sustained EB-3 Case: Restaurant

1den-g data de1d to 
prevent desrly unwarranted 
invasion d personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
 65 
PUBLIC COPY 
9 FILE: Office: VERMONT SERVICE CENTER Date: 
EAC-03-261-53764 MAY 1 9 2006 
PETITION: 
 Petition for Alien Worker as a Slulled Worker or Professional Pursuant to Section 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. tj 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. 
J 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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. It seeks to employ the beneficiary permanently in the United States as an 
Ethnic 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 of this case is documented in 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 September 27, 2004 denial, the single issue in this case is whether the evidence 
establishes the petitioner's 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 Immigration and Nationality Act (the Act), 8 U.S.C. 8 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: 
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 either 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 profitnoss 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 petition's 
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 C.F.R. $ 204.5(d). The priority date in the instant 
petition is January 8, 2002. The proffered wage as stated on the Form ETA 750 is $13.00 per hour, which 
amounts to $27,040.00 annually. 
The AAO reviews appeals on a de novo basis. See Dorr v. I.N.S. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). 
The AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
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. $ 103.2(a)(l). The record in the instant case 
Page 3 
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). 
In the instant appeal, the petitioner submits a brief and additional evidence. Relevant evidence submitted on 
appeal includes documents relating to the value of the personal residence of the petitioner's owner, and a copy 
of an account statements for a bank account of the petitioner and an account statement for a line of credit 
account of the petitioner's owner. Evidence submitted previously includes copies of individual federal tax 
returns of the owner of the petitioner, which is a sole proprietorship. 
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. 
§ 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 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, on the Form ETA 750B, signed by the beneficiary on June 15, 2003, the beneficiary did not 
claim to have worked for the petitioner, and no other evidence in the record indicates that the beneficiary has 
worked for the petitioner. 
As another 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 for a given year, 
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, 719 F. Supp. 532 (N.D. Tex. 
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 (7' Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service 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 Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a sole proprietorship. The record contains copies of the Form 1040 
U.S. Individual Income Tax Returns of the petitioner's owner and his wife for 2001 and 2002. The 1-140 petition 
was submitted on September 20, 2003, and as of that date, the federal tax return of the petitioner's owner and his 
wife for 2002 was the most recent return available. The record before the director closed on August 24, 2004 
with the receipt by the director of the petitioner's submissions in response to a request for additional evidence 
(WE) which had been issued by the director on June 7, 2004. The WE did not request further evidence 
pertaining to the petitioner's tax returns, but requested evidence relevant to the identity and citizenship of the 
petitioner's owner and evidence relevant to the monthly household expenses of the petitioner's owner for the year 
2002. As of August 24, 2004, the federal tax return of the petitioner's owner for 2003 should have been 
available. However, a copy of that return was not submitted in prior to the director's decision, presumably 
because the WE did not request a copy of that return. 
Unlike a corporation, a sole proprietorship is not legally separate from its owner. 
 Therefore the sole 
proprietor's income and personal obligations are also considered as part of the petitioner's ability to pay. Sole 
proprietors report income and expenses from their businesses on their individual (Form 1040) federal tax 
returns each year. The business-related income and expenses are reported on Schedule C and are carried 
forward to the first page of the tax return. A sole proprietor must show the ability to cover his or her existing 
business expenses as well as to pay the proffered wage. In addition, the sole proprietor must show sufficient 
resources for his or her own support and for that of any dependents. Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). 
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioning entity 
structured as a sole proprietorship could support the owner, his spouse and five dependents on a gross income 
of slightly more than $20,000.00 where the beneficiary's proposed salary was $6,000.00, a figure which was 
approximately thirty percent (30%) of the petitioner's gross income. 
In the instant petition, the tax returns of the petitioner's owner are joint returns of the owner and his wife. 
Those returns show three dependents. Therefore the household size of the petitioner's owner is five persons. 
The record contains two statements of monthly household expenses of the petitioner's owner for 2002. The 
first statement is dated August 15, 2004, which was submitted in response to the RFE. That statement shows 
monthly expenses totaling $2,467.79. An amended statement of monthly household expenses dated October 
6, 2004 was submitted on appeal. In his brief counsel refers to the amended statement as a "corrected 
monthly expense statement." (Brief, October 28, 2004). The amended statement shows monthly expenses 
totaling $2,167.79. The line items on the two statements are identical, except that on the first statement 
monthly food and household supplies are stated as $600.00, while on the amended statement those expenses 
are stated as $300.00. For purposes of analysis, the amended statement will be used. Monthly expenses of 
$2,167.79 are equivalent to $26,013.48 on an annual basis. 
For a sole proprietorship, CIS considers net income to be the figure shown on line 33, Adjusted Gross 
Income, of the owner's Form 1040 U.S. Individual Income Tax Return. The owner's tax returns state 
amounts for adjusted gross income as shown in the following table. 
