sustained EB-3 Case: Culinary Arts

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
EAC 04 106 53717 
PETITION: Immigrant petition for Alien Worker as a Skllled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 9 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. 
lkobert P. Wiemann, Director 
Administrative Appeals Office 
EAC 04 106 53717 
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 sustained. The petition 
will be approved. 
The petitioner is a restaurant specializing in Indian-style dishes. 
 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, accompanies 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 director denied the petition 
accordingly. 
On appeal, counsel submits a brief. 
The regulation 8 C.F.R. 5 204.5(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 
tj 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. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 23, 2001. The proffered wage as stated on the Form ETA 
750 is $12.05 per hour ($25,064 per year). 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. According 
to the tax returns in the record, the petitioner's fiscal years lasts from January 1 to December 3 1. On the Form 
ETA 750B, signed by the beneficiary on April 18, 2001, the beneficiary did not claim to have worked for the 
petitioner. 
With the petition, the petitioner submitted, among others, the following documents: 
Counsel's G-28; and, 
An approved ETA 750. 
On March 24, 2004, the director requested additional evidence pertinent to that ability. 
 The director 
specifically requested "accredited profitlloss statements," bank statements or personnel records. 
In response, the petitioner submitted: 
Page 3 
The petitioner's Form 1 120 for 2001 and 2002; 
Copies of the petitioner's monthly business bank statements for all of 2001; 
W-2 Wage and Tax Statements for 2001 issued to workers, whom counsel asserts the beneficiary will 
replace; and, 
The petitioner's Quarterly unemployment returns for 2001. 
The director denied the petition on June 24, 2004, finding that the evidence submitted with the petition and in 
response to its Request for Evidence did not establish that the petitioner had the continuing ability to pay the 
proffered wage beginning on the priority date. The director found that, for 200 1, the petitioner had no taxable 
income; $26,395 in current assets against $20,438 in liabilities; and an average daily bank balance for 2001 of 
$5,235.92. 
On October 15, 2004, the director rejected the Form I-290B timely filed by counsel on the ground that neither 
the petitioner nor its representative had signed the form. Thereafter, however, the director reinstated the 
appeal for processing on the basis that counsel had signed the appeal form on the petitioner's behalf, as 
authorized by the G-28. 
On appeal, counsel asserts the petitioner's federal income tax returns for 2001 show business revenues of 
$264,825 and, for 2002, $263,633. The monthly bank statements show balances in excess of the proffered 
wage for the 2001, counsel states, demonstrated the petitioner's ability to pay the proffered wage for that year. 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (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 petitioner did not establish that it 
employed and paid the beneficiary the full or partial proffered wage. 
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). 
Counsel's reliance on the petitioner's gross receipts, for 2001 and 2002, and its wage expense for employees 
other than the beneficiary, 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: 
EAC 04 106 53717 
Page 4 
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 incomefigures 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. (Original emphasis.) Chi-Feng at 537. 
The tax returns demonstrate the following financial information concerning the petitioner's continuing ability 
to pay the proffered wage of $25,064 per year from the priority date. 
In 2002, the Form 1120 stated net income' of $31,895. 
In 200 1, the Form 1 120 stated net income of $27,28 1. 
Therefore, for the years 2001 and 2002, the petitioner had sufficient net income to demonstrate its ability to 
pay the proffered wage. From the date the Form ETA 750 was accepted for processing by the U. S. 
Department of Labor, the petitioner established that it has the ability to pay the beneficiary the proffered wage 
as of the priority date through an examination of its net income. 
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 met that burden. 
ORDER: The appeal is sustained. The petition is approved. 
' Taxable income before net operating loss deduction and special deductions as reported on Line 28. We note that the 
director had referred to Line 30 of the return in making her determination.