remanded EB-3 Case: Culinary

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rrn. A3042
Washington, DC 20529
ldentifyingdatadeletedto
preventclearlyunwarranted
invasionofpersonalprivacy
ftIBLlCCOpy
u.S. Citizenship
and Immigration
Services
FILE:
EAC-04-259-50849
Office: VERMONT SERVICE CENTER Date: ,ftAy 02 _
INRE: Petitioner:
Beneficiary:
PETITION: 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(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.
CC:
www.uscis.gov
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 remanded.
The petitioner is a restaurant. 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, 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 and denied the petition accordingly.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (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 skilled 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. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified
immigrants who hold baccalaureate degrees and who are members of the professions.
The regulation at 8 c.F.R. § 204.5(g)(2) states:
Ability ojprospective 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 either 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 by 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 petition's
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 c.F.R. § 204.5(d). The priority date in the instant
petition is March 14, 2002. The proffered wage as stated on the Form ETA 750 is $11.87 per hour, which
amounts to $24,689.60 annually. On the Form ETA 750B, signed by the beneficiary on November 28,2001,
the beneficiary claimed to have worked for the petitioner beginning in December 2001.1 The ETA 750 was
certified by the Department of Labor on February 13, 2004.
1 December 2001 is after the date the beneficiary signed the ETA 750B. According to the Schedule C from the Form
1040 U.S. Individual Income Tax Returns for 2001, 2002, and 20m_has a business named Tony's Pizza.
He is also part of a partnership named Ristorante, presumably the petitioner. On the Form ETA 750B, the
beneficiary claimed to have worked for Tony's Pizza from September 2001 to November 2001, and Tony's Pizza has a
different address than the petitioner, _ Ristorante Italiano. Thus, it appears that Tony's Pizza is a restaurant
owned by _ and operated as a sole proprietorship and located at a different location from the petitioner,
_sRistorante Italiano, and is therefore a different entity.
The 1-140 petition was submitted on September 13,2004. On the petition, the petitioner claimed to have been
established in 2001, to have a gross annual income of $60,113.00,2 and to have a net annual income of
$42,782.00 for 2001. With the petition, the petitioner submitted supporting evidence.
In a decision dated November 19, 2004, the director determined that the evidence did not establish that the
petitioner had the ability to pay the proffered wage as of the priority date and denied the petition.
On appeal, counsel submits additional evidence? Counsel states that the petitioner has sufficient cash assets and
the petitioner is not a corporation. Counsel submits a copy of the petitioner's bank statement in the name of the
petitioner's owner for November 20, 2001 through December 17,2001 and a letter from SunTrust Bank stating
the bank balance as of December 13,2004 for the petitioner's owner.
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
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).
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. § 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 of Sonegawa, 12 I&N Dec.
612 (Reg. Comm, 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 considered prima facie proof of the petitioner's ability to pay the proffered wage. In the
instant case, on the Form ETA~ed by the beneficiary on November 28, 2001, the beneficiary claimed to
have worked for the petitioner,__Ristorante Italiano, beginning in December 2001. However, the record
does not contain any Form W-2, Form 1099, or other evidence of compensation from the petitioner.
As another 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 for a given year,
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
2 According to _ Form 1040 U.S. Individual Income Tax Return for 2001, $60,113.00 is the income for
Tony's Pizza.
3 The record includes two copies of the Form G-28 Notice of Entry of Appearance as Attorney or Representative, dated
September 9, 2004, with Paul A. Murphy listed as the beneficiary's counsel and one copy of the Form G-28, dated
August 24, 2004, with Mr. Murphy listed as the petitioner's counsel. The record also contains a copy of the Form G-28,
dated April 12,2005, with Joe W. Nesari listed as the beneficiary's counsel. Even though Mr. Nesari appears to be the
current counsel on this case, the AAO will treat Mr. Murphy as the counsel of record because the Form G-28 with Mr.
Nesari listed as counsel is unsigned and Mr. Murphy is listed as the person filing the appeal on the Form I-290B.
Page 4
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. 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), aff'd., 703 F.2d 571 (7th Cir. 1983). In K.c.P. Food Co., lnc., 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. 623 F. Supp. at 1084. The
court specifically rejected the argument that the Service 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 Elatos Restaurant Corp., 632 F. Supp. at 1054.
The evidence indicates that the petitioner is a partnership. A partnership consists of a general partner(s) and
may also have limited partners. A general partner is personally liable for the partnership's total liabilities. As
such, a general partner's personal assets may be utilized to show the ability to pay the proffered wage.
However, a general partner's personal expenses and liabilities must also be examined in order to make a
determination that his or her assets are truly available to pay the proffered wage. Conversely, a limited
partner's liability is limited to his or her initial investment. The record of proceeding indicates that the
petitioner is a partnership in which has some interest. However, the record of proceeding does
not contain any of the required evidence such as the petitioner's tax returns (Form 1065 U.S. Return of
Partnership Income), ann~r audited statements. Without such documents, the AAO cannot
determine whether or not __is a limited partner or a general partner. If he is a limited partner, his
Form 1040 U.S. Individual Income Tax Returns and bank account funds would not be usable to demonstrate
the petitioner's ability to pay the proffered wage. If he is a general partner, then, like a sole proprietor, his
personal funds may be utilized to show the petitioner's ability to pay the proffered wage. In any event, the
regulation at 8 c.F.R. § 204.5(g)(2) requires the petitioner to submit documentation.
Counsel states that has sufficient cash assets. See [December 13, 2004] SunTrust letter and
[blank [b]alance of [p]ersonal account of $32,178.80 for [_has [at] SunTrust [Bank] $107,929.74
cash [b]alance as of [December] 13,2004." Counsel, in essence, is asserting that the petitioner has sufficient cash
assets based on one of its owner's bank account information. Evidence in support of this assertion includes a
copy of th~s bank statement for November 20, 2001 thr~Uh December 17, 2001 and a letter from
SunTrust Bank stating the bank balance as of December 13, 2004 for As stated above, due to a lack
of documents in the record, the AAO is unable to determine whether is a general partner and
whether_s personal funds may be utilized to show the petitioner's ability to pay the proffered wage.
Counsel also states that the petitioner is not a corporation. The AAO does not treat the petitioner as a
corporation; it treats the petitioner as a partnership. The director also did not treat the petitioner as a
corporation. However, the director did treat the petitioner as a sole proprietorship instead of a partnership in
her decision. The director, by not treating the petitioner as a partnership, did not give the petitioner the
opportunity to submit the required documents, such as the petitioner's Form 1065 U.S. Returns of Partnership
Income, showing that it is a partnership with the ability to pay the proffered wage.
In view of the foregoing, the previous decision of the director will be withdrawn and the petition is remanded
to the director for consideration of whether the petitioner, as a partnership, had the ability to pay the proffered
wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. The
director may request additional evidence. Similarly, the petitioner may provide additional evidence within a
reasonable period of time to be determined by the director. Upon receipt of all the evidence, the director will
review the entire record and enter a new decision.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c.
§ 1361. The petitioner has not met that burden.
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further
action in accordance with the foregoing and entry of a new decision, which, if adverse to the
petitioner, is to be certified to the AAO for review.