remanded EB-3 Case: Restaurant

identifying data deleted to 
prevent clcarl y iivananted 
invasion of personal privaGy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
?-.. ** 
:I 
Office: VERMONT SERVICE CENTER Date: 42r 1 8 80) 
EAC-03-153-50249 
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. $ 1 153(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. 
~bbert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-03-153-50249 
Page 2 
DISCUSSION: The Director, Vermont 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 restaurant and seeks to employ the beneficiary permanently in the United States as a cook. 
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 
September 8, 2004 denial, the case was denied based on the petitioner's failure to demonstrate its ability to 
pay the proffered labor certification wage from the priority date 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. 9 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 5 204.5(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 lawkl 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). 
The regulation 8 C.F.R. 9 204.5(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 
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. 9 103.2(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). 
EAC-03-153-50249 
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, 
200 1. The proffered wage as stated on Form ETA 750 for the position of a cook is $13 per hour, 40 hours per 
week, equivalent to $27,040.00 per year. The labor certification was approved on February 21, 2003, and the 
petitioner filed the 1-140 on the beneficiary's behalf on April 21, 2003. On the 1-140, counsel listed the 
following information related the petitioning entity: date established: 1996; gross annual income: 
$1,159,652.00; net annual income: "see attached financial documents;" and current number of employees: 40. 
On April 16, 2004, the Service Center issued a Request for Additional Evidence ("RFE") for the petitioner to 
provide: copies of the beneficiary's W-2 statements and tax return for 200 1 if the beneficiary were employed 
by the petitioner. In response, the petitioner submitted its 2001 federal tax return, the beneficiary's 2001 W-2 
statement, and the petitioner's 200 1 bank statements. 
On September 8, 2004, the case was denied based on the director's determination that the petitioner had not 
established that it could pay the proffered wage from the priority date until the beneficiary obtains lawful 
permanent residence. The petitioner appealed. The appeal was listed as being due on Monday, October 11, 
2004. The appeal was received and stamped on October 12, 2004. The Service Center initially rejected the 
appeal as late and untimely filed. The petitioner objected and requested that the matter be reopened as 
Monday, October 11, 2004 was a federal holiday, Columbus Day, and therefore, the petitioner would be 
entitled, similar to if the appeal was due on a Saturday or Sunday, to an additional day for filing, or until 
Tuesday, October 12, 2004 based on 8 CFR, Part 1, Sec. 1.1 definitions. The Service Center reopened the 
matter, and the appeal is now before the AAO. 
We will examine the petitioner's ability to pay based on the record and then consider the petitioner's 
additional arguments on appeal. First, in determining the petitioner's ability to pay the proffered wage during 
a given period, Citizenship & Immigration Services (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. 
In the case at hand, on Form ETA 750B, signed by the beneficiary, but not dated, the beneficiary listed that 
she has been employed with the petitioner since September 1997. The petitioner submitted a 2001 W-2 Form 
showing wage payment in the amount of $20,723.58. This was the only year that the petitioner submitted the 
beneficiary's W-2 Form, and the documentation submitted would be insufficient, standing alone, to 
demonstrate the petitioner's ability to pay the proffered wage from the priority date until the beneficiary 
obtains permanent residence. 
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 Woodcrafi 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); Ubedu v. Palmer, 539 F. Supp. 647 (N.D. 111. 
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 
EAC-03-153-50249 
Page 4 
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 the 
proffered wage of $27,040.00 per year 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's Form 1120s. Line 
2 1 indicates ordinary income as follows: 
Tax year 
 Net income or (loss) 
2004 not submitted2 
2003 not submitted 
2002 not submitted 
200 1 -$25,829 
The petitioner's net income would not allow for payment of the beneficiary's proffered wage from the priority 
date until the beneficiary obtains permanent residence. The petitioner failed to submit tax returns or other 
evidence for the years 2002 and 2003. 
