dismissed EB-3 Case: Automotive Service

n*4 
U.S. Department of Homeland Security 
iafiing 
0" ' -' ?M to 
 20  ass. Ave., N.W., Rm. 3000 
7Tanted 
Washington, DC 20529 
in-011 of perhAuh U.S. Citizenship 
and Irnmigatlon 
Services 
Ofice: VERMONT SERVICE CENTER 
 D~~~:APR 0 2 2881 
EAC 04 074 500 16 
PETITION: 
 Immigrant Petition for Alien Worker as .an Other, Unskilled Worker Pursuant to $203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3) 
ON BEHALF OF PETITIONER: 
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 
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 dismissed. 
The petitioner is a gas station and automobile workshop. It seeks to employ the beneficiary permanently in 
the United States as a "gas attendent cum cashier". As required by statute, the petition is accompanied by a 
Form ETA 750, Application for Alien Employment Certification, approved by the Department of Labor. 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. The director denied the 
petition accordingly. 
The record shows that the appeal is properly filed and 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. 
As set forth in the director's January 3, 2005 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 lawhl permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 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 wder 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. 
Section 203(b)(3)(A)(iii) of the Act, 8 U.S.C. $ 1153(b)(3)(A)(iii) 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 unskilled labor, 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. 9 204.5(1)(3) also provides 
(ii) Other docurnentation-- 
(D) Other Worker. If the petitioner is for an unskilled (other) worker, it must be 
accompanied by evidence that the alien meets any educational, training and 
experience, and other requirements of the labor certification. 
The regulation 8 C.F.R. $ 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employrnent- 
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 lawM 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 C.F.R. 
4 204.5(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 Wingk Tea House, 16 I&N Dec. 158 (Act. Reg. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $400 a week, or $20,800 per year. The Form ETA 750 does not indicate that the position requires any 
experience.' 
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 appeaL2 On appeal, counsel 
submits a statement. Other relevant evidence in the record includes a Schedule C for the petitioner's Form 
1040 for tax year 2001, as well as the beneficiary's W-2 form for tax year 2001. This document indicates the 
petitioner paid the beneficiary $14,400 in tax year 2001. The record does not contain any other evidence 
relevant to the petitioner's ability to pay the wage as of the 2001 priority date or any other subsequent year. 
The evidence in the record of proceeding shows that the petitioner is structured as a sole proprietorship.3 On 
the petition, the petitioner claimed to have been established on February 9, 1978, to have a gross annual 
' Although the director did not address this issue in his decision, the AAO notes that the record is confused as 
to the visa petition classification requested by the petitioner in the initial 1-140 petition. The petitioner 
submitted the 1-140 petition under the classification of professionaVskilled worker, while the Form ETA 750 
indicates that no experience is needed to perform the duties of the proffered position. Further, although the 
Form ETA 750, Part B, that identifies the beneficiary's work experience, notes three years of work experience 
as a gas station attendant in Elmont, New York, the record contains no further verification of this work 
experience. For this reason, the AAO previously listed the regulatory guidance for both the skilled worker 
classification (Section 203(b)(3)(A)(i)), and other workers classification, (Section 203(B)(3)(A)(iii)). 
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, 1 9 I&N Dec. 764 (BIA 1 988). 
The AAO notes that the Schedule C for the petitioner's Form 1040 submitted to the record identifies the sole 
proprietor as Anton's Car Care Personnel, and the sole proprietor's principal business as personnel 
management. This statement further confuses the record. The beneficiary's 2001 W-2 form is also issued by 
Anton's Car Care Personnel. It is also noted that the director requested the petitioner's complete IRS 1040 tax 
return for 2001 in his request for further evidence. The regulation at 8 C.F.R. 4 204.5(g)(2) states that the 
director may request additional evidence in appropriate cases. Although specifically and clearly requested by 
the director, the petitioner declined to provide a complete copy of its 2001 1040 tax return that would have 
demonstrated the sole proprietor's adjusted gross income and Mer reveal its ability to pay the proffered 
wage. The petitioner's failure to submit these documents cannot be excused. The failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. 4 
103.2@)(14). 
Page 4 
income of four million dollars, and to employ fifteen workers. On the Form ETA 750B, signed by the 
beneficiary on February 9,2003, the beneficiary did not claim to have worked for the petitioner. 
On appeal, counsel asserts that the beneficiary only worked for the petitioner for part of the year in tax year 
2001, and thus the beneficiary's salary is less than the proffered wage of $20,400. Counsel also asserts that 
based on the world events affecting New York and Long Island in 2001, most businesses suffered losses in 
tax year 2001. Counsel also states that the petitioner has other business locations, which are more profitable, 
and that the petitioner's principal can use the income from other businesses to compensate for any of the 
instant petitioner's income deficiencies. Counsel states that the 111 time employment of the beneficiary will 
prompt more profits for the petitioner, as the beneficiary will improve the overall appearance of the store and 
sale items.4 Although counsel indicated on the I-290B appeal that he was submitting further evidence to the 
record, the AAO has received no further evidence. The AAO did send a FAX to the attorney of record 
inquiring as to whether counsel had submitted any further evidence on February 13,2007. The AAO received 
no reply to this FAX. Thus, the AAO will examine the instant petition based on the record as presently 
constituted. 
