dismissed EB-3 Case: Clothing Alteration

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 30, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sole proprietorship that provides dry cleaning and clothing alteration services, seeks 
to employ the Beneficiary as an alteration tailor. It requests classification of the Beneficiary as a 
skilled worker under the third preference immigrant category. See Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This category allows a U.S. business 
to sponsor a foreign national with at least 2 years of training or experience for lawful permanent 
resident status. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
record did not establish the Petitioner's ability to pay the proffered wage. 
The matter is now before us on appeal. The Petitioner asserts its ability to pay and submits 
additional evidence of the financial assets of its sole proprietors. 
Upon de novo review, we will dismiss the appeal. . 
I. LAW AND ANALYSIS 
A. Employment-Based Immigration Process 
Employment-based immigration is generally a three-step process. First, a prospective U.S. employer 
must obtain an approved ETA Form 9089, Application for Permanent Employment Certification 
(labor certification), from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the 
Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, the employer must tile a Form 1-140, Immigrant Petition for 
Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 
8 U.S.C. § 1154. Finally," if USCIS approves the petition, a foreign national may apply for an 
immigrant visa abroad or, if eligible, adjustment of status in the United States .. See section 245 of 
the Act, 8 U.S.C. § 1255. 
Matter of M-C-
By approving the labor certification in this case, the DOL certified that U.S. workers are not able, 
willing, qualified, and available for the offered position of alteration tailor. See section 
212(a)(5)(A)(i)(I) ofthe Act. The DOL also certified that the Beneficiary's employment in the position 
will not hurt the wages and working conditions of U.S. workers with similar jobs. See section 
212(a)(5)(A)(i)(II). 
In these proceedings, we must determine whether the Beneficiary meets the requirements of the 
offered position certified by the DOL. We must also determine whether the Petitioner and the 
Beneficiary qualify for the requested immigrant classification, including whether the Petitioner 
demonstrated its ability to pay the proffered wage. See. e.g. Tongatapu Woodcrafi Haw ... Ltd. v 
Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (holdingthat the immigration service "makes its own 
determination of the alien's entitlement to [the requested] preference status"). 
B. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. 
In this case, the labor certification states the proffered wage of the offered position of alteration 
tailor as $40,435 per year. The petition's priority date is August 6, 2013. This is the date the DOL 
accepted the accompanying labor certification application for processing. See 8 C.F.R. § 204.5(d) 
(explaining how to determine a petition's priority date). 
On appeal, required evidence of the Petitioner's ability to pay the proffered wage in 2016 was not 
yet available. We will therefore consider the Petitioner's ability to pay only through 2015. 
The Petitioner is a sole proprietorship owned by a married couple. Thus, we may consider the 
couple's adjusted gross income and personal assets in determining the Petitioner's ability to pay the 
proffered wage. See Matter (~[United lnv. Grp., 19 I&N Dec. 248,250 (Comm'r 1984) (finding that 
a sole proprietorship is not a separate, legal entity from its owners). In addition to demonstrating an 
ability to pay a proffered wage, sole proprietors must establish a simultaneous ability to support 
themselves and any dependents. See Ubeda v. Palmer, 539 F. Supp. 647, 650 (N.D. Ill. 1982), aff'd, 
703 F.2d 571 (7th Cir. 1983) (finding that a sole proprietor did not establish his ability to pay a 
proffered wage while supporting a spouse and five children). 
In determining ability to pay, we first examine whether a sole proprietorship paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a sole proprietorship did not pay the full 
proffered wage each year, we next examine whether its proprietors generated sufficient annual 
amounts of adjusted gross income and personal assets to pay any difference between the annual 
proffered wage and the wages paid. If the proprietors' amounts of adjusted gross income and 
personal assets are insufficient, we may also consider the overall magnitude of a sole 
2 
Matter of M-C-
proprietorship's business activities. See Matter ol Sonegawa. 12 I&N Dec. 612, 614-15 (Reg'! 
Comm'r 1967).1 
Here, the Petitioner did not submit evidence of its employment of the Beneficiary. The record 
therefore does not establish its ability to pay the proffered wage based on payments to the 
Beneficiary. 
