dismissed EB-3 Case: Restaurant

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
EAC 02 186 51944 
IN RE: *- 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
2Q3(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 ' 
DISCUSSION: The Director, Vermont Service Center, denied the preference visa petition. The Administrative 
Appeals Office (AAO) dismissed a subsequent appeal, affirming the director's decision. The matter is now before 
the AAO on a motion to reopenlreconsider. The motion will be granted. The previous decisions of the director 
and AAO will be affirmed. The petition will be denied. 
The petitioner is a restaurant. It seeks classification of the beneficiary pursuant to section 203(b)(3) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1153@)(3), and it seeks to employ the beneficiary permanently in 
the United States as a specialty cook. The director determined that the petitioner had not established that it has 
had the continuing ability to pay the proffered wage beginning on the priority date, and denied the petition 
accordingly. The AAO affirmed that decision, dismissing the appeal. 
The record shows that the motion was properly and timely filed and makes a specific allegation of error in 
law or fact. The procedural history of this case is documented in 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 decision of denial the sole issue in this case is whether or not the petitioner has 
demonstrated the continuing ability to pay the proffered wage beginning on the priority date. 
The regulation at 8 C.F.R. § 103.5(a)(2) states, in pertinent part, "Requirements for motion to reopen. A 
motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by 
affidavits or other documentary evidence." 
The regulation at 8 C.F.R. § 103.5(a)(3) states: 
Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and 
be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or Service policy. A motion to reconsider a decision on an application or petition must, 
when filed, also establish that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 
The instant motion qualifies as a motion to reopen because counsel provided new evidence. The motion qualifies 
as a motion to reconsider because, in the brief, counsel asserts that the director incorrectly applied the pertinent 
law. 
Section 203@)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 153(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 slalled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are unavailable in the United 
States. 
The regulation at 8 C.F.R. 9 204.5(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 
Page 3 
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 2, 2001. The ETA 750 was originally submitted by K.T. Indian Restaurant, Incorporated dba New 
Delhi Indian Restaurant of the same address as the instant petitioner. The instant petitioner was substituted on 
that Form ETA 750. The proffered wage as stated on the Form ETA 750 is $1 1.46 per hour, which equals 
$23,836.80 per year. 
The Form 1-140 petition was submitted on May 9, 2002. On the petition, the petitioner stated that it was 
established during October 2001 and that it employs four workers. The petition states that the petitioner's 
gross annual income is "$336,000 (projected).'7' In the space reserved for the petitioner to state its net annual 
income the petitioner entered, "see attached." Although this office is unable to find an attachment that could 
have been submitted contemporaneously with that petition, the record contains a letter dated November 13, 
2003 from the petitioner's accountant. That letter states that the petitioner "expects a profit between $12,000 
and $1 3,000 for the year ended [sic] December 3 1,2003."~ 
On the Form ETA 750, Part B, signed by the beneficiary on February 23, 2001, the beneficiary claimed to 
have worked for the original petitioner since May 2000. Both the petition and the Form ETA 750 indicate 
that the petitioner would employ the beneficiary in Plainsboro, New Jersey. 
The AAO reviews de novo issues raised in decisions challenged on appeal. See Dor v. RVS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989). The AAO considers all evidence properly in the record including evidence properly 
submitted on appeal.3 
In the instant case the record contains (1) the original petitioner's 2000 and 2001 Form 1120S, U.S. Income 
Tax Returns for an S Corporation, (2) the instant petitioner's 2001 and 2002 Form 1120-A U.S. Corporation 
Short-Form Income Tax Returns, (3) the instant petitioner's 2003 and 2004 Form 1120S, U.S. Income Tax 
Return for an S Corporation, (4) the instant petitioner's compiled year-to-date financial statements as of 
October 31, 2003, (5) a letter dated April 30, 2002 from an accountant, (6) a letter dated November 13, 2003 
from another accountant, (7) 2003 and 2004 Form W-2 Wage and Tax Statements, (8) pay statements, (9) a 
' 
 The petitioner's 2002 tax return, subsequently submitted, showed gross receipts of $226,752, indicating that the 
petitioner's projection was optimistic, although it was made more than four months into the subject year. 
