insufficient. Unless the petitioner can show that hiring the 
beneficiary would somehow have reduced its expenses1' or otherwise increased its net income," the petitioner 
9 
 The petitioner does not urge, for instance, that the petitioner's purchase of long-term assets should be expensed during 
the year of purchase, rather than depreciated, for the purpose of calculating the petitioner's ability to pay additional 
wages. 
10 
The petitioner might be able to show, for instance, that the beneficiary would replace another named employee, thus 
Page 8 
is obliged to show the ability to pay the proffered wage in addition to the expenses it actually paid during a 
given year. The petitioner is obliged to show that it had sufficient funds remaining to pay the proffered wage 
after all expenses were paid. That remainder is the petitioner's net income. 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 paid rather than net income. 
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 submitted conflicting evidence pertinent to the wages it paid the beneficiary, and 
has not, therefore, established 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. 
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). 
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 the period, if any, do not equal the amount of the proffered wage or more, the AAO will 
review the petitioner's assets as an alternative method of demonstrating the ability to pay the proffered wage. 
The petitioner's total assets, however, 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 petitioner's year-end cash and those assets expected to be consumed 
or converted into cash within 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 paid within a year. CIS will consider the petitioner's net current assets, its current assets net 
of 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 
obviating that other employee's wages, and that those obviated wages would be sufficient to cover the proffered wage. 
I I 
 The petitioner might be able to demonstrate, rather than merely allege, that employing the beneficiary would 
contribute more to the petitioner's revenue than the amount of the proffered wage. 
Page 9 
typically1* 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 $1 8,000 per year. The priority date is February 5,2004. Because the petitioner reports 
taxes pursuant to a fiscal year running from November 1 of the nominal year to October 3 1 of the following 
year its fiscal year 2003 tax return covers approximately eight months after the priority date. 
During its 2003 fiscal year the petitioner declared a loss. The petitioner is unable, therefore, to demonstrate 
the ability to pay any portion of the proffered wage out of its net income. At the end of that fiscal year the 
petitioner had negative net current assets. The petitioner is unable, therefore, to demonstrate the ability to pay 
any portion of the proffered wage out of its net current assets. The petitioner has submitted no other reliable 
evidence of its ability to pay the proffered wage during its fiscal year 2003. The petitioner has not, therefore, 
demonstrated its ability to pay the proffered wage during its fiscal year 2003. 
The petition in this matter was submitted on June 30, 2005. On that date the petitioner's fiscal year 2004 tax 
return was unavailable. The request for evidence in this matter was issued on September 6, 2005. On that 
date the petitioner's fiscal year 2004 tax return remained unavailable. The petitioner is excused, therefore, 
from producing evidence of its finances during its 2004 fiscal year and subsequent fiscal years. 
The petitioner failed to demonstrate that it had the ability to pay the proffered wage during its 2003 fiscal 
year. Therefore, the petitioner has not established that it had the continuing ability to pay the proffered wage 
beginning on the priority date and the petition was correctly denied on this basis. 
The petitioner states that three other immigrant petitions were recently approved based on the same evidence 
and implies that to deny the instant case is, therefore, arbitrary and capricious. This is not a convincing 
argument for approving the instant petition. First, if the previous petitions were approved based on the same 
facts as those in the instant case, as the petitioner states, then they were approved in error. The AAO is not 
bound to approve petitions where eligibility has not been demonstrated merely because of prior approvals that 
may have been erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). CIS need not treat errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987); cert denied 485 U.S. 1008 (1998). 
Furthermore, the authority of AAO over the Service Centers is comparable to the relationship between a court 
of appeals and a district court. The AAO is not, in any event, bound to follow the decisions of the service 
centers. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 E.D. La.), aff'd 248 F.3d 1139 (sth Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Further still, if other petitions are pending or recently approved, the petitioner would be obliged to show the 
ability to pay the proffered wage in addition to the wages due to the other beneficiaries. If, for instance, the 
proffered wage in each of the other three cases relied upon by the petitioner were the same as in the instant 
12 
 The location of the taxpayer's current assets and current liabilities varies slightly from one version of the Schedule L 
to another. 
Page 10 
case, then the petitioner would be obliged to demonstrate the ability to pay $72,000 in new wages, rather than 
only $18,000. 
Thus, even if the petitioner had demonstrated the ability to pay $18,000 in new wages, given the petitioner's 
assertion that three other petitions were recently approved, this office would remand the instant case for 
evidence of the amount of the wages proffered in the other two cases, and of the petitioner's continuing 
ability to pay the aggregated proffered wages of all three beneficiaries beginning on the priority date of the 
instant petition. Because the petitioner has failed to show the ability to pay the proffered wage of even this 
single beneficiary, however, no such remand is necessary. 
The burden of proof in these proceedings rests solely upon 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.