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 
41 
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. $ 1153(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. 
~obert 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 (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 cook. As 
required by statute, a Form ETA 750, Application for Alien Employment Certification approved by the 
Department of Labor (DOL), 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 submits additional evidence and asserts that the petitioner has had the continuing financial 
ability to pay the proffered salary. 
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 nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. fj 204.5(g)(2) provides: 
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 profifloss 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, 
the day the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 CFR 3 204.5(d). Here, the Form ETA 750 was accepted for processing on April 30, 
2001. The proffered wage as stated on the Fonn ETA 750 is $12.00 per hour, which amounts to $24,960 per 
annum. On the ETA 750B, which the beneficiary signed on April 18, 2001, he claims that he worked for the 
beneficiary since January 200 1. 
On Part 5 of the visa petition, which was filed on May 28, 2003, the petitioner claims to have been established in 
1988, to currently employ eight workers, and to have a gross annual income of $683,250. In support of its ability 
to pay the beneficiary's proposed wage offer of $24,960 per year, the petitioner initially submitted a copy of its 
Page 3 
Form 1120S, U.S. Income Tax Return for an S Corporation for 2001. It reflects that the petitioner files its federal 
tax returns using a standard calendar year. It contains the following information: 
Ordinary Income' $ 2,036 
Current Assets (Sched. L) $ 13,610 
Current Liabilities (Sched. L) $ 7,735 
Net current assets $ 5,875 
As noted above, net current assets are the difference between the petitioner's current assets and current liabilities 
and represent a measure of a petitioner's liquidity during a given period.2 Besides net income, and as an 
alternative method of reviewing a petitioner's ability to pay the proffered wage, CIS will examine a petitioner's 
net current assets as a possible readily available resource out of which a proffered wage may be paid. A 
corporation's year-end current assets and current liabilities are shown on Schedule L of a corporate tax return. 
Current assets are found on line@) l(d) through 6(d) and current liabilities are specified on line(s) 16(d) through 
18(d). If a corporation's year-end 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. 
also provided a letter, dated April 5, 2003, From its ownerimanager, 
 Mr. 
ates that the petitioner employed the beneficiary full-time from January 2001 to July 2001. He does 
not mention the beneficiary's salary. 
The director requested additional evidence on April 9, 2004. Pertinent to the petitioner's ability to pay the 
proposed wage offer of $24,960, the director instructed the petitioner to submit additional evidence to establish 
that it had the continuing financial ability to pay the proffered wage as of the priority date and continuing until the 
present. The director also requested that the petitioner provide copies of the beneficiary's 2001 Wage and Tax 
Statement (W-2) showing how much was paid to the beneficiary. 
In response, the petitioner, through counsel, provided another copy of the petitioner's 2001 corporate tax return. 
The petitioner also submitted copies of payroll records for 2004 showing that the petitioner was employing the 
beneficiary at the certified hourly wage between March and June 2004. The most recent record shows that the 
beneficiary's year-to-date wages as of June 15, 2004, were $6,720. Finally, the petitioner provided a letter, dated 
July 2, 2004, from an assistant branch manager at the Burke and Herbert Bank & Trust Company. The letter 
referenced another corporation's savings account, 
 balance of 
approximately $15 1,000. The authorized signers are 
1 
 For the purpose of this review, ordinary income will be treated as net income. 
2 
 According to Barron 's Dictionaly 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 118. 
Page 4 
On November 22, 2004, the director denied the petition. She noted that the petitioner's ordinary income and net 
current assets as shown on its 2001 corporate tax return was inadequate to cover the proposed wage offer of 
$24,960. She further determined that although the evidence showed that the beneficiary was employed at the 
proffered hourly wage during 2004, no evidence had been submitted showing his earnings in any other years, 
including 2001. The director declined to include the savings account of a separate corporation as part of the 
petitioner's ability to pay the proffered wage. 
On appeal, counsel submits a copy of ~r.individua1 income tax return for 2001, and another letter, 
dated, December 9, 2004, from the Burke & Herbert Bank &Trust Company attesting to the balance in Mr. 
s checking account. 
Counsel cites the petitioner's reasonable expectations of increased profits pursuant to Matter of Sonegawa, 12 
I&N Dec. 612 (Reg. Comm. 1967), as justifying approval of the petition, citing the beneficiary's training in 
Peruvian cuisine. He also relies on four AAO cases from 1994, 1995, and 2003, in which the ability to pay the 
proffered wage had been demonstrated under varying circumstances. We do not find these arguments persuasive. 
The AAO notes that the Department of Labor's function in determining whether the hiring of an alien for a 
certified position will adversely affect the wages and working conditions of similarly employed domestic U.S. 
workers does not impact the jurisdiction of CIS to review whether the petitioner is making a realistic job offer and 
by evaluating the qualifications of a beneficiary for the job CIS is empowered to make a de novo determination 
of whether the alien beneficiary is qualified to fill the certified job and receive entitlement to third preference 
status. See Tongatapu Woodcraft Hawaii, Ltd. v. INS, 736 F.2d 1305, 1308 (9* Cir. 1984). Part of this authority 
includes the right to inquire into whether the employer is able to pay the alien beneficiary's wages. Ubeda v. 
Palmer, 539 F. Supp. 647 (N.D. 111. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
With regard to the reliance on prior AAO cases, it is noted that each petition filing is a separate proceeding with a 
separate record. See 8 C.F.R. 5 103.8(d). Prior decisions may offer guidance in some circumstances, but are not 
considered a binding precedent within the regulation(s) at 8 C.F.R. 5 103.3(c) and 8 C.F.R. 5 103.9(a), which 
provide that decisions designated as precedent decisions must published in bound volumes or as interim decisions. 