2 
 The petitioner's 2003 tax return, subsequently submitted, showed ordinary income of $5,061, indicating that the 
petitioner's projection was optimistic, although it was made more than ten months into the subject year. 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations at 8 C.F.R. § 103.2(a)(l). The record in the instant case provides no reason to preclude 
consideration of any documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
computer printout of payroll records, and (10) photocopies of nine cancelled checks. The record does not 
contain any other evidence relevant to the petitioner's continuing ability to pay the proffered wage beginning 
on the priority date. 
The record also contains a September 26, 2001 contract for sale of the petitioning restaurant by the original 
petitioner to the instant petitioner and a bill of sale dated October 7, 2001 evincing the consummation of the 
sale. 
The original petitioner's tax returns shows that it was a corporation, that it incorporated on January 6, 1997, 
and that it reported taxes pursuant to accrual convention accounting and the calendar year. The 2001 return 
indicates that it was the original petitioner's final return. 
During 2000 the original petitioner declared ordinary income of $4,293. At the end of that year the original 
petitioner had current assets of $72,308 and current liabilities of $57,241, which ylelds net current assets of 
$15,067. This office notes that because the priority date of the instant visa petition is April 2,2001, however, 
that evidence pertinent to finances during previous years is not directly relevant to the petitioner's continuing 
ability to pay the proffered wage beginning on the priority date. 
During 2001 the original petitioner declared a loss of $26,982 as its ordinary income. At the end of that year 
the original petitioner had $23,437 in current assets and current liabilities of $12,498, which yields net current 
assets of $10,939. 
The instant petitioner's tax returns show that it is a corporation, that it incorporated on October 1 1, 2001, and 
that it reports taxes pursuant to cash convention accounting and the calendar year. 
The 2001 return indicates that it is the instant petitioner's initial return. The petitioner declared a loss of $334 
as its taxable income before net operating loss deductions and special deductions during 2001. This office 
notes that the petitioner's operations during that year encompassed the period fiom approximately October 7 
or October 11, 2001 to December 31, 2001. At the end of that year the petitioner had current assets of 
$39,474 and no current liabilities, which yields net current assets of $39,474. 
During 2002 the petitioner declared a loss of $16,751 as its taxable income before net operating loss 
deductions and special deductions. At the end of that year the petitioner declared no current assets and no 
current liabilities, which yields net current assets of $0. 
During 2003 the petitioner declared ordinary income of $5,061. At the end of that year the petitioner declared 
current assets of $1 8,667 and $3,549 in current liabilities, which yields net current assets of $15,118. 
During 2004 the petitioner declared ordinary income of $13,533. At the end of that year the petitioner had 
$19, 868 in current assets and $2,643 in current liabilities, which yields $17,225 in net current assets. 
The April 30,2002 accountant's letter states that the instant petitioner purchased the restaurant on October 10, 
2001 from the original petitioner. 
The November 13, 2003 accountant's letter states that the instant petitioner purchased the restaurant on 
October 10, 2001 from the original petitioner in this matter. The accountant further stated that the instant 
petitioner suffered losses during 2002 but that business is rapidly improving. The accountant stated that the 
petitioner had year-to-date net profit through October 31,2003 of $10,360.~ The accountant observed that the 
petitioner reports taxes pursuant to cash convention accounting. The accountant stated that, in his opinion, 
the petitioner is able to pay the proffered wage. Finally, the accountant stated that the beneficiary has worked 
for the instant petitioner since February 2003.~ 
The 2003 and 2004 W-2 forms show that the instant petitioner paid the beneficiary total wages of $23,400 
and $25,650 during those years, respectively. 
The pay statements were issued between February 15, 2003 and October 20, 2003 at irregular intervals 
ranging from 12 to 35 days and in irregular amounts ranging from $450 to $1,800. The hourly rate at which 
the beneficiary was remunerated is not shown on those pay statements, nor is the number of hours he worked. 
The total of the wages shown on all 12 of those pay statements is $18,000. 
The payroll record printout confirms that the petitioner paid the beneficiary gross pay $18,000 in 12 checks. 
That printout indicates that the beneficiary's wage was $450 per week. That printout also lists net pay. The 
cancelled checks confirm some of the net pay amounts shown on the printout. 
The director denied the petition on March 25, 2004. The AAO dismissed a subsequent appeal on August 30, 
2005, and counsel timely filed the instant motion. 
In the brief submitted with the instant motion counsel argued that the evidence in the record demonstrates the 
original petitioner's ability to pay the proffered wage from the April 2,2001 priority date to the October 2001 
sale of the restaurant. Counsel also argues that the evidence demonstrates the instant petitioner's ability to 
pay the proffered wage from the October 2001 sale of the restaurant to the present. Counsel further notes that 
Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Cornm. 1967) found that a petitioner's poor performance during a 
given year does not preclude approval of the petition. 
