dismissed EB-3 Case: Alteration And Shoe Repair

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U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. 3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
b G 
FILE: - Office: TEXAS SERVICE CENTER 
SRC-04-137-5 1936 
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 1 53(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. 
~o6er-t P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is in the business of alteration and shoe repair. It seeks to employ the beneficiary permanently 
in the United States as an alteration tailor. 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 February 8, 2005, denial, the case was denied based on the petitioner's failure to 
demonstrate its ability to pay the proffered wage from the priority date of the labor certification 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. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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 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 
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 
9 204.5(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. 
Comm. 1977). 
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. 4 103.2(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). 
Page 3 
Here, the Form ETA 750 was accepted for processing by the relevant office within the DOL employment 
system on January 16, 2003. The proffered wage as stated on the Form ETA 750 is $19,864 per year,2 40 
hours per week. The labor certification was approved on October 22, 2003, and the petitioner filed the 1-140 
on the beneficiary's behalf on April 15, 2004. Counsel listed the following information on the 1-140 Petition 
related the petitioning entity: established: July 1, 2000; gross annual income: $69,289.00; net annual income: 
$55,113; and current number of employees: 2; salary: $382.00 per week. 
On November 4, 2004, the Service Center issued a Request for Additional Evidence ("RFE) for the 
petitioner to submit additional evidence that the employer had the ability to pay the proffered wage, and that if 
the business were a sole proprietorship or partnership to submit documentary evidence of the owner's U.S. 
citizenship, or permanent residence. In response, the petitioner submitted bank statements, and cited to a case 
where bank statements were accepted to show the ability to pay the proffered wage. The petitioner also 
submitted unaudited balance sheets, profit and loss statements, and proof of the owner's U.S. citizenship. 
The director determined that the evidence submitted in response to the RFE was insufficient to demonstrate 
that the petitioner's ability to pay the beneficiary the proffered wage, and denied the case on February 8, 
2005. The petitioner appealed and the matter is now before the AAO. 
We will first examine the petitioner's ability to pay, and then consider the petitioner's additional arguments 
on appeal. The evidence in the record of proceeding regarding the petitioner's ability to pay includes the 
petitioner's Form 1040 for the year 2003, business bank savings and checking account statements for the 
years 2003 and 2004, a "personal balance sheet," an affidavit from the owner, W-2 statements for his wife, 
whom he says will stop working when the beneficiary arrives in the U.S. and the beneficiary will replace her. 
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. 
On Form ETA 750B, signed by the beneficiary on September 30, 2002, the beneficiary did not list that she 
was employed with the petitioner. Both the ETA 750 and the 1-140 reflect that the beneficiary still is in her 
home country and will obtain her immigrant visa abroad, when available, if the case is approved. 
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 Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 
1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 71 9 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), afd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner is a sole proprietor, a business in which one person operates the business in his or her personal 
capacity. Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a corporation, a sole proprietorship does not 
exist as an entity apart from the individual owner. See Matter of United Investment Group, 19 I&N Dec. 248, 
2 
 The ETA 750 Form originally listed $1 8,720, but was raised to $1 9,864 prior to certification. 
Page 4 
250 (Comm. 1984). Therefore, the sole proprietor's adjusted gross income, assets and personal liabilities 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 return 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. Sole 
proprietors must show that they can cover their existing business expenses as well as pay the proffered wage 
out of their adjusted gross income or other available funds. In addition, sole proprietors must show that they 
can sustain themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 
F.2d 571 (7"' 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 himself, his spouse and five dependents on a gross income of 
slightly more than $20,000 where the beneficiary's proposed salary was $6,000 or approximately thirty 
percent (30%) of the petitioner's gross income. 
In the instant case, the sole proprietor supports a family of four, including himself, his wife, and two 
dependent children in Middleburg, Florida. The tax returns reflect the following information for the 
following years: 
If we reduced the owner's adjusted gross income (AGI) by $19,864, the proffered wage that the petitioner 
must demonstrate that it can pay, the owner would be left with an adjusted gross income of $23,315 in 2003 
to support a family of four. The owner submitted a "personal balance sheet," which outlined savings, assets, 
and liabilities. However, the "balance sheet" was unsupported by any further documentary evidence, such as 
actual bank statements, mortgage statements, or property assessments, which might provide independent 
verification of the assets, which they assert that they have. Without objective evidence, we cannot conclude 
that the petitioner can demonstrate that it can pay the beneficiary the proffered wage, and support a family of 
four with the income remaining. 
The petitioner submitted additional evidence regarding its ability to pay the proffered wage. Counsel has 
submitted the petitioner's business bank statements for each month for the calendar years 2003, and 2004. 