Wage increase 
Tax Adjusted Household Available needed to pay Surplus or 
year gross income expenses income the proffered wage deficit 
200 1 $61,105.00 not applicable not applicable not applicable not applicable 
2002 $55,678.00 $26,0 13.48 $29,664.52 $27,040.00* $2,624.52 
* The full proffered wage, since the record contains no evidence of any wage payments 
made by the petitioner to the beneficiary. 
The above infomation is sufficient to establish the petitioner's ability to pay the proffered wage in the year 
2002, which is the only year at issue in the instant petition. 
Counsel states that the petitioner's 2002 tax return shows business income of $67,787.00. Although that 
statement is accurate, the business income of the petitioner is fully credited in the above evaluation of the 
adjusted net income of the petitioner's owner and his wife. 
Counsel states that evidence submitted on appeal shows that the home of the petitioner's owner has a net 
value of approximately $431,862.00, and an available credit line of $150,000.00. Counsel also states that a 
bank statement shows more than $42,941 .OO on deposit. 
Since the petitioner is a sole proprietorship, the petitioner's owner is personally liable for the financial obligations 
of the petitioner. For this reason, assets held in the name of the petitioner's owner are relevant to the issue of the 
petitioner's ability to pay the proffered wage. Where a petitioner is a sole proprietorslup, the relevant tax returns 
are the Form 1040 U.S. Individual Income Tax Returns of the petitioner's owner. Unlike the Form 1120 
corporate income tax return, which contains a Schedule L balance sheet, a Form 1040 individual tax return 
includes no balance sheet showing the assets and liabilities of the taxpayer. For this reason, any separate evidence 
of the assets and liabilities of the petitioner's owner does not duplicate information already found on the Form 
1040 tax returns. 
The record contains a copy of deed dated April 21, 1997 showing a conveyance of a property on Sunset Lane, in 
Annandale, Virginia, to the owner and his wife for $200,000.00. The record contains a letter dated October 6, 
2004 from a real estate agent with an attached competitive market analysis for the Sunset Lane property. The 
agent finds that the market value of the property is $500,000.00. Attached to the letter are market value analyses 
of three comparable properties with information from a real estate data base. In her letter, the agent notes that the 
lot size of the Sunset Lane property is 87,120 square feet, or approximately two acres, and the agent states that 
because of the large lot size, the value of the property may be even higher than her $500,000.00 estimate. The 
record also contains a letter dated October 6, 2004 from a banker with the Bank of America which states that the 
petitioner's owner and his wife have a mortgage with that bank with a balance of $68,137.53. 
The record also contains a copy of a statement equity line of credit dated February 10, 2004, for a total line of 
credit of $150,000.00, and available credit of $150,000.00. Although the line of credit itself is not an asset of the 
petitioner's owner, the fact that it is an equity line of credit provides support for counsel's assertion that the 
petitioner's owner and his wife have substantial equity value in their home and that they have the ability to draw 
on that value if needed. 
The deed indicates that the petitioner's owner and his wife purchased the house in 1997, therefore they already 
owned it as of 2002, the year of the priority date. 
The documents pertaining to the personal residence of the petitioner's owner and his wife provides further 
evidence to help establish the petitioner's ability to pay the proffered wage. 
The record also contains a copy of a bank statement dated Augusts 10, 2004 for an account of the petitioner's 
owner and his wife showing an ending balance of $1,870.32 and a copy of a business checlung account statement 
dated September 30,2004 of the petitioner's owner and his wife showing an ending balance of $42,941.35. 
Since each of those account statements covers only one month, the bank account statements provide no 
significant additional support to help establish the petitioner's ability to pay the proffered wage. 
Nonetheless, based on the foregoing analysis, the evidence in the record is sufficient to establish the petitioner's 
ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence. 
Page 6 
In her decision, the director correctly stated the petitioner's net income in 2002. The director found that that 
amount was insufficient to establish the petitioner's ability to pay the proffered wage in those years. The 
record before the director did not contain the amended statement of monthly household expenses for the 
petitioner's owner, which shows slightly lower monthly expenses than the statement submitted in response to 
the RFE. Also, the record before the director did not include the documents discussed above pertaining to the 
value of the personal residence of the petitioner's owner and his wife. Those documents were submitted for 
the first time on appeal. The decision of the director to deny the petition was correct, based on the evidence in 
the record before the director. 
It may be noted that an analysis based on the first statement of monthly household expenses of the petitioner's 
owner would indicate that the available income to pay the proffered wage would have been about $1,000.00 less 
that the proffered wage. However, the other evidence in the record, notably the documents pertaining to the value 
of the personal residence of the petitioner's owner and his wife, would still be sufficient to demonstrate the 
petitioner's ability to pay the proffered wage. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal are 
sufficient to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. 
The petitioner has met that burden. 
ORDER: 
 The appeal is sustained. The petition is approved.