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 liabilities. 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 
2004 not submitted 
2003 not submitted 
2002 not submitted 
200 1 -$22,659 
Following this analysis, the petitioner's Federal Tax Returns shows that the petitioner similarly lacks the 
ability to pay the proffered wage in any year. 
The petitioner additionally submitted bank statements for the time period April 1, 2001 to December 31, 2001. 
The petitioner's bank statements reflect a checlung account balance varied between a low ending balance of 
$1,430 (December 2001) and a high ending balance of $3,620 (April 2001) for the statements submitted. 
Generally, bank statements are not among the three types of evidence listed in 8 C.F.R. fj 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 
2 
 The petitioner's 2003, and 2004 tax retums would not have been available at the time of filing the 1-140, 
but the 2003 return likely would have been available at the time of filing the instant appeal. 
EAC-03-153-50249 
Page 5 
do not reflect whether the petitioner has any outstanding liabilities. Further, 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. Therefore, the bank statements are not compelling evidence to demonstrate the petitioner's ability to pay 
the proffered wage. 
On appeal, counsel contends that the director erred in failing to consider the petitioner's bank statements in 
addition to the amount paid to the beneficiary exhibited on the 2001 W-2 Form. We have considered the 
bank statements above. 
Counsel challenges that the tax return exhibiting a loss in 2001 equates to the petitioner's inability to pay the 
proffered wage. Counsel claims that the petitioner had $22,850 in depreciation, which should be added back 
into the net profit, which would reflect a positive number, and therefore, the exhibit the petitioner's ability to 
pay in combination with the amount already paid to the beneficiary. 
Depreciation as a tax concept is a measure of the decline in the value of a business asset over time. See Internal 
Revenue Service, Instructions for Form 4562, Depreciation and Amortization (Including Information on Listed 
Property) (2004), at 1-2, available at htt~://www.irs.aov/~ub/irs-pdfli4562.pdf. Therefore, depreciation is a real 
cost of doing business. 
The depreciation argument has previously been addressed by courts, and dismissed this argument accordingly. 
The court in Chi-Feng Chang v. Thornburgh, 71 9 F. Supp. 532 (N.D. Texas 1989) 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. 
(Emphasis in original .) Chi-Feng at 537. 
Therefore, the AAO is not persuaded that the petitioner's depreciation can show its ability to pay the 
proffered wage. 
Counsel contends that the director misread the petitioner's current assets and liabilities, and that the 
petitioner's assets would total $361,459, and liabilities $91,460. We have considered the petitioner's net 
current assets above based on the formula elaborated. In counsel's formula, he adds all of the petitioner's 
assets listed on the tax return, while only considering some of the petitioner's ~iabilities.~ We note that the 
petitioner's current assets and liabilities were considered in the net current asset calculation as set forth above. 
3 
 Counsel additionally contends that stockholder equity is not a liability despite the category's listing under 
"liabilities" on the federal tax return. We note that stockholder equity was not included in the CIS or AAO 
calculation of net current assets. Additionally, we note that counsel cites to New York State Court and Texas 
Appellate cases in support of his position. While 8 C.F.R. fj 103.3(c) provides that precedent decisions of CIS 
are binding on all its employees in the administration of the Act, State or Appellate court decisions are not 
EAC-03-153-50249 
Page 6 
The petitioner additionally cites to the value of its capital stock, $150,000, and the value of its additional paid- 
in capital in the amount of $826,420 listed on the petitioner's 2001 tax return. Counsel contends that based 
on these two factors, the petitioner would have "an overwhelming amount of money available with which to 
pay the alien beneficiary." We note that both capital stock and paid-in capital would not be readily 
convertible cash assets with which to pay the beneficiary's salary. 
Further, counsel additionally notes that the petitioner paid the beneficiary based on the 2001 W-2 provided in 
the amount of $20,723 as noted above, which was $6,3 16 less than the proffered wage. We have considered 
the beneficiary's wages paid above, which standing alone are insufficient to demonstrate the petitioner's 
ability to pay the proffered wage. 