The petitioner must establish that its job offer to the beneficiary is realistic. Because filing an ETA 750 labor 
certification 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. 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). 
4 
 The petitioner's 2003 tax return, as was noted above, shows ordinary income of 5,061 for that entire year. 
No discrepancy exists between the beneficiary's statement on the Form ETA 750B that he began working for the 
original petitioner during May of 2000 and the accountant's statement that the beneficiary began working for the instant 
petitioner during February of 2003. 
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 evidence establishes that the instant petitioner paid the beneficiary $23,400 during 
2003 and $25,650 during 2004. The evidence does not establish that the instant petitioner paid the 
beneficiary wages during any other year. 
Further, although the beneficiary stated on the Form ETA 750 that he worked for the original petitioner from 
May 2000 until at least February 23, 2001 the evidence contains no evidence of wages the original petitioner 
paid to 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. 111. 1982), affd, 703 F.2d 571 (7th Cir. 1983). See also 8 C.F.R. $204.5(g)(2). 
Showing that a petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, showing that 
the petitioner paid total 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 CIS should have 
considered income before expenses were paid 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 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 
Page 7 
typically6 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 $23,836.80. The priority date is April 2, 2001. The original petitioner sold the 
restaurant to the instant petitioner on or about October 7 - 11, 2001.' A substituted petitioner, such as the 
instant petitioner, must demonstrate that it is a true successor within the meaning of Matter of Dial Auto 
Repair Shop, Inc. 19 I&N Dec. 481 (Comm. 1981). It must submit proof of the change in ownership and of 
how the change in ownership occurred. It must also show that it assumed all of the rights, duties, obligations, 
and assets of the original employer and continues to operate the same type of business as the original 
employer. This office is convinced by the evidence in the record that the instant petitioner is the true 
successor of the original petitioner within the meaning of Matter of Dial Auto Repair Shop. 
The substituted petitioner is obliged to show that its predecessor had the ability to pay the proffered wage 
beginning on the priority date and continuing throughout the period during which it owned the petitioning 
company. The successor-at-interest must also show that it has, itself, had the continuing ability to pay the 
proffered wage beginning on the date it acquired the business. See Matter ofDial Auto Repair Shop, Inc. 19 
I&N Dec. 481. 
The period of time during which the original petitioner must show the ability to pay the proffered wage is not 
affected by the fact that the priority date of the visa petition is April 2, 2001. This office will not consider 12 
months of income toward an ability to pay a proffered wage during some shorter period any more than we 
would consider 24 months of income toward paying the annual amount of the proffered wage. This office 
will not prorate the amount the original petitioner must show the ability to pay to reflect that some portion of 
the year had passed before the priority date. 
That the original petitioner sold the restaurant prior to the end of 200 1, however, does affect the portion of the 
proffered wage that it must show the ability to pay. During the final months of 2001 the original petitioner no 
longer owned the restaurant. The instant petitioner, not the original petitioner, must show the ability to pay 
the proffered wage during that period. The period from January 1, 200 1 to October 7 - 1 1, 2001 includes 
approximately 280 days and represents, therefore, approximately 77% of 2001. The original petitioner must 
show the ability to pay 77% of the $23,836.80 annual amount of the proffered wage, or $18,354.34, during 
2001. 
During 2001 the original petitioner declared a loss of $26,982 as its ordinary income. The original petitioner 
is unable, therefore, to demonstrate the ability to pay any portion of the proffered wage out of its profits 
during 2001. At the end of that year the original petitioner had net current assets of $10,939. That amount is 
insufficient to pay the appropriate portion of the proffered wage. 
The location of the taxpayer's current assets and current liabilities varies slightly from one version of the Schedule L to 
another. 
7 
 The record contains minor discrepancies pertinent to the date on which the instant petitioner acquired the restaurant 
from the original petitioner. The bill of sale is dated October 7, 2001. Both accountants stated that the petitioner 
purchased the business on October 10, 2001. The petitioner's tax returns state that it incorporated on October 11, 2001. 
This ofice does not find these differences significant or material. 
