dismissed EB-3 Case: Automotive Repair

U.S. Citizenship 
and Immigration 
Services 
MATTER OF TKI-A-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15,2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. an automotive repair business. seeks to employ the Beneficiary as an automotive 
mechanic. It requests classification of the Beneficiary as a skilled worker under the third preference 
immigrant classification. Immigration and Nationality Act (the Act) section 203(b )(3 )(A)( i ). 
8 U.S.C. § 1153(b )(3)(A)(i). This employment-based immigrant classification allows a U.S. 
employer to sponsor a foreign national for lawful permanent resident status to work in a position that 
requires at least two years of training or experience. 
The Acting Director of the Nebraska Service Center denied the petition. concluding that the record 
did not establish. as required. that the Petitioner had the continuing ability to pay the proffered wage. 
On appeal, the Petitioner asserts that the Petitioner can establish its ability to pay based on the 
totality of its circumstances, including its net current assets. good reputation. and substantial 
capitalization. 
Upon de novo review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First. an employer obtains 
an approved labor certification fl·om the U.S. Department of Labor (DOL).
1 
See section 
212(a)(5)(A)(i) of the Act. 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification. the DOL 
certifies that there are insutlicient U.S. workers who are able. willing. qualified. and available for the 
offered position and that employing a foreign national in the position will not adversely affect the wages 
and working conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the 
Act. Second, the employer tiles an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act. 8 U.S.C. § 1154. Third. if USCIS approves the 
petition, the foreign national applies for an immigrant visa abroad or, if eligible, adjustment of status 
in the United States. 5,'ee section 245 of the Act. 8 U .S.C. § 1255. 
1 
The priority date of a petition is the date the DOL accepted the labor certification for processing. Se<! 8 C.F.R. 
~ 204.5(d). 
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Mal/er ofTKI-A-R-
II. ABILITY TO PAY THE PROFFERED WAGE 
The Director concluded that the Petitioner did not establish its continuing ability to pay the proffered 
wage from the petition's June 22. 2016, priority date onward. The proffered wage is $65.000 per 
year. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of' prospective emplo.ver to pay wage. Any petition tiled by or for an 
employment-based immigrant which requires an otTer 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proflered wage each year from a petition's priority date. Here. he record does not demonstrate that 
the Petitioner has paid the Beneficiary any wages from the priority date onward. 
The Petitioner appears to be a sole proprietorship, 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. 51ee 
Mafter (?l United Investment Group. 19 I&N Dec. 248. 250 (Comm ·r 1984 ). Therefore. the sole 
proprietor's adjusted gross income (AGI). assets. and personal liabilities are considered as part of the 
Petitioner's ability to pay. Sole proprietors report annual income and expenses from their business 
on their IRS Form I 040. U.S. Individual Income Tax Return. The business-related income and 
expenses are reported on Form I 040. Schedule C. and are carried forward to the first page of the tax 
return. Sole proprietors must show that they can cover their existing household expenses as well as 
pay the proffered wage out of their AGI or other available funds. ,\'ee l/heda ,, Palmer. 539 F. Supp. 
647,650 (N.D. Ill. 1982), a.f('d. 703 F.2d 571 (7th Cir. 1983). 
In this case, the sole proprietor supported himself in 2016. The sole proprietor's 2016 tax return 
retlects an AGI of $21.905, which is not sufficient to establish the Petitioner's ability to pay the 
$65,000 proffered wage in that year. Moreover. deducting the sole proprietor's annual living 
expenses from the AGI would further reduce the funds available to pay the prot1ered wage. but the 
2 The Petitioner listed its federal employer identification number (EIN) on the labor certification and Form 1-140, 
Immigrant Petition for AI ien Worker, as It submits two 2016 tax returns. one for a sole proprietorship 
(with the business name and EIN left blank) and one for a corporation (with a different EIN that the one claimed hv the 
Petitioner). Neither tax return lists the Petitioner's EIN. In any future proceedings. the Petiiioner must establi~h its 
con·ect FIN with independent, objective evidence. Maner o(llo, 19 I&N Dec. 582. 591-92 (BIA 1988) 
2 
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Malter ofTKJ-A-R-
Petitioner did not provide a list of the sole proprietor's personal expenses. 3 Without a detailed list of 
the expenses, we cannot determine the actual magnitude of the difference between the funds 
available and the Petitioner ' s wage obligation. As such. the Petitioner has not demonstrated its 
ability to pay based on its AGI. 
The Petitioner's 2016 Schedule C was prepared pursuant to the cash method of accounting, in which 
revenue is recognized when it is received, and expenses are recognized when they are paid. See 
Internal Revenue Service (IRS) Publication 538, https://www.irs.gov /publications/p538/ar02.html 
(last visited Jan. 26, 2018). On appeal, the Petitioner appears to claim that its results would have 
been different if it had used the accrual method of accounting.-t However. if revenues arc not 
recognized in a given year on the Petitioner's tax return pursuant to the cash method of accounting, 
the Petitioner may not use those revenues as evidence of its ability to pay the proffered wage during 
that year. Similarly, if expenses are recognized in a given year on the tax return, the Petitioner may 
not shift those expenses to a different year in an effort to show its ability to pay the proffered wage. 
Thus, the amounts shown on the Petitioner· s 2016 tax return shall be considered as they were 
submitted to the IRS. 
The Petitioner further asserts that it may rely on an unaudited balance sheet dated June 30, 2017, 
listing the assets and liabilities of the Petitioner. 5 It lists the current value of cars, motorcycles, and 
boats owned by the sole proprietor, as well as the value of the sole proprietor"s land investment in 
Poland. The record also contains titles and registrations for cars. motorcycles, and boats on that list,6 
as well as a copy of a deed for the property in Poland. However, the record docs not contain 
documented evidence of the value of these assets, such as appraisals or tax assessments. Without 
credible evidence of the ownership and value of all of the assets. we cannot determine whether the 
assets are suflicient to pay the proflered wage. The record also does not establish that the land 
investment in Poland is a readily liquefiable asset that is available to pay the protlered wage . 