Counsel contends that the statements demonstrate that the petitioner had enough money in the bank to pay the 
beneficiary's proffered wage on a monthly basis. Bank statements, however, are not among the three types of 
evidence listed in 8 C.F.R. 9 204.5(g)(2) as acceptable to establish a petitioner's ability to pay a proffered wage. 
While ths regulation allows for consideration of additional material "in appropriate cases," the petitioner in this 
case has not demonstrated why the documentation specified at 8 C.F.R. 3 204.5(g)(2) is inapplicable or otherwise 
does not provide an accurate financial picture of the petitioner. Further, no evidence was submitted to 
demonstrate that the hds reported on the petitioner's bank statements reflect additional available funds to the 
amounts listed on the petitioner's tax return, such as the cash represented by the petitioner's gross income on 
Schedule C of its tax return. 
2003 
Counsel cites to a prior AAU case, In re X, 13 Immig. Rptr. B2-259 (Oct. 7, 1994), for the proposition that bank 
statements may be accepted as proof of ability to pay the beneficiary's wage. The petitioner in In re Xwas able to 
demonstrate that it maintained a monthly bank balance of $41,770 for the entire year of 1993. The beneficiary's 
priority date was January 19, 1993, and the proffered wage was $34,500. The monthly bank balance therefore 
Gross Receipts 
(Schedule C) 
$69,289 
Petitioner's 
AGI (1040) 
$43,179 
Wages Paid 
(Schedule C) 
$20,400 
Net profit from 
business 
(Schedule C) 
$4,608 
Page 5 
consistently exceeded the annual proffered wage. The petitioner had paid the beneficiary $24,960 in wages in 
1993, only $9,540 less than the proffered wage. The MU concluded that the foregoing was sufficient to 
demonstrate the petitioner's ability to pay the proffered wage. In the case at hand, however, the petitioner has not 
demonstrated a monthly bank balance, which consistently exceeded the annual proffered wage. Additionally, we 
note that tax returns provide a more accurate picture of the petitioner's business, since tax returns reflect the 
petitioner's assets and liabilities, whereas bank statements similarly do not reflect liabilities. 
The petitioner additionally submitted an unaudited "balance sheet" reflecting "total liabilities and net worth" 
in the amount of $504,750. The balance s 
 ax preparer" who signed the sheet, was 
"compiled from information submitted by 
 and from income statements and tax 
records." We note that as a sole proprietorship, information regarding the owner's assets and liabilities would 
be accepted. However, the balance sheet was compiled based on the representations of the owners with no 
supporting documentation attached to independently corroborate the information. Therefore, the balance 
sheet is not compelling evidence to lead us to conclude that the petitioner has demonstrated its ability to pay 
the proffered wage. 8 C.F.R. 5 204.5(g)(2) provides that where a petitioner relies on financial statements to 
demonstrate its ability to pay the proffered wage, those financial statements must be audited. Nothing 
indicates that the statement compiled was audited in conformance with 8 C.F.R. 5 204.5(g)(2). 
In addition to the owner's unaudited balance sheet, a tax practitioner had additionally prepared other 
unaudited profit and loss statements to reflect the business' revenues. We note similar objections as above, 
that the statements were complied based on the representations of the owners with no supporting 
documentation attached to independently corroborate the information, and, therefore, the statements are not 
compelling evidence to lead us to conclude that the petitioner has demonstrated its ability to pay the proffered 
wage. 8 C.F.R. 5 204.5(g)(2) provides that where a petitioner relies on financial statements to demonstrate its 
ability to pay the proffered wage, those financial statements must be audited. 
The statements provided additionally conflict with other evidence regarding amounts paid to the owner's 
wife. A 2004 profit and loss statement provides that the owner's wife was paid wages in the amount of 
$15,300. Elsewhere, the owner asserts that his wife was paid $20,000 for the year 2004. A 2003 profit and 
loss statement reflects that the owner paid his wife $16,000. The owner signed an affidavit, which provides 
that he paid his wife $20,400, and submitted a hand written W-2 form as evidence in support. The Service 
Center decision further notes another close to $9,000 discrepancy in alleged net profits between the tax 
returns and the statements prepared. Based on a number of inconsistencies in the evidence, and the unaudited 
nature of the statements, we cannot conclude that the statements provided accurately verify the petitioner's 
ability to pay. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988), which states: "Doubt raised on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition." Further, "It is incumbent on the petitioner to 
resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or 
reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies 
will not suffice." Matter of Ho, 19 I&N Dec. at 591 -592. 