In determining a petitioner's ability to pay a proffered wage, CIS reviews whether a petitioner may have 
employed a beneficiary during a given period. If the petitioner establishes by documentary evidence that it may 
have employed the beneficiary at a salary equal to or greater than the proffered wage during a given period, the 
evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. To the extent 
that the petitioner paid wages less than the proffered salary, those amounts will be considered in calculating the 
petitioner's ability to pay the proffered wage. If any shortfall between the actual wages paid by a petitioner to a 
beneficiary and the proffered wage can be covered by either a petitioner's net income or net current assets during 
the given period, the petitioner is deemed to have demonstrated its ability to pay a proffered salary. In this case, 
the record indicates that the petitioner has employed the alien for about six months in 2001 and has employed him 
at the proffered rate during a period of at least four months in 2004. Evidence of wages paid in 2004 has been 
provided, but no documentation of compensation paid in 2001 was offered to the record. 
Page 5 
In this case, pursuant to the regulation at 8 C.F.R. 9 204.5(g)(2), a petitioner must demonstrate its continuing 
ability to pay the proffered wage beginning on the priority date, which in this case is April 30, 2001 .3 Thus, the 
petitioner must show its ability to pay the proffered wage not only in later periods when it is claimed that it 
actually began paying the proffered wage rate, but it must also show its continuing ability to pay the proffered 
wage in 2001, 2002, and 2003. Demonstrating that the petitioner is paying the proffered wage in a specific year 
may suffice to show the petitioner's ability to pay for that year, but the petitioner must still demonstrate its ability 
to pay for the rest of the pertinent period of time. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net taxable income figure reflected on the 
petitioner's federal income tax return, without consideration of depreciation or other expenses. If it equals or 
exceeds the proffered wage, the petitioner is deemed to have established its ability to pay the certified salary 
during the period covered by the tax return. 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. "The [CIS] may 
reasonably rely on net taxable income as reported on the employer's return." Elatos Restaurant Corp. v. Sava, 
632 F. Supp. 1049, 1053 (S.D.N.Y. 1986) ((citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldrnan, supra, and 
Ubeda v. Palmer, supra; see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 536 (N.D. Texas 1989); 
K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985). 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 the Service should have considered 
income before expenses were paid rather than net income. 
If an examination of the petitioner's net taxable income or wages paid to the beneficiary fail to successfully 
demonstrate an ability to pay the proposed wage offer, CIS will review a petitioner's net current assets. 
In this case, the petitioner's corporate tax return for 2001, shows that the petitioner reported net taxable income 
of $2,036, or $22,924 less than the certified wage offer of $24,960. No consideration of compensation received 
from the petitioner in 2001 may be made because such evidence was not provided. It is also noted that no 
federal tax returns, audited financial statements, or annual reports for any other year was provided pursuant to the 
requirements of the regulation at 8 C.F.R. 3 201.5(g)(2). 
Counsel refers the bank letter discussing Mr 
 nd his checking account as the petitioner's. This 
account nor the other business account 
 letter submitted to the underlying record may be 
considered as supporting the petitioner's own financial ability to pay the proffered wage. 
 In this matter, the 
named petitioner on the preference petition is a corporation. A corporation is a separate and distinct legal entity 
fiom its owners and shareholders, consequently, 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. 
3 
If the petition is approved, the priority date is also used in conjunction with the Visa Bulletin issued by the 
Department of State to determine when a beneficiary can apply for adjustment of status or for an immigrant visa 
abroad. Thus, the importance of reviewing the bonafides of a job opportunity as of the priority date, including a 
prospective U.S. employer's ability to pay the proffered wage is clear. 
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) affirmed the rejection of the offer of the petitioner's 
director to personally pay the proffered wage stating "nothing in the governing regulation, 8 C.F.R. $ 204.5, 
permits [CIS] to consider the financial resources of individuals or entities who have no legal obligation to pay the 
wage." It is further noted that a petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Counsel cites Matter of Sonegawa, supra, in claiming that the petitioner's increasing profits support its future 
prospects for success and establishes its ability to pay the proffered wage. In Matter of Sonegawa, an appeal 
was sustained where the expectations of increasing business and profits supported the petitioner's ability to 
pay the proffered wage. That case, however, related to petitions filed during uncharacteristically unprofitable 
or difficult years within a framework of profitable or successful years. During the year in which the petition 
was filed, the Sonegawa petitioner changed business locations, and paid rent on both the old and new 
locations for five months. There were large moving costs and a period of time when business could not be 
conducted. The Regional Commissioner determined that the prospects for a resumption of successful 
operations were well established. He noted that the petitioner was a well-known fashion designer who had 
been featured in Time and Look. Her clients included movie actresses, society matrons and Miss Universe. 
The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business 
reputation and outstanding reputation as a couturiere. In this case, one federal tax return contained in the 
record does not represent a framework of profitable years analogous to the Sonegawa petitioner. While the 
beneficiary's expertise in Peruvian cuisine may be appreciated, the effect of his permanent employment is 
conjecture. It is noted that with his employment in part of the year 2001, the petitioner's 2001 tax return still 
reflected modest ordinary income and net current assets. The AA0 cannot conclude that the petitioner has 
demonstrated that unusual circumstances have been shown to exist in this case, which parallel those in 
Sonegawa. 
Based on the evidence contained in the record and after consideration of the evidence and argument presented on 
appeal, the AAO concludes that the petitioner has not demonstrated its continuing financial ability to pay the 
proffered as of the priority date of the petition. 
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.