dismissed EB-3 Case: Restaurant

identifving data deleted to 
pent clearly unwamsd 
invasion of personal priw 
PUBLIC COPY 
U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Date: 0 9 2007 
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. tj 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. 
Robert P. Wiemann, ~higf 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Director (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 foreign 
food specialty cook (Korean-Chinese specialty cook). As required by statute, the petition is accompanied by 
a Form ETA 750, Application for Alien Employment Certification, approved by the Department of Labor 
(DOL). 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 the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's December 19, 2005 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)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 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 8 C.F.R. 4 204.5(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, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 C.F.R.. $ 
204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Cerbfication as certified by the U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 28, 2001. The proffered wage as stated on the Form ETA 
750 is $15.75 per hour ($32,760 per year). The Form ETA 750 states that the position requires two years of 
experience in the job offered. 
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 appeal1. On appeal, the 
petitioner submits a brief and copies of evidence submitted previously. Relevant evidence in the record 
includes the petitioner's corporate federal tax returns for 2001 through 2004. The record does not contain any 
other evidence relevant to the petitioner's ability to pay the wage. 
On the petition, the petitioner claimed to have been established in 1997, and to currently employ 4 workers. 
The petitioner did not provide information on its gross annual income and net annual income on the petition. 
On the Form ETA 750B signed on April 25, 2001, the beneficiary did not claim to have worked for the 
petitioner. 
On appeal, the petitioner asserts that the director improperly determined that the petitioner did not have the 
ability to pay the proffered wage based upon another approved immigrant petition which it claims was not 
filed by the petitioner. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor cerbfication 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 lawhl 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, Citizenship and Immigration Services (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. 612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner employed and paid 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 submit any evidence to show that the petitioner paid the beneficiary any 
amount of compensation in the relevant years. Thus, the petitioner failed to establish its ability to pay the 
proffered wage through wages paid to the beneficiary from 2001 onwards. 
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 income figure reflected on the petitioner's 
federal income tax return, 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 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, 7 19 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on its gross income and gross profit is misplaced. Showing that the petitioner's total income 
- -- 
1 
 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) and 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 
exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the 
proffered wage is 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. Reliance on the petitioner's 
depreciation in determining its ability to pay the proffered wage is misplaced. The court in K.C.P. Food Co., 
Inc. v. Sava specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. 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 Jigures 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.) Chi-Feng at 537. 
The record contains copies of the petitioner's Form 1 120s U.S. Income Tax Return for an S Corporation for 2001 
through 2004. According to the tax returns in the record, the petitioner is structured as an S corporation and 
the petitioner's fiscal year is based on a calendar year. The petitioner's tax returns for 2001 through 2004 
demonstrate the following financial information concerning the petitioner's ability to pay the proffered wage 
of $32,760 per year from the priority date: 
In 200 1, the Form 1 120s stated a net income2 of $42,203. 
In 2002, the Form 1120s stated a net income of $24,054. 
In 2003, the Form 1120s stated a net income of $12,734. 
In 2004, the Form 1120s stated a net income of $25,204. 
Therefore, for the year 2001, the petitioner's net income appeared to be sufficient to pay the instant 
beneficiary the proffered wage of $32,760 that year. However, the director's search of immigration records 
revealed that another immigrant petition filed by the petitioner in 2001 on behalf of a different alien (EAC-02- 
198-5 1050) with a proffered wage of $24,960 per year was approved by the director. The remaining balance 
of $1 8,793 after deducting the previously approved petition's proffered wage from the net income of $42,203 
2 
 Where an S corporation's income is exclusively from a trade or business, CIS considers net income to be the 
figure for ordinary income, shown on line 21 of page one of the petitioner's Form 1120s. The instructions on 
the Form 1120s U.S. Income Tax Return for an S Corporation state on page one, "Caution: Include only trade 
or business income and expenses on lines la through 2 1 ." 
Where an S corporation has income from sources other than from a trade or business, net income is found on 
Schedule K. The Schedule K form related to the Form 1120s states that an S corporation's total income from 
its various sources are to be shown not on page one of the Form 1120s' but on line 23 or 17e of the Schedule 
K, Shareholders' Shares of Income, Credits, Deductions, etc. See Internal Revenue Service, Instructions for 
Form 1 120s (2003), available at http://www.irs.gov/pub/irs-priorli 1 120s--2003 .pdf; Instructions for Form 
1 120s (2002)' available at http://www.irs.gov/pub/irs-priorli 1 120s--2002 .pdf. 
Page 5 
is not sufficient to pay the instant beneficiary the proffered wage. On appeal, the petitioner asserts that it 
never filed the petition (EAC-02-198-51050) in 2001. The AAO finds fiom CIS records that the petition 
(EAC-02-198-51050) was not filed by the instant petitioner, but by a restaurant with the same name as the 
petitioner. Therefore, the director was in error in determining that the petitioner did not have the ability to 
pay the proffered wage based on a petition filed by another business entity. However, the AAO's research 
does reveal that the petitioner filed another 1-140 immigrant petition (EAC-00-120-52061) with a priority date 
of October 1, 1996. The petition (EAC-00-120-52061) was approved by the director on November 29, 2000 
and the beneficiary of that approved petition was adjusted to permanent residence on April 4, 2005. The 
regulation requires that the petitioner must demonstrate its ability to pay the proffered wage at the time the 
priority date is established and continuing until the beneficiary obtains lawful permanent residence. 
Therefore, the petitioner is obligated to demonstrate that it could pay the beneficiary of the approved petition 
(EAC-00-120-52061) the proffered wage fiom 1996 to 2005 and in the meantime also could pay the instant 
beneficiary the proffered wage of $32,760 in 2001 through the present. The record shows that the petitioner 
had net income sufficient to pay only one proffered wage. 
Moreover, for the years 2002, 2003 and 2004, the petitioner did not have sufficient net income even to pay a 
single proffered wage. Therefore, the petitioner failed to establish its continuing ability to pay the proffered 
wage from the year of the priority date to the present. 
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 liabilities.' 
 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 the total of a corporation's end-of-year net current assets and 
the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is 
expected to be able to pay the proffered wage using those net current assets. 
The petitioner's net current assets during 2001 were $(5,372). 
The petitioner's net current assets during 2002 were $13,746. 
The petitioner's net current assets during 2003 were $16,358. 
The petitioner's net current assets during 2004 were $16,254. 
Therefore, for the years 2001 through 2004, the petitioner had insufficient net current assets to pay the 
proffered wage, even a single proffered wage to the instant beneficiary. 
3 
According to Barron's Dictionary of Accounting Terms 117 (3" 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. 
c Page 6 
The record does not contain any evidence showing that the petitioner paid the full proffered wage to the 
beneficiary of the previously approved petition in 2001 to 2004. Therefore, from the date the Form ETA 750 
was accepted for processing by the U. S. Department of Labor, the petitioner had not established that it had 
continuing ability to pay the beneficiary the proffered wage as of the priority date in 2001 to 2004 through an 
examination of wages paid to the beneficiary and its net income, or its net current assets. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
the Form ETA 750 was accepted for processing by the Department of Labor. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.