Page 8 
The instant petitioner must demonstrate its own ability to pay the proffered wage from the date it purchased 
the restaurant in early October to the end of that year, and during subsequent years. On the priority date, 
approximately 23% of 2001 remained. The petitioner must show the ability to pay 23% of the proffered wage 
during that remaining portion of 2001, or $5,482.46. 
During the portion of 2001 when it owned the restaurant 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 profits during 
that year. At the end of that year, however, the petitioner had net current assets of $39,474. That amount is 
greater than the portion of the proffered wage the petitioner is obliged to show the ability to pay during the 
portion of 2001 when it owned the restaurant, and the petitioner has shown the ability to pay the proffered 
wage during that period. 
The petitioner must show the ability to pay the entire proffered wage during 2002. During 2002 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 profits during that year. At the end of that year the petitioner had no 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 during that year. The petitioner submitted no reliable evidence of any other funds 
that were available to it during 2002. The petitioner has not demonstrated its ability to pay the proffered wage 
during 2002. 
The petitioner paid the beneficiary $23,400 during 2003 and must show the ability to pay the $436.80 balance 
of the proffered wage. During 2003 the petitioner declared ordinary income of $5,061. That amount is 
sufficient to pay the balance of the proffered wage. The petitioner demonstrated the ability to pay the 
proffered wage during 2003. 
The petitioner paid the beneficiary $25,650 during 2004. That amount is greater than the annual amount of 
the proffered wage. The petitioner has demonstrated the ability to pay the proffered wage during 2004. 
The petition in this matter was submitted on May 9, 2002. On that date the petitioner's 2005 tax return was 
unavailable. On September 13,2003 the service center issued a request for evidence in this matter, requesting 
additional evidence of the petitioner's continuing ability to pay the proffered wage beginning on the priority 
date. On that date the petitioner's 2005 tax return was still unavailable. Evidence of the petitioner's 
continuing ability to pay the proffered wage beginning on the priority date was not requested after that date. 
The petitioner is relieved of its burden to demonstrate its ability to pay the proffered wage during 2005 and 
later years. 
Counsel argues, however, that, notwithstanding that its tax returns do not demonstrate its continuing ability to 
pay the proffered wage beginning on the priority date, pursuant to Matter of Sonegawa, 12 I&N Dec. 612 its 
losses or low profits during a given year do not preclude approval of the instant petition. Counsel is correct. 
Sonegawa, however, relates to petitions filed during uncharacteristically unprofitable or difficult years and only 
within a framework of significantly more profitable or successful years. The petitioning entity in Sonegawa had 
been in business for over 11 years. During the year in which the petition was filed in that case the petitioning 
entity changed business locations and paid rent on both the old and new locations for five months. The petitioner 
suffered large moving costs and a period of time during which it was unable to do regular business. 
In Sonegawa, the Regional Commissioner determined that the petitioner's prospects for a resumption of 
successful business operations were well established. The petitioner was a fashion designer whose work had been 
featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. 
The petitioner's clients had been included in lists of the best-dressed Califomia women. The petitioner lectured 
on fashion design at design and fashion shows throughout the United States and at colleges and universities in 
Califomia. The Regional Commissioner's determination in Sonegawa was based in part on that petitioner's sound 
business reputation and outstanding reputation as a couturikre. 
Counsel is correct that, if losses or low profits are uncharacteristic, occur within a framework of profitable or 
successful years, and are demonstrably unlikely to recur, then those losses or low profits may be overlooked in 
determining the ability to pay the proffered wage. Here, the petitioner is a new business, and the record contains 
no evidence that it has ever posted a large profit. 
Counsel and the petitioner's accountant urge that the petitioner's poor performance is a result of it being a recent 
start-up business and that the petitioner's profit will rise. Previous projections by the petitioner and its 
accountants, however, have not been demonstrated to be accurate. Assuming that the petitioner's business will 
flourish, with or without hiring the beneficiary, is speculative. 
The instant petitioner failed to demonstrate that the original petitioner had the ability to pay the proffered 
wage during the portion of 2001 before it sold the restaurant. The instant petitioner failed to show that it had 
the ability to pay the proffered wage during 2002. Therefore, the petitioner has not established that it and its 
predecessor had the continuing ability to pay the proffered wage beginning on the priority date. The petition 
was correctly denied on that basis, which has not been overcome on appeal. 
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.C. 
9 136 1. The petitioner has not met that burden. 
ORDER: 
 The motion is granted. The AAO's decision of August 30, 2005 is affirmed. The petition is 
denied.