Finally, counsel contends that the director failed to consider the cumulative factors to determine the 
petitioner's ability to pay the proffered wage, and cites to Cerillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987) 
for the proposition that the courts will defer to administrative findings unless the agency has ignored factors, 
which should be taken into account. CIS and the AAO will take into account the totality of the circumstances 
related to the petitioner's business in determining the petitioner's ability to pay the beneficiary the proffered 
wage. See Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967). 
Examining the totality of the circumstances, we note that the petitioner's business was established in 1995, 
that the petitioner in 2001 had: gross receipts of $1,159, 652; a gross profit of $386,787; a total income of 
$772,865; and paid salaries to employees in the amount of $477,731. The petitioner exhibited partial 
payment to the beneficiary, which was only $6,3 16 less than the proffered wage. Based on the totality of the 
circumstances, the foregoing would reflect a strong likelihood that the petitioner could pay the proffered 
wage. However, we will remand to the Service Center in accordance with the instructions below for further 
consideration of the beneficiary's experience. Additionally, the Service Center should request the petitioner's 
federal tax returns for the years 2002, 2003 and 2004, to determine the petitioner's continued ability to pay 
the proffered wage from the priority date until the beneficiary obtains permanent residence. 
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. 401, 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 (9~ Cir. 1983); Stewart Infra-Red Cornmissaly of Massachusetts, Inc. v. Coomey, 661 F.2d 1 
(1" Cir. 1981). 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. 9 
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. 9 204.5(d). 
On the Fonn ETA 750A, the "job offer" states that the position requires two years of experience in the job 
offered, as a cook, with duties including: "sautC, gnll and broil meats, fish, chicken, seafood, vegetable and 
similarly binding. 
 Precedent decisions must be designated and published in bound volumes or as interim 
decisions. 8 C.F.R. 5 103.9(a). 
EAC-03-153-50249 
Page 7 
other foods according to recipe. Cook pastas, rice, sauces, and soups. Portion and garnish dishes." The 
petitioner listed no educational requirements in Section 14, and listed no special requirements for the position 
in Section 15. 
On the Form ETA 750B, signed by 
 isted her prior work experience 
as: (1) worlung for the petitioner, 
 from September 1997 to the 
"present" (the time of filing April 2 
 , 
For the individual beneficiary to qualify for the certified labor certification position, the petitioner must 
demonstrate the beneficiary's prior experience to qualify the individual for that position, and that the beneficiary 
obtained the experience by the time of the priority date. Evidence must be in accordance with 8 C.F.R. 9 
204.5(1)(3), which provides: 
(ii) Other docurnentation- 
(A) General. Any requirements of training or experience for slulled 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 skilled 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 Pilot Program occupation designation. The 
minimum requirements for this classification are at least two years of training or experience. 
The petitioner submitted a letter along with a certified translation to document the beneficiary's work experience, 
which provided: "I declare for all due purposes that, worked in my establishment, during the 
period from 1992 to 1995, exercising the function h she demonstrated to be an excellent 
employee, with nothing negative in her record." 
The letter provided regarding the beneficiary's experience is unduly vague as it does not indicate the month that 
the beneficiary began her employment and the month that the beneficiary ended her employment, and whether the 
experience obtained was on a full-time or part-time basis. Consequently, we are unable to accurately calculate the 
exact amount of the beneficiary's experience. For instance, if she began in December 1992 and concluded her 
employment in January 1995, but only worked on a part-time basis, that experience would be equivalent than less 
than two years of experience as a cook and the beneficiary would not qualify for the position. The petitioner did 
not submit any further documentation regarding the beneficiary's prior experience. The Service Center did not 
request any further documentation related to the beneficiary's prior experience. 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 additional relevant documentation to address the deficiency in the letter 
provided. 
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to 
the director consideration of the issues stated above. The director may request any additional evidence 
considered pertinent. Similarly, the petitioner may provide additional evidence within a reasonable period of 
EAC-03-153-50249 
Page 8 
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.