Mr. John A. Nicelli Esq., filed an I-140 visa petition for an individual whose labor certification was approved. The position was for a Italian Style cook.   The original petition was denied claiming that the employer did not have sufficient funds to pay the prevailing wage. The founder of the business had passed away during the labor certification process. As a result of his death his wife and daughter took control of the business. With the death of the restaurants' founder and the economic crisis affecting many restaurant businesses receipts were down but the founder's wife remained on the payroll. After receipt of the denial Mr. Nicelli filed to reconsider the denial of the petition arguing that the U.S.C.I.S. failed to consider the employers salary as being available revenue in the future and the total assets of the business. This motion was denied. Mr. Nicelli then filed for a second motion to reconsider and provided numerous financial records of the business verifying the employer's ability to pay the offered wage. The second motion was denied based on the same reasoning that the employer did not demonstrate their ability to pay the offered wage. Despite this Mr. Nicelli would not give up and filed an appeal of the second denied motion. After considering all the arguments made by Mr. Nicelli the U.S.C.I.S. finally agreed that Mr. Nicelli's reasoning was correct and approved the petition filed. Both the employer and the beneficiary were ecstatic. Once the application for adjustment of status is approved this immigrant became a lawful permanent resident. (Oct. 2008)