dismissed EB-3 Case: Restaurant

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
b6 
FILE: EAC 04 180 53983 Office: VERMONT SERVICE CENTER Date: M 0 a 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. $ 1153@)(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, Director 
Administrative Appeals Office 
EAC 04 180 53983# 
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 specializing in Chinese cuisine. 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, accompanies 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. The director denied the petition accordingly. 
On appeal, counsel submits: 
A brief; 
The petitioner's business bank account for January 1-September 30,2004; and, 
The petitioner's internal income statement and balance sheet for the nine months ending September 
30,2004. 
The regulation 8 C.F.R. tj 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). 
Here, the Form ETA 750 was accepted on March 16, 2004. The proffered wage as stated on the Form ETA 
750 is $13 per hour ($27,040 per year). 
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 on December 5, 2003, to have a gross annual income 
of $18,05 1, and to currently employ five workers. According to the tax returns in the record, the petitioner's 
fiscal years lasts from January 1 to December 3 1.' On the Form ETA 750B, signed by the beneficiary on 
March 1, 2004, the beneficiary did not claim to have worked for the petitioner. 
With the petition, the petitioner submitted the following documents: 
The director denied the petition on October 12, 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, counsel asserts that the petitioner's bank balance demonstrates a monthly cash flow averaging 
$4,790.17, which is sufficient to pay the monthly proffered wage of $2,253.33. 
I 
 The petitioner's Form 1120s for 2003 is for the two-week period from December 15,2003, to December 3 1, 2003. 
EAC 04 180 53983# 
Page 3 
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 the 
present. 
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, 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). 
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 depreciation amounts on the 1985 and 1986 retums 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 retums and the net incomefigures 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 53 7. 
Counsel's submission of the petitioner's Form 1120s for 2003 does not pertain to the priority date of March 
16, 2004, or to the year 2004 and later, which is the relevant period for determining the petitioner's ability to 
pay the proffered wage.* 
Therefore, for the year 2004 to the present, the petitioner did not establish that it had 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. Counsel has not submitted the petitioner's federal tax returns for 2004 or 
later, however, and therefore CIS cannot consider the petitioner's net current assets3 for that period as an 
alternative method of demonstrating the ability to pay the proffered wage. 
It is noted that 8 C.F.R. 5 204.5(g)(2), also allows for copies of annual reports or audited financial statements, neither 
of which the petitioner submitted. 
3 
 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 
EAC 04 180 53983# 
Page 4 
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. 
Counsel 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. Counsel states that, because the petitioner's average 
monthly bank balances exceeded the monthly proffered wage, the petitioner has established its ability to pay 
the proffered wage. 
Counsel's reliance on the balances in the petitioner's bank account is misplaced. First, bank statements are 
not among the three types of evidence, enumerated in 8 C.F.R. $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 funds 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. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence 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. The AAO notes that the decision to dismiss the appeal is without 
prejudice and does not prevent the filing of a new petition or motion to reopen or reconsider if supported by 
documents specified in pertinent regulations 
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. 
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.