Additionally, the owner asserts and has provided an affidavit that states his wife is presently working for him, 
and that his wife will stop working upon the beneficiary's arrival, as his wife "does not wish to be employed 
as an alteration tailor. In support, the petitioner forwarded a copy of his wife's 2003 1099 showing earnings 
in the amount of $20,400. We note that the 1099 Form is hand written. Further, the petitioner has submitted 
a tax return reflecting that it was "jointly filed." The 2003 tax return does not reflect the income stated on the 
hand written W-2. The 2003 tax return reflects only the owner husband's reported W-2 income. 
Page 6 
In a case where the petitioner has established that the beneficiary will be replacing another worker performing 
the duties of the proffered position, the evidence in the record must name these workers, and contain 
competent evidence of the wages paid and of full-time employment, as well as verify that the duties are those 
of the proffered position as set forth on the ETA 750. Based on the conflict in the evidence regarding the 
amount paid to the owner's wife, and that the wife's position and title have not been identified, the petitioner 
has not established by competent evidence the amounts paid to the worker who the beneficiary will replace 
and that the position involves the same duties as those set forth in the Form ETA 750. The petitioner has not 
documented the position title, and job duties that the owner's wife performs. 
Further, the affidavit, which the owner provided states that he lacks help and is unable to take on more work. 
If the owner replaces his wife with the beneficiary, he will still have the same amount of workers and will not 
be able to take on more work. We might surmise that if the owner needed additional help, despite his 
statement that he would replace his wife, that the beneficiary might be an additional worker, rather than a 
replacement worker. 
The documentation submitted raises numerous inconsistencies in the evidence. See Matter of Ho, 19 I&N 
Dec. 582,591 (BIA 1988), which states: "Doubt raised on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition." Further, "It is incumbent on the petitioner to resolve any inconsistencies in the record by 
independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies will not suffice." Matter of Ho, 19 I&N Dec. at 
591-592. 
Based on the foregoing, the petitioner has failed to demonstrate its ability to pay the proffered wage from the 
time of the priority date until the beneficiary obtains permanent residence. 
Additionally, a second point although not raised in the director's denial, was the petitioner's failure to 
document that the beneficiary had all of the required education, training, and experience as required in the 
certified ETA 750. An application or petition that fails to comply with the technical requirements of the law may 
be denied by the AAO even if the Service Center does not identi@ all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 
F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO 
reviews appeals on a de novo basis). 
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 (Cornm. 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 (9th Cir. 1983); Stewart Infra-Red Commissary 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. tj 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. 3 204.5(d). 
Page 7 
To document a beneficiary's qualifications, the petitioner must provide evidence in accordance with 
8 C.F.R. 9 204.5(1)(3): 
(ii) Other documentation- 
(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 slulled 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 ths 
classification are at least two years of training or experience. 
The beneficiary must demonstrate that he had the required skills by the priority date of January 16, 2003. On 
the Form ETA 750A, the "job offer" for Alteration Tailor states that the position requires two years of 
experience in the job offered with job duties partially including: "Alters clothing to fit individual customers 
and repairs some defective garments, following alteration or repair marks on garment. Examines tags to 
ascertain necessary alteration." The petitioner listed that no education was required in 14, and did not list any 
other special requirements for the position in Section 15. 
On the Form ETA 750B, the beneficiary listed prior experience as: Chintana Dressmakers and Designers 
Academy. No Address was listed. The beneficiary listed that she was employed from 1999 to April 30, 
2002. The beneficiary did not list the exact start day and month that she began her employment, and did not 
any other employment. 
As evidence to document the beneficiary's qualifications, the petitioner submitted a letter from Chintana 
Dressmakers & Designers Academy in Thailand, which states that - . . . has held 
the position of alterations tailor in my institution from the year of 1999 until April 30, 2002." The letter 
additionally provided the beneficiary's-job duties for her employment at that time. ' 
The letter submitted is deficient in that it does not list whether the position was full-time or part-time, or the 
number of hours worked per week, as well as the exact start date, month, day, year format of her employment. 
Based on the one letter provided, we cannot conclude that the beneficiary has met the experience 
requirements set forth on the labor certification of two years as a Alteration Tailor. If the beneficiary began 
employment in December 1999 and ended employment on April 30, 2002, and any of the experience was 
part-time, the beneficiary would not have two years of experience. The letter as provided is not sufficient to 
confirm the beneficiary's prior experience for the position. 
Therefore, the petition was properly denied for failure to demonstrate that the petitioner could pay the 
beneficiary the proffered wage beginning on the priority date until the beneficiary obtains permanent 
residence. In addition, the petitioner has not demonstrated that the beneficiary met all the requirements of the 
position offered. 
Page 8 
Accordingly, the petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. 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. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.