remanded EB-3 Case: Culinary Arts

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
adenwng data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U. S. Citizenship 
and Immigration 
Office: CALIFORNIA SERVICE CENTER Date: lV& 2 7 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. 3 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 
DISCUSSION: The preference visa petition was denied and denied again after the Director, California 
Service Center granted a motion to reopenlreconsider, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be remanded. 
The petitioner is a Chinese restaurant and seeks to employ the beneficiary as a Chinese specialty 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 denied the petition for failure to establish that 
the beneficiary had met the minimum requirements at the time that the request for certification was filed. 
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. 
The instant 1-140 petition was submitted January 16, 2003 without any documentation concerning the 
beneficiary's qualifications as required by the above regulation. After receiving responses to the director's 
requests for additional evidence (RFE) and a notice of intent to deny (NOID), on July 7, 2004 the director 
determined that the petitioner did not demonstrate that the beneficiary had the requisite experience before the 
priority date, and denied the petitioner accordingly. On December 2, 2004, the director denied the petition 
again after reviewing the case on a motion to reopen or reconsider. 
On appeal, counsel submits a brief and additional evidence'. 
A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the 
approval of the relating petition. To be eligible for approval, a beneficiary must have all the education, training, 
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. $ 103.2(b)(l), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); Matter of Katigbak, 14 
I. & N. Dec. 45, 49 (Reg. Cornm. 1971). The priority date 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 April 13, 2001. 
The certified Form ETA 750 in the instant case states that the position of Chinese specialty cook requires at a 
minimum two (2) years of experience in the job offered. On the Form ETA 750B, signed by the beneficiary on 
March 29, 2001, the 
 xperience. He listed his experience as a "~hinese 
Specialty Cook" with 
 at 604 Love Avenue, Tifton, GA 31794 from April 
1998 to August 2000. 
The petitioner must 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. 
Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
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. 5 103.2(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 AAO will frst evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
Page 3 
The regulation at 8 C.F.R. 3 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) of trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
The record of proceeding contains letters fro, the owner of he 
letter dated June 26, 2003 verifies that the beneficiary worked as lutc en manager fo 
the beneficiary worked as a 
to August 2000. The June 26, 
2003 letter does not 
 It does not include his duties, 
responsibilities, or 
 this letter is not sufficient and 
does not include any corroborating evidence that the beneficiary actually worked there. 
The second letter from 
/I 
dated July 20, 2004 was submitted with motion to reopenlreconsider. 
This letter states in part t at: 
This is to verify that employee- was hired as Chinese cook by 
May of year 1998 through September of year 2000. This is also to very 
worked around ten hours a day and five days a week. 
Nai Ang Jiang prepared and cooked all menu dishes, both Cantonese and Mandarin food. He 
chose our daily special ordered supplies and managed our kitchen staff. 
neficiary's previous employer in his experience letters using his Chinese 
signed the instant petition as the petitioner's authorized officer usin 
counsel's submission letter, - also known as 
n Tifton, Georgia, moved to Phoenix, started the petitioning restaurant, 
was the previous employer of the beneficiary and also the owner of the 
instant petitioning restaurant 
 beneficiary. A relationship invalidating a bonafide job offer may arise 
where the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through 
friendship." See Matter of Summart 374, 00-INA-93 (BALCA May 15, 2000). In the future proceeding the 
petitioner must discuss its relationship with the beneficiary. 
The third letter o- dated October 25, 2004 was submitted with response to the RFE issued by 
the director after granting the motion to reopen/reconsider. This letter verifies that the beneficiary worked 
from April of 1998 until August of 2000 instead of May of 1998 to September 2000, and worked 40 hours a 
week instead of 10 hours a day 5 days a week although counsel did not explain which letter is correct and 
upon what records this October 25, 2004 letter is based. 
On appeal current counsel asserts in his brief that: "[tlhe [bleneficiary has been able to obtain affidavits from 
U.S. citizens that establish that he indeed did work at the former job in Georgia and was a cook for the former 
Chinese restaurant. In the U.S. judiciary system sworn statements are accepted as creditable factual 
evidence." The affidavits from U.S. citizens counsel claimed consist of four letters written by the following 
It as a friend, vs former manager individuals : as a former co-worker 
of 
 s a friend of the benefic 
Although 8 C.F.R. 5 204.5(g)(l) pennits the consideration of other documentation of the beneficiary's 
qualifying experience in the circumstances that the required evidence is not available, it still requires other 
documentation to meet certain evidentiary standards. 
The letter from is notarized by a notary public in State of Nevada for "subscribed and sworn to 
before me on November 23, 2005", but without any declaration language in the affidavit itself. 
states that in 1998 he worked with the beneficiary at a restaurant in Tifton, Georgia called 
Chinese Restaurant. w 
In the letters andidentify themselves as U.S. citizens and friends visiting the 
beneficiarv on a weekly basis. Their letters write each of them met the beneficiary in 1998 while he was 
working a; as a specialty cook or a chef. However, both letters do not verify 
how long the beneficiary worked for that restaurant as a cook. Neither of these two letters contain any 
declaration under penalty, nor are they notarized. 
