remanded EB-3 Case: Culinary

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 U.S. Department of Homeland Security 
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20 Mass. Ave., N.W., Rm. A3000 
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_ Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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Office: NEBRASKA SERVICE CENTER 
 Date: OCl 0 6 20% 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
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 Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b) 
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 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (MO) on appeal. The appeal will be remanded for further 
consideration. 
The petitioner is a Korean restaurant. It seeks to employ the beneficiary permanently in the United States as a 
cook, specialty foreign food. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, 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. 
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 ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's March 21, 2005 denial, the single issue in this case is whether or not the petitioner 
established its continuing ability to pay the proffered wage beginning on the priority date of the visa petition. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. $ 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 slulled labor (requiring at least two years training or experience), not of a temporary 
or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. $ 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. 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 profit/loss statements, bank account records, 
or personnel records, may be submitted b;l 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, which is the date the Form ETA 750 was accepted for processing by any office within the employment 
system of the Department of Labor. See 8 CFR $ 204.5(d). The priority date in the instant petition is January 
14,2004. The proffered wage as stated on the Form ETA 750 is $1,713 per month or $20,556 annually. 
The MO takes a de novo look at issues raised in the denial of ths 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 MO considers all pertinent 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
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. $ 103.2(a)(l). The record in the instant case 
appeal includes counse 
 the petitioner's 2004 Schedule C, Profit or Loss Form 
Business, and a sworn a 
 esting to the beneficiary's employment with the petitioner 
since May 2000, the tim 
 the establishment. Other relevant evidence includes a copy 
of the 
 2003 Schedule C, copies of the petitioner's 2004 Forms 941, Employer's Quarterly Federal 
Tax Return, copies of the beneficiary's 2000 through October 8, 2004 bank balances, and copies of payroll 
checks issued by the petitioner for the beneficiary in 2004. The record does not contain any other evidence 
relevant to the petitioner's ability to pay the proffered wage. 
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The petitioner's 2003 Schedule C reflects gross receipts of $53,950, wages paid of $3,400, and a net profit of 
$10,745. 
The petitioner's 2004 Schedule C reflects gross receipts of $130,474, wages paid of $17,663, and a net profit of 
$14,954. 
The beneficiary's bank balances do show monthly deposits of approximately $2,000; however, there is no 
evidence that those deposits were due to hs employment with the petitioner. 
,The payroll checks issued by the petitioner to the beneficiary in 2004 indicate wages earned by the beneficiary of 
$30,400. However, those checks do not show any cancellation stamps that would establish that the beneficiary 
actually received those checks. In addition, some of the checks appear to have been issued out of order (i.e. 
#I110 was issued in April 2004, #I231 was issued in December 2004, #I307 was issued in June 2004, #I175 was 
issued in August 2004, etc.). 
,On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $20,556 
based on its payroll checks issued to the beneficiary for 2004. Counsel also states that the petitioner has a net 
profit after payment of wages to the beneficiary for the past five years and to the present, and also, that the 
petitioner is not obligated to pay the proffered wage until adjustment of status is granted. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 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 for each year thereafter, until the beneficiary obtains lawful 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, 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 ofSonegawa, 12 I&N Dec. 
612 (Reg. Comrn. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be'con~idered~rirna facie proof of the petitioner's abijity to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on December 3 1, 2003, the beneficiary claims 
to have been employed by the petitioner from October 1999 to the present. However, the petitioner has only 
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). 
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provided non-cancelled payroll checks for 2004 as evidence that it employed the beneficiary in 2004. 
Therefore, CIS has no evidence that the petitioner compensated the beneficiary for his employment in 1999 
through 2003. Therefore, any funds paid to the beneficiary in those years cannot be used as evidence of the 
petitioner's ability to pay the proffered wage in 2004 to the present. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, CIS will next 
examine the petitioner's net income figure as 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 Cop. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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), af'd., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., the court held that 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. 623 F.Supp at 1084. The court specifically rejected the argument that 
CIS should have considered income before expenses were paid rather than net income. Finally, there is no 
precedent that would allow the petitioner to "add back to net cash the depreciation expense charged for the year." 
See also Elatos Restaurant Cop., 632 F. Supp. at 1054. 
The petitioner is a sole proprietorship, a business in which one person operates the business in his or her 
personal capacity. Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a corporation, a sole proprietorship 
does not exist as an entity apart from the individual owner. See Matter of United Investment Group, 19 I&N 
Dec. 248, 250 (Comm. 1984). Therefore the sole proprietor's adjusted gross income, assets and personal 
liabilities are also considered as part of the petitioner's ability to pay. Sole proprietors report income and 
expenses from their businesses on their individual (Form 1040) federal tax return each year. The business- 
related income and expenses are reported on Schedule C and are carried forward to the first page of the tax 
return. Sole proprietors must show that they can cover their existing business expenses as well as pay the 
proffered wage out of their adjusted gross income or other available funds. In addition, sole proprietors must 
show that they can sustain themselves and their dependents. Ubeda v. Palmer, 539 F: Supp. 647 (N.D. Ill. 
1982)' af'd, 703 F.2d 571 (7' Cir. 1983). 
In Ubeda, 539 F. Supp. at 650, the court concluded that it was unlikely that a petitioning entity structured as a 
sole proprietorship could support himself, his spouse and five dependents on a gross income of approximately 
$20,000 where the beneficiary's proposed salary was $6,000 (or approximately thirty percent of the 
petitioner's gross income). 
In the instant case, the petitioner did not provide a complete copy of its 2004 Form 1040, U.S. Individual 
Income Tax Return. Therefore, CIS is unable to determine the petitioner's adjusted gross income or the 
number of individuals supported by the tax return. In addition, the petitioner did not submit nor did the 
director request a list the petitioner's monthly personal expenses that would help determine if the petitioner 
possessed sufficient funds to pay the proffered wage and support the petitioner and his dependents. Evidence 
regarding additional funds with which to pay the proffered wage was also not requested. However, it appears 
fi-om the 2004 non-cancelled payroll checks that the petitioner paid the beneficiary $30,400 or $9,844 more 
than the proffered wage of $20,556 in 2004. 
The director must afford the petitioner reasonable time to provide evidence of its ability to pay the beneficiary 
the proffered wage of $20,556, to provide copies of the 2004 cancelled checks paid to the beneficiary, a list of 
the petitioner's monthly expenses, additional funds to pay the proffered wage, and any other evidence the . 
director may deem necessary. The director shall then render a new decision based on the evidence of record 
as it relates to the regulatory requirements for eligibility. As always, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: 
 The director's March 21, 2005 decision is withdrawn. The petition is remanded to the director 
for entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for 
review.