dismissed EB-3 Case: Restaurant

ulentifying dab deleted to 
ptevent cbdy unwamted 
Invasion d prsonal privacy 
U.S. Department of Ilomeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
6d. 
FILE: EAC-03-259-57396 Office: VERMONT SERVICE CENTER 
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. 8 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
Administrative Appeals Office 
EAC-03-259-57396 
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 Middle Eastern restaurant. It seeks to employ the beneficiary permanently in the United 
States as a foreign food 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. 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. 
On appeal, the petitioner submits a brief and additional evidence. A properly executed Form G-28, Notice of 
Entry of Appearance as Attorney or Representative, is signed by the petitioner's representative and counsel. 
On appeal, it is not clear that the petitioner is still retained by counsel; however, absent explicit 
communication of the termination of their attorney-client relationship, the AAO is providing counsel with a 
copy of this decision. 
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 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. 5 204.5(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 CFR 
$ 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 Certification 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. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The instant petition is for a substituted beneficiary. 
An 1-140 petition for a substituted beneficiary retains the same priority date as the original ETA 750. Memo. 
from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization Service, to Regional 
Directors, et al., Immigration and Naturalization Service, Substitution of Labor CertiJication BeneJiciaries, at 
3, http://ows.doleta.gov/dmstree/fm/fm96/fm28-96a.pdf (March 7, 1996). The proffered wage as stated on 
the Form ETA 750 is $14.57 per hour ($30,305.60 per year). The Form ETA 750 states that the position 
requires two years of experience. 
EAC-03-259-57396 
Page 3 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the 
petition, the petitioner claimed to have been established in 1995 and to currently employ two workers. 
According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. With the 
petition, the petitioner submitted a Form ETA 750B with information pertaining to the qualifications of the 
new beneficiary. On the Form ETA 750B, signed by the substituted beneficiary on July 18, 2003, the 
beneficiary did not claim to have worked for the petitioner. 
With the petition, the petitioner submitted its federal corporate tax returns for 2001 and 2002. On June 8, 
2004, because the director deemed the evidence submitted insufficient to demonstrate the petitioner's 
continuing ability to pay the proffered wage beginning on the priority date, inter alia, the director requested 
the petitioner's bank statements. In response, the petitioner submitted, inter alia, bank statements. 
The director denied the petition on September 22, 2004, finding that the evidence submitted with the petition 
and in response to its request for evidence did not establish that the petitioner had the continuing ability to pay 
the proffered wage beginning on the priority date. 
On appeal, the petitioner asserts that he is the sole owner of the petitioner and his cash, real estate property, 
and an affidavit of support he completed on behalf of the beneficiary establish the petitioner's continuing 
ability to pay the proffered wage beginning on the priority date. The petitioner submits the owner's 
individual income tax returns, bank statements, documents evidencing the petitioner's owner's real estate 
holdings, and a Form 1-864 Affidavit of Support under Section 2 13A of the Act completed by the petitioner's 
owner on behalf of the beneficiary. 
At the outset, the petitioner's reliance on the balances in its bank account is misplaced. First, bank statements 
are not among the three types of evidence, enumerated in 8 C.F.R. fj 204.5(g)(2), required to illustrate a 
petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate 
cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. $204.5(g)(2) 
is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show 
the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third, 
no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow 
reflect additional available hnds that were not reflected on its tax return, such as the petitioner's taxable income 
(income minus deductions) or the cash specified on Schedule L that will be considered below in determining the 
petitioner's net current assets. 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (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 has not established that it 
employed and paid the beneficiary the full proffered wage during the period from the priority date through 
2002. 
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 
EAC-03-259-57396 
Page 4 
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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's 
gross receipts 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. The court 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 figures 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 tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $30,305.60 per year from the priority date. 
In 2001, the Form 1 120s stated net income' of -$3,343. 
In 2002, the Form 1120s stated net income of -$2,356. 
Therefore, for the years 200 1 and 2002, the petitioner did not have sufficient net income to pay the 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 ~iabilities.~ 
 A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. 
 Its year-end current 
I 
 Ordinary income (loss) from trade or business activities as reported on Line 21. 
*~ccordin~ 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. 
EAC-03-259-57396 
Page 5 
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 200 1 were $6,8 13. 
The petitioner's net current assets during 2002 were $7,709. 
Therefore, for the years 2001 and 2002, the petitioner did not have sufficient net current assets to pay the 
proffered wage. 
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 the continuing ability to pay the beneficiary the proffered wage as 
of the priority date through an examination of wages paid to the beneficiary, or its net income or net current 
assets. 
The petitioner's owner asserts in his brief accompanying the appeal that there is another way to determine the 
petitioner's ability to pay the proffered wage from the priority date. He states that his personal assets 
demonstrate the petitioner's continuing ability to pay the proffered wage beginning on the priority date. 
However, 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 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) stated, "nothing in the governing regulation, 8 C.F.R. fj 204.5, permits [CIS] to consider the 
financial resources of individuals or entities who have no legal obligation to pay the wage." The petitioner is 
structured as an S corporation not a sole proprietorship. Thus, the petitioner's owner's personal assets may 
not be considered as funds available to the petitioner to pay the proffered wage. 
The petitioner also misconstrues the use of the Affidavit of Support. The Affidavit of Support is utilized at 
the time a beneficiary adjusts or consular processes an approved immigrant visa to provide evidence to CIS 
that the beneficiary is not inadmissible pursuant to section 212(a)(4) of the INA as a public charge. The 
beneficiary in this matter has not advanced to a consular processing or adjustment of status phase of the 
proceeding. At the 1-140 immigrant visa filing state of proceeding, evidence is required of a sponsoring 
employer's ability to pay a proffered wage as of the priority date, not its guarantee to support the beneficiary 
in the future. 8 C.F.R. fj 204.5(g)(2). There is no provision in the employment-based immigrant visa statutes, 
regulations, or precedent that permits a personal guarantee or Affidavit of Support to be utilized in lieu of 
proving ability to pay through prescribed financial documentation. In any event, the Affidavit of Support is a 
future pledge of payment and does nothing to alter the immediate eligibility of the instant visa petition. A 
visa petition may not be approved based on speculation of future eligibility or after the petitioner becomes 
eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); 
Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The petitioner'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 any office within the employment system of 
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. 
EAC-03-259-57396 
Page 6 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.