remanded EB-3 Case: Culinary Arts

PUBLIC COPY 
U.S. Departnlent of IIonleland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration., 
Services 
D6 
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. 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, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The case will be remanded to the Service Center 
in accordance with below. 
The petitioner is a Japanese restaurant that seeks to employ the beneficiary permanently in the United States 
as a cook, specialty foreign ("Specialty Cook, Japanese Cuisine"). As required by statute, the petition filed 
was submitted with Form ETA 750, Application for Alien Employment Certification, approved by the 
Department of Labor (DOL). As set forth in the director's May 18, 2005, denial, the case was denied based 
on the petitioner's failure to demonstrate its ability to pay the proffered wage from the priority date of the 
labor certification until the beneficiary obtains permanent residence. 
The AAO takes a de novo look at issues raised in the denial of this 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 AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal.' 
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 the decision. 
Further elaboration of the procedural history will be made only as necessary. 
The petitioner has filed to obtain permanent residence and classify the beneficiary as a slulled worker. Section 
203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 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 petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 CFR tj 204.5(d). Therefore, 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. 9 204.5(g)(2). 
The regulation 8 C.F.R. 3 204.5(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 
I 
 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. 4 103.2(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). 
Page 3 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 19, 
2001. The proffered wage as stated on Form ETA 750 for the position of a specialty cook is $12.22 per hour, 
40 hours per week, which is equivalent to $25,417.60 per year. The labor certification was approved on 
August 5, 2003, and the petitioner filed the 1-140 Petition on the beneficiary's behalf on August 23, 2004. 
Counsel listed the following information on the 1-140 Petition related the petitioning entity: established: 
October 20, 2000; gross annual income: $126,404; net annual income: $2,801; and current number of 
employees: 3; salary: $488.80 per week. 
On April 1, 2005, the Service Center issued a Notice of Intent to Deny ("NOID") based on the petitioner's 
failure to demonstrate its ability to pay the beneficiary the proffered wage. The Service Center requested 
copies of the petitioner's federal tax returns for the years 2001, 2002, and 2003, as well as evidence that 
. that the petitioner submitted bank account statements for, and 
determined that the evidence submitted in response to the 
18, 2005. The petitioner appealed and the matter is now 
before the AAO. 
We will initially examine the petitioner's ability to pay based on the evidence in the record, and then examine 
the petitioner's additional arguments raised on appeal. First, in determining the petitioner's ability to pay the 
proffered wage during a given period, CIS will 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. On Form ETA 750B, signed by the beneficiary on 
April 17,2001, the beneficiary listed that he was employed with the petitioner since November 2000. 
The petitioner provided the following W-2 Forms as evidence: 
Year Amount 
2004 $12,480 
2003 $12,480 
2002 $7,800~ 
The W-2 Forms along, however, are insufficient alone to establish the petitioner's ability to pay the proffered 
wage of $25,417.60 per year. 
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. 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), afd, 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 
2 
 The petitioner did not submit a W-2 Form for the beneficiary for the years 2000 or 2001. 
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 tax returns demonstrate the following financial information concerning the petitioner's ability to pay 
from the priority date. The record demonstrates that the petitioner is an S corporation. Where an S corporation's 
income is exclusively from a trade or business, CIS considers net income to be the figure for ordinary income, 
shown on line 21 of page one of the petitioner'shForm 1120s. Line 21 indicates ordinary income as follows: 
Tax year 
 Net income or (loss) 
2003 $2,801 
2002 $4,053 
200 1 $4,3 1 1 
The petitioner's net income would not allow for payment of the beneficiary's proffered wage in any of the 
above years, even if the wages paid to the beneficiary were added to the petitioner's net income. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilitie~.~ Current assets include cash on hand, inventories, and receivables expected to be 
converted to cash within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. 
Its current liabilities are shown on lines 16 through 18 on the Forms 1120s. 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, and evidences the petitioner's ability to pay. The net current assets would 
be converted to cash as the proffered wage becomes due. 
Tax year Net current assets 
2003 $25,899 
2002 $24,692 
200 1 $2 1,570 
Following this analysis, the petitioner's Federal Tax Returns shows that the petitioner would have the ability 
to pay the proffered wage in the year 2003, but would lack the ability to pay the required wage in 2002 (where 
the petitioner's net current assets are only $1,000 below the proffered wage), and in 2001. If the wages paid 
to the beneficiary were added to the net current assets, this would result in a combined total of $37,172 in 
2002, sufficient to demonstrate the ability to pay the proffered wage in that year as well. The petitioner 
cannot, however, demonstrate its ability to pay the proffered wage in 2001, where the net current assets are 
short in the amount of $3,847 required to pay the proffered wage. 