The Petitioner submitted copies of joint federal income tax returns of its sole proprietors for 2013, 
2014, and 2015. The tax returns reflect adjusted gross income amounts of $46,060 for 2013, 
$45,002 for 2014, and $56,960 for 2015. 
The annual amounts of adjusted gross income exceed the proffered wage of $40,435. To support 
themselves and two dependents, however, the Petitioner's sole proprietors demonstrated that they 
spent $33,299.88 in both 2013 and 2014, and $33,826.92 in 2015. After subtracting these living 
expenses from the adjusted gross income amounts, the record indicates remaining income of 
$12,760.12 in 2013, $11,702.12 in 2014, and $23,133.08 in 2015. These annual amounts do not 
equal or exceed the proffered wage. The record therefore does not establish the Petitioner's ability 
to pay based on the adjusted gross income of its sole proprietors. 
The Petitioner further submitted evidence of a business checking account that, by 2016. contained 
more than $27,000. But as a sole proprietor conceded, the income amounts on the couple's tax 
returns included funds in that account. Thus, the checking account funds do not represent additional 
monies available to pay the proffered wage. 
The record also indicates the sole proprietors' possession of three certificates of deposits (COs) and 
a savings account. Evidence indicates that these accounts totaled $63,733.32 and $70,147.28 at the 
end of 2013 and 2014, respectively, and $72,212.19 in 2015.2 For 2013, 2014, and 2015, the 
position's proffered wages totaled $121,305, while the remaining incomes of the sole proprietors 
totaled $47,595.32. Subtracting the totals of remaining incomes from proffered wages, the record 
indicates a shortfall of $73,709.68. This amount exceeds the total funds in the sole proprietors' CDs 
and saving accounts in 2015. Thus, based on examinations of the Petitioner's payments to the 
Beneficiary and the adjusted gross incomes and personal assets of its sole proprietors, the record 
does not establish its continuing ability to pay the proffered wage from the petition's 2013 priority 
date through 2015. 
As previously indicated, we may also consider a petitioner's ability to pay a proffered wage beyond 
the adjusted gross incomes and personal assets of its sole proprietors. Pursuant to Sonegawa, we 
1 
Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g. River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Estrada- Hernandez v. Holder, I 08 F. Supp. 3d 936, 942-43 
(S.D. Cal. 2015); Rivzi v. Dep 't o.f Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), aff"d, 627 Fed. App'x. 
292 (5th Cir. 20 15). 
2 The record indicates the balances of two CDs and the savings account from only the first half of 20 15. 
3 
~~~~~~~~--~- ----------
Matter of M-C-
may consider such factors as: the number of years a petitioner has conducted business; its number of 
employees; the growth of its business; the occurrence of uncharacteristic expenses or losses; its 
reputation in its industry; a beneficiary's replacement of a current employee or outsourced service; 
or other evidence of its ability to pay the proffered wage. 
In this case, the record indicates the Petitioner's continuous business operations since 2009. Its tax 
returns also indicate an increase in annual revenues from 2013 to 2015. Besides one of the sole 
proprietors, however, the record does not establish the Petitioner's employment of any workers. 
Unlike in Sonegawa, the record also does not indicate the Petitioner's incurrence of uncharacteristic 
expenses or losses, or its possession of an outstanding reputation in its industry. In addition, the 
record does not indicate the Beneficiary's replacement of a current employee or outsourced service. 
Thus, upon consideration of the totality of the circumstances, the record does not establish the 
Petitioner's ability to pay the proffered wage pursuant to Sonegawa. 
The record does not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. We will therefore aftirm the Director's decision and dismiss the 
appeal. 
C. The Beneficiary's Possession ofthe Required Experience 
Although unaddressed by the Director, the record also does not establish the Beneficiary's 
possession of the m1mmum experience required for the offered position and the requested 
classification. 
A petitioner must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 8 C.F.R. § 103.2(b)(l), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Also, a beneficiary of a skilled 
worker petition must possess at least 2 years of training or experience. Section 203(b)(3)(A)(i) of 
the Act; 8 C.F.R. § 204.5(1)(3)(ii)(B). 
In evaluating a beneficiary's qualifications, we must examine the job offer portion of a labor 
certification to determine the minimum requirements of an oflered position. We may neither ignore 
a term of the labor certification, nor impose additional requirements. K.R.K. Irvine. Inc. v. Landon. 
