sustained EB-3 Case: Culinary

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
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FILE: WAC 02 199 50907 Office: CALIFORNIA SbKVlLt LWTER Date: SEP 0 8 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
Administrative Appeals Office 
WAC 02 199 50907 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a commercial bakery. It seeks to employ the beneficiary permanently in the United States as 
a pastry 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. 
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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's March 4, 2003 denial, the single issue in this case is whether or not the petitioner 
has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence. 
Section 203(b)(3)(A)(i) of 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 
or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 8 204.5(g)(2) states, in pertinent part: 
Ability ofprospective 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. 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 profitfloss 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 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 CFR $ 204.5(d). The priority date in the instant petition is May 19, 
1997. The proffered wage as stated on the Form ETA 750 is $1 1.55 per hour or $24,024 annually. 
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 appeal1. Relevant evidence submitted on 
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 
WAC 02 199 50907 
Page 3 
appeal includes a letter from 
 president of the petitioner, stating that the petitioner has "successfully 
processed payroll since 198 
 a copy of a fax from Automatic Data Processing (ADP) stating that 
the petitioner has processed its payroll with ADP since October 8, 1997 and continues to do so, copies of the 
petitioner's 2002 payroll summaries from ADP, co ciary's 1998, 2001, and 2002 Forms W-2, 
Wage and Tax Statements, copies of Forms W-2 for 
w 
for 1998 through 2000, and copies of the 
beneficiary's 2000 through 2002 Forms 1040, U.S. n IVI ua ncome Tax Returns. Other relevant evidence 
includes the petitioner's 1996 through 2001 Forms 1 120, U.S. Corporation Income Tax Returns. The record does 
not contain any other evidence relevant to the petitioner's ability to pay the proffered wage. 
The beneficiary's 1998, 2001, and 2002 Forms W-2 reflect wages issued by the petitioner to the beneficiary of 
$13,090, $13,827.59, and $19,734.38, respectively. 
The petitioner's 1996 through 2001 Forms 1120 reflect taxable incomes before net operating loss deduction and 
special deductions or net incomes of $18,558, -$39,127, -$27,985, -$13,493, -$34,531, and $120,316, 
respectively. The petitioner's 1996 through 2001 Forms 1120 also reflect net current assets of $31,861, 
-$108,506, -$95,249, -$124,476, -$176,349, and -$130,289, respectively. 
On appeal, the petitioner states: 
The employer's previously submitted U.S. corporate taxes, which demonstrated to the service 
center a negative loss of earnings. Due to business related investments and purchases 
including the costs incurred by the employer for inventory purchases, new equipment 
purchase, including ovens, delivery vehicles and refrigeration. Therefore, the employer 
declares that naturally during those tax years, the corporate taxes would not indicate profits, 
However, the petitioning employer, beginning from the priority date of 1996 to present, has 
sufficiently and success full^ processed the payroll for all employees. 
In 2001, the petitioning employer was found capable to provide the similar prevailing wages 
as was demonstrated in the 
 case matter of 
brother of the pending beneficiary, 
 specifically on January 
18,200 1. CODY of said approval is now attached 
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. 5 204.5(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 
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 provided no explanation as to why Forms W-2 were provided for They 
will, therefore, not be considered when determining the petitioner's ability to pay the proffered wage of 
$24,024 to the beneficiary. 
WAC 02 199 50907 
Page 4 
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, the Form ETA 750B is not in the record of proceeding; and therefore, it is unclear whether the 
beneficiary claimed the petitioner as a past or present employer. However, the petitioner submitted copies of 
the beneficiary's 1998, 2001, and 2002 Forms W-2 which reflect wages earned of $13,090 or $10,934 less 
than the proffered wage of $24,024 in 1998, $13,827.59 or $10,196.41 less than the proffered wage of 
$24,024 in 2001, and $19,734.38 or $4,289.62 less than the proffered wage of $24,024 in 2002. The 
petitioner is obligated to establish that it has sufficient funds to pay the difference between the wages actually 
paid to the beneficiary and the proffered wage. 
As an alternative 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, 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 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Tex. 
1989); K. C. P. Food Co., Inc. v. Savu, 623 F.Supp. 1080 (S.D.N.Y. 1985); Ubeda 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., the court held that 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 
CIS 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 also Elatos Restaurant Corp., 632 F. Supp. at 1054. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a petitioner's 
ability to pay a proffered wage. 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 liabilities." 
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 a corporation's end-of-year 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 
According to Barron's Dictionary of Accounting Terms 1 17 (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. 
WAC 02 199 50907 
Page 5 
current assets. The petitioner's net current assets in 1996 through 200 1 were $3 1,86 1, -$108,506, -$95,249, 
-$124,476, -$176,349, and -$130,289, respectively. The petitioner could have paid the difference between the 
actual wages paid to the beneficiary and the proffered wage in 1996 from its net current assets, provided the 
petitioner had not petitioned for an additional employee, but not in 1997 through 2001. 
The petitioner contends that it has successfully processed its payroll through ADP since 1996. However, the 
fax from ADP states that the petitioner did not begin processing its payroll through ADP until October 8, 
1997. In addition, even though the petitioner provided its 2002 payroll summary from ADP, that summary 
only shows a total amount of wages paid and does not indicate the number of employees, the employees' 
names, or their salaries. Furthermore, one year of payroll summaries do not demonstrate that the petitioner 
has consistently met its payroll requirements. The mere fact that the petitioner paid salaries is not conclusive 
evidence that the petitioner can pay the difference of $4,289.62 between the proffered wage of $24,024 and 
the actual wage paid to the beneficiary of $19,734.38, in addition to the salary of the beneficiary of the prior 
approved petition with a priority date of January 17, 1997. 
The petitioner asserts that since the petition, with a similar salary, for the beneficiary's brother was approved 
with the evidence provided in this case, that fact should be considered when determining the petitioner's 
ability to pay the proffered wage of $24,024 to the beneficiary. However, the director's decision does not 
indicate whether he reviewed the prior approval of the other immigrant petition. The AAO is not required to 
approve applications or petitions where eligibility has not been demonstrated, merely because of a prior 
approval that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 
593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged 
errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987); cert. 
denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the immigrant petition on behalf 
of the beneficiary's brother, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd. 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Finally, if the petitioner does not have sufficient net income or net current assets to pay the proffered salary, 
CIS may consider the overall magnitude of the entity's business activities. Even when the petitioner shows 
insufficient net income or net current assets, CIS may consider the totality of the circumstances concerning a 
petitioner's financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter 
of Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The district director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
WAC 02 199 50907 
Page 6 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In the instant case, in light of the petitioner's long and 
continuing business presence (since 1987), and since the difference between the proffered wage of $24,024 
and the actual wages paid to the beneficiary in the significant years are meager, even when including the 
salary of the additional employee with a similar priority date, when compared to the petitioner's continuous 
earnings of over $1.5 million yearly, the AAO finds that the petitioner could pay the proffered wage in 1997 
and continuing to the present. 
After a review of the record, it is concluded that the petitioner has established its ability to pay the salary 
offered as of the priority date of the petition and continuing until the beneficiary obtains lawful permanent 
residence. 
For the reasons discussed above and the assertions of counsel on appeal, the evidence submitted on appeal 
overcomes the decision of the director. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has been met. 
ORDER: 
 The appeal is sustained. The petition will be approved.