According tos letter, he was th 
from January 1998 to May 2001. In his letter 
from April 1998 to August 2000 as a Chines 
would call him 'young cook'. He was being paid cash as he did not have work papers at the time." 
letter is notarized by a notary public in State of Arizona 
was acknowledged before me this 19~ day of Nov. 2005 
 The record of proceeding 
indicates that the beneficiary was born on February 3, 1982. 0 ebe ". d that 
he was in primary school and middle school from September 1988 to February 1998. letter, 
however, does not describe the detailed duties the beneficiary performed as a Chinese s ecialty cook, does not 
mention any of the minimum requirements for the Chinese specialty cook a Chinese Restaurant, 
nor does it explain how the beneficiary was qualified for the position at the age of 16, two moths after middle 
school graduation. The former counsel wrote in his 1 bmitted with the motion to reopenlreconsider 
dated July 22, 2004 that: "As of the time period, Mr. said he checked his employment records and 
found that the applicant did in fact work for him at the Golden Star from May of 1998 to September of 2000." 
The second verification letter o the owner of Golden Star, dated July 20, 2004 states that: 
"This is to verify that as Chinese cook by Golden star from May of year 
1998 through September of year 2000." does not explain what records his statement is based 
on, whether he has checked the same employment records the owner rechecked or he has checked other 
records. 
Upon consideration of all evidence in the record including these letters discussed above, it appears that it is 
more likely than not that the beneficiary worked as a cook for two (2) years at the Chinese restaurant prior to 
the filing. 
However, the declarations that have been provided on motion are not affidavits as they were not sworn to or 
affirmed by the declarant before an officer authorized to administer oaths or affirmations who has, having 
confirmed the declarant's identity, administered the requisite oath or affirmation. See Black's Law Dictionary 
58 (7th Ed., West 1999). Because of these defects and inconsistence, the letters submitted as affidavits will 
be given little weight in these proceedings. 
Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988) states: 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
It is incumbent on the petitioner to resolve any inconsistencies in the record by independent 
objective evidence, and attempts to explain or reconcile such inconsistencies, absent 
competent objective evidence pointing to where the truth, in fact, lies, will not suffice. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
In view of the foregoing, the ground for the director's decision will be withdrawn. The petition is remanded 
to the director consideration of the issue stated above. The director may request any additional evidence 
considered pertinent. 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 on this issue. 
Beyond the director's decision, the AAO remands the petition to the director also to review and consider 
whether the petitioner had the continuing ability to pay the proffered wage beginning on the priority date to 
present. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. Q 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. 
 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. 
Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 13, 2001. The proffered wage as stated on the Form ETA 
750 is $10.40 per hour ($21,632 per year2). According to the tax returns in the record, the petitioner's fiscal 
year is based on calendar year. On the Form ETA 750B, signed by the beneficiary on March 29, 2001, the 
beneficiary claimed to have worked for the petitioner since September 2000. 
In determining the petitioner's ability to pay the proffered wage during a given period, 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 beneficiary claimed to have worked for the petitioner since September 2000. The record of 
proceeding contains W-2 fonns for 2001 and 2002 for all employees of the petitioner, and Form 941 
Quarterly Unemployment Tax and Wage Report for all four quarters of 2002 and the first three quarters of 
2003, however, none of them indicates that the petitioner paid any amounts to the beneficiary. The petitioner 
did not establish that it employed and paid the beneficiary in 2002 through the present. The petitioner must 
address this issue in any future proceeding. 
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). 
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. 
It is based on $10.40 per hour x 40 hours per week x 52 weeks. 
Page 7 
(Emphasis in original.) Chi-Feng at 537. 
The record indicates that the petitioner was structured as an S corporation3 and has filed Form 1120s for its 
tax returns. The record contains copies of the petitioner's Form 1120s U.S. Income Tax Return for an S 
Corporation for 1999 through 2003.~ The petitioner's tax returns demonstrate the following financial 
information concerning the petitioner's ability to pay the proffered wage of $21,632 per year from the priority 
date through 2003: 
In 2001, the Form 1 120s stated net incomeS of $38,965. 
In 2002, the Form 1120s stated net income of $(14,781). 
In 2003, the Form 1120s stated net income of $3,045. 
Therefore, for the years 2002 through 2003, the petitioner did not have sufficient net income to pay the 
proffered wage although the petitioner established that it had sufficient net income to pay the proffered wage 
for 2001. The petitioner must demonstrate its ability to pay the proffered wage with its net income from the 
priority date to the present in any future proceeding. 
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 liabilitie~.~ 
 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 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 the years in 2002 and 2003 were $12,126 and $15,376 respectively. Therefore, the petitioner 
did not have sufficient net current assets to pay the proffered wage for the years 2002 through 2003. The 
petitioner must establish that it had sufficient net current assets for those years when its net income was 
insufficient to pay the proffered wage or the difference between the wage actually .paid to the beneficiary and 
the proffered wage from the priority date to the present. 
Item D of the Form 1120s shows that the business entity was incorporated on October 1, 1999 and Item A 
of the Form 1120s shows that it was elected as an S corporation effective on January 1,2000. 
Since the priority date in the instant case is April 13, 2001, the tax returns prior to the priority date are not 
dispositive. The AAO will consider the tax returns for 2001 through 2003. 
s 
Ordinary income (loss) from trade or business activities as reported on Line 21. 
'~ccordin~ to Barron's Dictionary of Accounting Terms 117 (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. 
The evidence currently kept in the record of the instant case appears that 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. 
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.