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 1awfb.l 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. 9 204.5(g)(2). In 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (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 during a given period, CIS will first 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. In the 
instant case, the petitioner has established that it employed the beneficiary in the priority year 2001; however, 
it did not establish that it paid the beneficiary the 111 proffered wage fiom the priority date in 2001 onwards. 
Thus, the petitioner would have to establish its ability to pay the difference between the beneficiary's actual 
wages of $14,400 in 2001, and the proffered wage of $20,800 during tax year 2001. With regard to 
subsequent years following the priority date year of 2001, the petitioner has to establish its ability to pay the 
entire proffered wage. 
4 
 Against the projection of future earnings, Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. 
Comm. 1977) states: 
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could not 
pay the offered wage at the time the petition was filed, should subsequently become eligible to 
have the petition approved under a new set of facts hinged upon probability and projections, even 
beyond the information presented on appeal. 
Page 5 
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, 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 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thornburgh, 719 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), affd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner is 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. See Matter of United Investment Group, 19 I&N 
Dec. 248, 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 fi-om 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), afld, 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 record does not contain the petitioner's Form 1040 for the priority year 2001 or for any 
other relevant year. Thus, the petitioner cannot satisfy the regulatory criteria outlined in 8 C.F.R. 
$204.5(g)(2) with regard to the submission of either copies of federal tax returns, audited financial statements 
or annual reports to establish a petitioner's ability to pay the proffered wage. As a consequence, the AAO 
cannot examine the sole proprietor's ability to pay the proffered wage as of the 2001 priority date and to the 
present. Thus, the director's decision must be affied and the petition denied. 
Nevertheless, the AAO, for illustrative purposes, will examine the Schedule C submitted to the record. As 
stated previously, the sole proprietor did not submit its complete federal tax return for tax year 2001, namely 
Form 1040 with all accompanying schedules and attachments. Thus, the sole proprietor cannot establish the 
actual number of persons the sole proprietor supported as of the 2001 priority date or the number of persons 
he currently supports. The sole proprietor's Schedule C for tax year 2001, the only evidence submitted with 
regard to the petitioner's financial resources, reflects the following information for tax year 2001 : 
Petitioner's gross receipts or sales (Schedule C) 
 $8 1,064 
Petitioner's wages paid (Schedule C) 
 $73,299 
Petitioner's net profit fiom business (Schedule C) $ 300 
In 2001, as noted previously, based on the lack of suficient evidence submitted to the record, the sole 
proprietor's adjusted gross income is unknown. Thus the sole proprietor cannot establish that it has sufficient 
Page 6 
adjusted gross income to pay the difference between the beneficiary's actual wages and the proffered wage, as 
well as support himself and any other dependents. As stated previously, the record contains no mher 
evidence as to the sole proprietor's number of dependents, household monthly expenses and reported adjusted 
gross incomes for any subsequent relevant year. Thus, the sole proprietor cannot establish its ability to pay the 
entire proffered wage in any year subsequent to the 2001 priority year. 
On appeal, counsel asserts that the sole proprietor suffered losses based on the events of September 11,2001. 
Counsel also asserts that the sole proprietor owns other businesses and as such, the sole proprietor can use the 
financial resources of these other businesses to pay the difference between the beneficiary's wages and the 
proffered wage in priority year 2001, or the entire proffered wage in subsequent years. However, counsel 
submits no further evidentiary documentation to fbrther substantiate these assertions. The assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1 972)). 
With reference to the events of September 11, 2001, the record of proceeding contains no evidence 
specifically connecting the petitioner's business decline to the events of September 11, 2001, not even a 
statement from the petitioner showing a loss or claiming difficulty in doing business specifically because of 
that event. A mere broad statement by counsel that, because of the nature of the petitioner's industry, its 
business was impacted adversely by the events of September 1 1, 2001, cannot by itself, demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date. Rather, such a general 
statement merely suggests, without supporting evidence, that the petitioner's financial status might have 
appeared stronger had it not been for the events of September 1 1,2001 
Counsel's assertion with regard to the sole proprietor's financial interests in other businesses is also not 
persuasive. If counsel refers to other businesses that the sole proprietor owns, these businesses would be 
represented by additional Schedules C in the petitioner's 2001 1040 tax form. The sole proprietor's adjusted 
gross income on page 1 of the Form 1040 would reflect the total net profits from all the Schedules C, not just 
the business identified on the instant petition as Anton's Car Care Center, Ltd. The record does not reflect any 
other businesses contained under the sole proprietor umbrella in the instant petition. 
Furthermore, if counsel refers to the sole proprietor's financial interests in a distinct corporation separate from 
the sole proprietor's business identified in the 2001 Schedule C submitted to the record, such a corporation is 
a separate and distinct legal entity from its owners and shareholders, and the assets of its shareholders or of 
other enterprises or corporations cannot be considered in determining the petitioning corporation's ability to 
pay the proffered wage. See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980). In a 
similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 @.Mass. Sept. 18, 2003) stated, "nothing in 
the governing regulation, 8 C.F.R. § 204.5, pennits [CIS] to consider the financial resources of individuals or 
entities who have no legal obligation to pay the wage." 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
§ 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.