dismissed EB-3 Case: Construction

Identifying data deleted to 
prevent clearly unwnmted 
invasion of perma1 MV~CY 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
b6 
FILE: EAC-04-245-50068 Office: VERMONT SERVICE CENTER Date: SEP 0 6 2006 
PETITION: 
 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. 4 1153(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-04-245-50068 
Page 2 
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 commercial construction company. It seeks to employ the beneficiary permanently in the 
United States as a sheet metal roofer. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor, accompanied the petition. 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 and 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 of this case is documented in the record and is incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's January 21, 2005 decision denying the petition, the single issue in this case is 
whether the evidence establishes the petitioner's ability to pay the proffered wage as of the priority date and 
continuing until the beneficiary obtains lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 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 or seasonal nature, for which qualified workers are not available in 
the United States. 
The regulation at 8 C.F.R. 9 204.5(g)(2) states: 
Ability ofprospective 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 lawhl 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 a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profitlloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which 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. 9 204.5(d). The priority date in the instant 
petition is April 5, 2001. The proffered wage as stated on the Form ETA 750 is $29.32 per hour, which 
amounts to $60,985.60 annually. 
The AAO reviews appeals on a de novo basis. See Dorr v. I.N.S. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). 
The AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
In the instant appeal, the petitioner submits a brief and additional evidence. 
EAC-04-245-50068 
Page 3 
Relevant evidence submitted on appeal includes copies of investment account statements of the petitioner's 
owner and his wife dated in December 2003 and a copy of a Form 1040 U.S. Individual Income Tax Return 
of the petitioner's owner and his wife for 2004. Other relevant evidence in the record includes copies of Form 
1040 U.S. Individual Income Tax Returns of the petitioner's owner and his wife for 2001, 2002 and 2003, a 
copy of a letter from a prior employer of the beneficiary in Philadelphia and a copy of a letter from a prior 
employer of the beneficiary in Russia. 
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. § 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). 
On appeal, counsel states that the petitioner is submitting on appeal additional financial information in the 
form of personally owned brokerage accounts, held during all relevant periods, and a copy of the Form 1040 
U.S. Individual Income Tax Return of the petitioner's owner for 2004 showing the ability to pay the proffered 
wage. 
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 lawful 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. 
$ 204.5(g)(2). For each year at issue, the petitioner's financial resources generally must be sufficient to pay 
the annual amount of the beneficiary's 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, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary but not dated, the beneficiary did not claim to 
have worked for the petitioner and no other evidence in the record indicates that the beneficiary has worked 
for the petitioner. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
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 COT. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9~ Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Suva, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), aff'd., 703 F.2d 57 1 (7' Cir. 1983). In K. C.P. Food Co., Inc., the court held that the Immigration 
and Naturalization Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the 
petitioner's corporate income tax returns, rather than the petitioner's gross income. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
EAC-04-245-50068 
Page 4 
The evidence indicates that the petitioner is a sole proprietorship. The record contains copies of Form 1040 
U.S. Individual Income Tax Returns of the petitioner's owner for 2001,2002, 2003 and 2004. The copies of the 
returns for 2001, 2002 and 2003 were submitted with the 1-140 petition and the copy of the return for 2004 was 
submitted on appeal. The 1-140 petition was submitted on August 23, 2004. Therefore the owner's tax return for 
2003 was the most recent return available when the 1-140 petition was submitted. 
Unlike a corporation, a sole proprietorship is not legally separate from its owner. 
 Therefore the sole 
proprietor's income 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 
returns 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. A sole proprietor must show the ability to cover his or her existing 
business expenses as well as to pay the proffered wage. In addition, the sole proprietor must show sufficient 
resources for his or her own support and for that of any dependents. Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th 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 the owner, his spouse and five dependents on a gross income 
of slightly more than $20,000.00 where the beneficiary's proposed salary was $6,000.00, a figure which was 
approximately thirty percent (30%) of the petitioner's gross income. 
In the instant petition, the tax returns of the petitioner's owner are joint returns of the owner and his wife. The 
returns for 2001, 2002 and 2003 show three dependents and the return for 2004 shows two dependents. 
Therefore the household size of the petitioner's owner was five persons in 2001, 2002 and 2003 and four 
persons in 2004. 
