dismissed EB-3 Case: Construction

PWC COPY 
U.S. Department of IIonieland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. 5 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. 
~obert P. Wiemann, Chief 
Administrative Appeals Office 
- 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 case will be dismissed. 
The petitioner is a construction and restoration company. It seeks to employ the beneficiary permanently in 
the United States as a stonemason. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the United States Department of Labor (DOL). 
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 11, 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 lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 6 1 153(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. 6 204.5(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 DOL. See 8 C.F.R. 5 204.5(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 DOL and submitted with the instant 
petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 27, 2001. The proffered wage as stated on the Form ETA 
750 is $23.70 per hour ($49,296.00 per year based on a 40 hour work week). The Form ETA 750 states that 
the position requires two years of experience in the job offered or two years of experience or education in 
masonry or irrigation related trade.' 
1 
 The instant petition is for a substituted beneficiary. An 1-140 petition for a substituted beneficiary retains 
the same priority date as the original ETA 750. Memo. from Luis G. Crocetti, Associate Commissioner, 
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.2 Counsel submits 
.. ~ 
no new evidence on appeal. Relevant evidence in the record includes IRS-FOI-&~ 1040, U.S. Individual 
Income Tax Returns, for 
lmlmm 
for 2001, 2002 and 2003 and the results of a Connecticut 
sales use tax audit condu 
 necticut Department of Revenue Services o 
or the period from January 1, 1997 through June 30, 2001.~ The record does no 
other evidence relevant to the petitioner's ability to pay the wage. 
On the petition, the petitioner claimed to currently employ two independent contractors. On the Form ETA 
750B, signed by the beneficiary on April 25, 2001, the beneficiary did not claim to have worked for the 
petitioner. 
On appeal, counsel asserts that the petitioner is a sole proprietorship, and that the director failed to take into 
account the proprietor's assets and the net profits fiom his business in'determining the petitioner's 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. 5 204.5(g)(2). 
\ 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (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 not established that it 
employed and paid the beneficiary the full proffered wage fiom the priority date in 2001 or subsequently. 
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 
Immigration and Naturalization Service, to Regional Directors, et al., Substitution of Labor Certification 
Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fm/fm96/fm28-96a.pdf (March 7, 1996). 
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. 5 103.2(a)(l). 
3 
 Evidence preceding the priority date of April 27, 2001 is not necessarily dispositive of the petitioner's 
continuing ability to pay the proffered wage beginning on the priority date. Further, state tax audit documents 
are not among the three types of evidence, enumerated in 8 C.F.R. 5 204.5(g)(2), required to illustrate a 
petitioner's ability to pay a proffered wage. mle ths regulation allows additional material "in appropriate 
cases," the petitioner in ths case has not demonstrated why the documentation specified at 8 C.F.R. 5 204.5(g)(2) 
is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. 
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 vodcraft 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner claims 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 doesnot exist as an entity apart from the individual owner. See Matter of United Investment 
Group, 19 I&N Dec. 248, 250 (Cornm. 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 petitioner has not established that it operates as a sole proprietorship. The petitioner 
submitted IRS FO&S 1040, U.S. Individual Income Tax Returns, for 
and 2003. The returns show no Schedule C business income for 2001, 
attached to any of the proprietor's tax  return^.^ Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (co&. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
However, even assuming that the petitioner is a sole proprietorship, the sole proprietor has not established that 
he can cover his existing business expenses, support himself and pay the proffered wage out of his adjusted 
gross income or other available funds. The proprietor's tax returns indicate that he is single and that he 
4 
The results of a Connecticut sales use tax audit conducted by the State of Connecticut Department of 
. for the period from January 1, 1997 through June 30, 2001 
failed to file quarterly Connecticut sales and use tax returns for tax years 1997, 
1998, 1999 and 2000. The results also indicate that he underreported income on his Connecticut sales and use 
tax returns for the first two quarters of 2001. The audit results state that the petitioner had no sales records, 
contracts or invoices for any relevant period and, therefore, the audit results are based on the petitioner's bank 
statements. Counsel urges this office to accept the results of a tax audit based on incomplete records to 
support the petitioner's ability to pay the proffered wage. However, since the Connecticut tax authorities 
determined that the petitioner had no sales records for the first two quarters of 2001 and that the petitioner 
underreported his income for the first two quarters of 2001, the reliability of his 2001 federal income tax 
return is doubtful. Doubt cast 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. Matter of Ho, 
19 I&N Dec. 582,591 (BIA 1988). 
Page 5 
supports himself. 
 The proprietor's tax returns reflect that the proprietor's adjusted gross income was 
$34,149.24 in 2001,'$32,682.90 in 2002 and $33,650.23 in 2003. Therefore, in 2001, 2002 and 2003, the sole 
proprietorship's adjusted gross income fails to cover the proffered wage of $49,296.00. It is improbable that 
the sole proprietor could support himself on a deficit, which is what remains after reducing the adjusted gross 
income by the amodnt required to pay the proffered wage. 
The burden of proo'f in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.