.1 The sole proprietor"s itemized deductions on his 2016 tax return totaled $19 ,248. but this total is likely not 
representative of all of his expenses during that year. If the Petitioner pursues this matter further. it must submit a 
statement listing the sole proprietor's monthly household living expenses, with supporting documentary evidence, for 2016 
onward. Expenses include. but are not limited to: housing (rent or mortgage); food; car payments (whether leased or owned): 
insurance (auto. homeowner. health, life); medical: utilities (electric. gas. cable, phone. internet): credit cards: student loans: 
clothing; gardener: house cleaner: and any other recurring expenses. 
4 
Under the accrual method of accounting. revenue is recognized when it is earned. and expenses are recognized when 
they are incurred. !d. 
5 
Where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those financial 
statements must be audited. 8 C.F.R. § 204.5(g)(2). Unaudited tinancial statements arc the representations of 
management. The unsupported representations of management are not reliable evidence and are insufficient to 
demonstrate the ability to pay the proffered wage. Further, the Petitioner must establish its ability to pay the proffered 
wage trom 2016 onward, and the balance sheet is dated in 2017. See 8 C.F.R. § 204.5(g)(2). 
6 
N_ot all of the titles list the sole proprietor or the Petitioner as the owner. For example. one of the motorcycles is 
reg1stered to one of the boats is registered to one of the automobile s is registered to 
a~d ~ne of the auto~obiles is registered to The Petitioner must resolve this discrepancy in the 
record With mdependent. Objective evidence pointing to where the truth lies. Mal/er o(Ho. 19 I&N Dec. at 591-92. 
3 
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Malter of TKI-A-R-
The Petitioner also asserts that its bank account balance should be considered and submits a letter 
from indicating that the Petitioner had a balance of$85,911.63 in its account as of 
July 24, 2017. However, the Petitioner has not demonstrated that these funds were available in 
2016. the year in question. Moreover. the funds in the account are located in the sole 
proprietorship's business account. Any funds that were available in the account in 2016 were likely 
already shown on Schedule C ofthe sole proprietor's tax returns as gross receipts and included in the 
calculation of the Petitioner's AGI, which is insutlicient to establish the Petitioner's ability to pay. 
On appeaL the Petitioner asserts that it can establish its ability to pay based on the totality of its 
circumstances, including its net current assets. good reputation, and substantial capitalization. We 
may consider evidence of a petitioner's ability to pay based on the totality of the circumstances. 
including such factors as: the number of years it has conducted business: the growth of its business: 
its number of employees; the occurrence of any uncharacteristic business expenditures or losses: its 
reputation in its industry; whether a beneficiary will replace a current employee or outsourced 
service: or other evidence of its ability to pay a proffered wage. See ,\,fatter o(Sonegawa, 12 I&N 
Dec. 612 (Reg'] Comm'r 1967). 
In this case, the Petitioner asserts that it was established in 1988 and has only one employee. Unlike 
in Sonegawa, the record contains no evidence of the historical growth of the Petitioner's business: 
the occurrence of any uncharacteristic business expenditures or losses; or whether the Beneficiary 
will replace a current employee or outsourced service. Despite its arguments on appeaL the 
Petitioner does not submit evidence of its reputation in its industry, and as discussed above. the 
evidence it submits concerning its assets and funds in its bank account are not sufticient to 
demonstrate the Petitioner's possession of additional funds available to pay the proffered \Vage. 
Thus, assessing the totality of circumstances in this individual case. the record does not establish the 
Petitioner's continuing ability to pay the protTered wage. 
The Petitioner has not established its continuing ability to pay the protTered wage from the petition's 
priority date onward. 
Ill. THE BENEFICIARY'S QUALIFICATIONS 
Although not addressed by the Director in her decision, the Petitioner did not establish that the 
Beneficiary possessed the education and experience required by the labor certification as of the 
priority date. 
A beneficiary must meet all of the requirements of the offered positiOn set forth on the labor 
certification by the priority date ofthe petition. 8 C.F.R. § 103.2(b)(l), (12); Mutter o(Wing·.\. Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm 'r 1977). fn this case. the labor ce11ification 
requires automotive mechanic school (with a major in automotive repair) and 60 months of 
experience in the job otTered of automotive mechanic. 
The labor certification states that the Beneficiary qualifies for the offered position based on his 
4 
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Maller ofTKI-A-R-
associate's degree (with a major in mechanic-technician) received from 
in Poland in 1995: his experience as an automotive mechanic with 
in Poland from May 17, 2006, to June 28. 2011: and his experience as an automotive mechanic 
with in Poland from May I. 2000, to May 15, 2006. 7 
The record contains no evidence relating to the Beneticiary's education or experience. Therefore. 
the Petitioner has not established that the Beneficiary possessed the education and experience 
required by the labor certification as of the priority date. For this additional reason, the petition 
cannot be approved. 
IV. CONCLUSION 
The Petitioner did not establish its continuing ability to pay the proffered wage. Further. the 
Petitioner did not establish that the Beneficiary possesses the required education and experience f(n 
the offered job. 
ORDER: The appeal is dismissed. 
Cite as Mauer ofTK!-A-R- , ID# 986273 (AAO Feb. 15, 2018) 
7 
Evidence relating to qualifying experience must be in the form of a letter from a current or former employer and must 
include the name, address, and title of the writer, and a specific description of the duties performed by the beneficiary. 
See 8 C.F.R. § 204.5(1)(3). 
c