699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983); 
Stewart Infra-Red Commissary of Mass .. Inc. v. Coomey. 661 F·.2d 1, 3 (1st Cir. 1981). 
Here, the labor certification states the minimum requirements of the offered position of alteration 
tailor as 24 months, or 2 years, of experience in the job oflered. The labor certification states that 
the offered position requires no education or training. 
4 
.
Matter ofM-C-
The Beneficiary attested on the labor certification to her possession of more than 6 years of full-time 
experience in the job offered. She stated her employment as an alteration tailor by 
in South Korea from April 10, 2002, to October 30, 2008. 
A petitioner must support a beneficiary's claimed qualifying experience with a letter from an 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The Jetter must provide the name, address , and title of the 
employer , and describe the beneficiary ' s experience . ld. 
The Petitioner submitted an April 22, 2014, letter on the stationery of from the 
business's owner. The letter states the business's full-time employment of the Beneficiary as an 
alteration tailor from April 10, 2002, to October 30, 2008, and describes her job duties. 
Our first notice of intent to dismiss (NOID), hmvever, advised the Petitioner of derogatory 
information that cast doubt on the Beneficiary ' s claimed qualifying experience. On March 9, 2016, 
USCIS officers in South Korea could not find a telephone number associated with 
or with the address indicated on its letter. The ofticers phoned several businesses with 
properties neighboring the stated address. But owners and employees of those businesses stated they 
had never heard of 
After the Petitioner provided a telephone number for in response to our NOlO , 
a USCIS officer spoke by phone with the spouse of the business's owner. The spouse confirmed the 
business's employment of the Beneficiary as an alteration tailor. But the spouse stated that the 
Beneficiary worked at from 2004 to 2006, not from April 10, 2002, to October 
30, 2008, as stated on the labor certification and the business's letter. A petitioner bears the burden 
of establishing eligibility for a requested benefit. Section 291 ofthe Act, 8 U.S.C. § .1361. The 
Petitioner must therefore explain the discrepancy in the dates of the Beneficiary's claimed qualifying 
experience. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve 
inconsistences of record by independent, objective evidence pointing to where the truth lies). 
In response to our second NOID, the Petitioner submits a statement from the spouse of the owner of 
He states that he provided the USCIS officer with incorrect employment 
dates. He explains that the business's employment ofthe Beneficiary "was so long ago that I don 't 
remember correctly and made a mistake. " . The spouse states that the business employed the 
Beneficiary from April 2002 to October 2008, not from 2004 to 2006 as he mistakenly told the 
officer. The Petitioner also submits copies of an employment contract between 
and the Beneficiary, and a certificate stating the annual \vages the business paid her. 
However, we find that the Petitioner's response lacks sufficient, reliable evidence of the 
Beneficiary's claimed employment by The contract , purportedly signed by 
the business's owner and the Beneficiary on April 8, 2002, states the Beneficiary's term of 
employment "[f]rom April I 0, 2002 to October 30, 2008." If the Beneficiary and the owner entered 
into the agreement in 2002, however, the record does not explain how they knew the date the 
Beneficiary's employment would terminate more than 6 yeat;s later. The contract's inclusion of the 
5 
.
Matter ofM-C-
end date of employment raises questions about the veracity of the document. The contract therefore 
is unreliable evidence of the Beneficiary's claimed qualifying experience. 
The income certificate, which is signed by the owner of states the 
Beneficiary's annual wages from 2002 through 2008. The certificate, however, is insufficient to 
establish the Beneficiary's claimed employment. See Ho, 19 I&N Dec. at 591 (holding that doubt 
cast on any aspect of a petitioner's proof may lead to a reevaluation of the reliability and sufficiency 
of the remaining evidence). The certificate, which is dated January 14, 2017, lacks the reliability of 
a government document, tax form, or contemporaneously issued business record. The record 
therefore lacks sufficient, independent, objective evidence of the Beneficiary's claimed employment 
by 
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum 
experience required for the offered position and the requested classification. 
II. CONCLUSION 
The record does not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. The record also does not establish the Beneficiary's possession of 
the experience required for the offered position and the requested classification. 
ORDER: The appeal is dismissed. 
Cite as Matter of M-C-, ID# 78179 (AAO Mar. 30, 2017)