Counsel contends on appeal that the AAO should consider the petitioner's ability to pay based on bank 
statements forwarded. The petitioner submitted monthly business checking statements from March 3 1, 2001 
to March 31,2005. The bank statements reflect a high balance of $13,454 at the end of November 2002 and a 
low balance of $4,834 at the end of August 2003. In the year 2001, the petitioner maintained a balance of 
3 
According to Barron's Dictionaly of Accounting Terms 117 (31d 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 118. 
over $9,000 in eight months. In 2002, the petitioner maintained a balance of over $7,000 in each month of the 
year; in 2003, with the exception of August's balance, the petitioner maintained a balance of over $6,000 in 
each month; in 2004, the petitioner maintained a balance of over $5,000 in each month, with the balance 
above $7,000 in four months, above $8,000 in three months, and above $9,000 in one month. 
Generally, bank statements are not among the three types of evidence listed in 8 C.F:R. $ 204.5(g)(2) as 
acceptable to establish a petitioner's ability to pay a proffered wage. This regulation allows for consideration of 
additional material "in appropriate cases." As a fundamental point, the petitioner's tax returns are a better 
reflection of the company's financial picture, since tax returns address the question of liabilities. Bank statements 
do not reflect whether the petitioner has any outstanding liabilities. 
Looking at the totality of the circumstances, see Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), and in 
consideration of the following: that the petitioner has been in business for over five years, that the petitioner 
can demonstrate its ability to pay the proffered wage for two years, and is not significantly below the wage in 
the third year; that the petitioner has demonstrated partial payment to the beneficiary; and that the business' 
federal tax returns do not exhibit substantial liabilities, we would consider bank statements under these 
circumstances to aid in establishing the petitioner's ability to pay the proffered wage. Based on the foregoing, 
we find that the petitioner can establish its ability to pay the proffered wage. 
A second point not raised in the director's denial was the petitioner's failure to document that the beneficiary 
had all of the education, training, and experience as required in the certified ETA 750. In evaluating the 
beneficiary's qualifications, CIS must look to the job offer portion of the alien labor certification to determine 
the required qualifications for the position. CIS may not ignore a term of the labor certification, nor may it 
impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 40 1, 406 
(Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 
699 F.2d 1006 (91h Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 
(IS' Cir. 198 1). 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 eligble 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. Comm. 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). 
To document a beneficiary's qualifications, the petitioner must provide evidence in accordance with 
8 C.F.R. $ 204.5(1)(3): 
(ii) Other documentation- 
(A) General. Any requirements of training or experience for dulled, workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. If the petition is for a slulled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Page 6 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
The beneficiary must demonstrate that he had the required skills by the priority date of April 19, 2001. On 
the Form ETA 750A, the "job offer" states that the position requires three years of experience in the job 
offered, with job duties including: "Plans menus, prepares and cooks variety of Japanese and Sushi dishes, 
desserts and other foods according to recipes using fresh ingredients such as Daikon and roots, such as 
Hakusai, Kabocha, Nasu, Matsutake, mushrooms, Kombu, Nagangi, Miso, Shoyu, goma, rice, beans, sprout, 
pastes, sauces. Prepares fresh fish, shell-fish, meats, soups, vegetables and sauces. Portions and garnishes 
food." The petitioner did not list that the position required any education in Section 14, and listed no other 
special requirements for the position in Section 15. 
On the Form ETA 750B, the beneficiary listed prior 
 ovember 2000 to 
present (April 17, 2001, the date the form was signed); (2) 
 ew York, New York, fiom 
July 1997 to October 2000 as a Specialty Cook, Japanese 
 Japanese Restaurant, New 
York, New York, from November 1991 to 1996 as a Specialty Cook, Japanese Cuisine; and (4) ( 
Restaurant, New York, New York, from April 1990 to November 1991 as a Specialty Cook, Japanese 
Cuisine. 
As evidence to document the beneficiary's qualifications, the petitioner submitted the following letter: 
Letter from., from the President, 
Dates of employment: November 199 1 to 19 
 not specify whether the position was 
full-time or part-time, and does not list the number of hours worked per week); 
Title: not listed; 
Job Duties: not listed. 
The letter is insufficient to document that the beneficiary has the required three years of experience as a 
specialty cook of Japanese cuisine. The letter does not list the beneficiary's title or job duties, so that we 
cannot verify that he worked as a Japanese specialty cook, as opposed to another position within the 
restaurant. The petitioner did not submit any further documentation to demonstrate the beneficiary's prior 
experience. As the beneficiary has other experience listed, and CIS did not request further information in its 
NOID, the petitioner should be afforded an opportunity to address this issue either by obtaining additional 
information from the original author of the letter, or by providing a letter from one of his other prior 
employers. 
In view of the foregoing, the previous decision of the director will be withdrah. 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. 
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.