For a sole proprietorship, CIS considers net income to be the figure shown on line 33, Adjusted Gross 
Income, of the owner's Form 1040 U.S. Individual Income Tax Return. The owner's tax returns show the 
following amounts for adjusted gross income: 
Tax Adjusted Household Wage increase needed Surplus or 
year gross income expenses to pay the proffered wage (deficit) 
200 1 $70,555.00 not submitted $60,985.60* $9,569.40 
2002 $61,796.00 not submitted $60,985.60* $8 10.40 
2003 $47,593.00 not submitted $60,985.60* $(13,392.60) 
2004 $70,5 1 1 .OO not submitted $60,985.60* $9,525.40 
* The full proffered wage, since the record contains no evidence of any wage payments 
made by the petitioner to the beneficiary. 
The amounts remaining after paying the proffered wage are less than $10,000.00 each year. Those amounts are 
considered insufficient to pay the reasonable household expenses of a five-person household in 2001, 2002 and 
2003 and a four-person household in 2004. The above information therefore fails to establish the petitioner's 
ability to pay the proffered wage in any of the years at issue in the instant petition. 
The record also contains copies of bank statements and brokerage account statements of the petitioner's owner 
and his wife, each dated in December 2003. Since the petitioner is a sole proprietorship, the petitioner's owner is 
personally liable for the financial obligations of the petitioner. For this reason, assets held in the name of the 
petitioner's owner are relevant to the issue of the petitioner's ability to pay the proffered wage, as are assets held 
in the name under which the petitioner does business. 
EAC-04-245-50068 
Page 5 
Bank statements and brokerage account statements are not among the three types of evidence listed in 8 C.F.R. 
§ 204.5(g)(2) as acceptable evidence to establish a petitioner's ability to pay a proffered wage. However, 
evidence such as bank statements may be considered as supplemental evidence to the types of evidence required 
by the regulation. Where a petitioner is a sole proprietorship, the relevant tax returns are the Form 1040 U.S. 
Individual Income Tax Returns of the petitioner's owner. Unlike the Form 1120 corporate income tax return, 
which contains a Schedule L balance sheet, a Form 1040 individual tax return includes no balance sheet showing 
the assets and liabilities of the taxpayer. For this reason, any separate evidence of the assets and liabilities of the 
petitioner's owner does not duplicate information already found on the Form 1040 tax returns. 
In the instant petition, the record contains a combined statement for a bank account and a money market account 
of the petitioner's owner and his wife with Wachovia Bank dated December 18, 2003. The total balance in those 
two accounts as of December 15, 2003 is shown as $1 6,638.11. The record also contains a copy of an account 
statement for an investment account of the petitioner's owner and his wife with Wachovia Bank dated December 
3 I, 2003. The statement shows a closing value of $2 1,242.87 as of December 3 1,2003. 
On the I-290B, counsel states that the personally owned brokerage accounts were held "during all relevant 
periods." (I-290B, block 3). 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). No evidence in the 
record indicates that the bank and investment accounts covered by the above account statements were held by the 
petitioner's owner and his wife during each of the years at issue in the instant petition. Therefore the account 
statements fail to establish the petitioner's ability to pay the proffered wage during 2001 and 2002. Moreover, 
even for 2003, the combined total balances on the accounts was only $37,880.98 in December 2003. That 
amount is less than the proffered wage of $60,985.60. It would not be appropriate to combine the account 
balances total with the adjusted gross income of the petitioner's owner and his wife for 2003, since to do so might 
cause double counting of some funds. Income earned by the petitioner's owner and his wife in 2003 could have 
been the source for some of the money in the account statements as of December 2003. Reviewing all of the 
bank statements during the relevant periods would assist CIS in determining if the funds really are double- 
counted. For these reasons, the account statements in the record fail to establish the petitioner's ability to pay the 
proffered wage during any of the years at issue in the instant petition. 
The record contains no other evidence relevant to the petitioner's financial situation. 
Based on the foregoing analysis, the evidence in the record fails to establish the petitioner's ability to pay the 
proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. 
In his decision, the director correctly stated the petitioner's net income in 2001, 2002 and 2003, and correctly 
calculated the petitioner's year-end net current assets for each of those years. The director found that those 
amounts failed to establish the petitioner's ability to pay the proffered wage in those years. The decision of 
the director to deny the petition was correct, based on the evidence in the record before the director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.