dismissed EB-3 Case: Cosmetology

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
n 
IN RE: 
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. 
 1153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
kobert P. Wiemann, Chief 
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 hair salon. It seeks to employ the beneficiary permanently in the United States as a 
cosmetologist. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification, approved by the U.S. 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. Therefore, the director denied the petition. 
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 October 15, 2004 denial, the single issue in this case is whether 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. 8 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 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 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 is accepted for processing by any office within the employment 
system of the DOL. See 8 CFR 8 204.5(d). The petitioner must also demonsh-ate that, on the priority date, the 
beneficiary had the qualifications stated on its Form ETA 750 as certified by the DOL and submitted with the 
petition. See Matter of Wing's Tea House, 16 I&N Dec. 15 8 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 20, 2001. The proffered wage as stated on the Form ETA 
750 is $13 per hour, 40 hours per week or $27,040 annually. The Form ETA 750 states that the position 
requires two years of experience in the proffered position and an unspecified number of years of high school 
education. 
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 on appeal.' Relevant evidence in 
1 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
Page 3 
the record includes: the petitioner's Schedule C, Profit or Loss fiom Business (Sole Proprietorship), filed in 
conjunction with the sole proprietor's Form 1040, U.S. Individual Tax Return, for 2000,2001,2002 and 2003; 
the sole proprietor's Form 1040 for 2000, 2001, 2002 and 2003; and the sole proprietor's letter dated 
November 5, 2004. The record does not contain any other evidence relevant to the petitioner's ability to pay 
the proffered wage. 
The record shows that the petitioner is structured as a sole proprietorship. On the petition, the petitioner 
claimed to have been established in 1980 and to currently employ six workers. On the Form ETA 750B, 
signed by the beneficiary on April 17,2001, the beneficiary did not claim to have worked for the petitioner. 
On appeal, the petitioner asserts that the beneficiary will generate income sufficient to cover the proffered 
wage and that the petitioner has demonstrated the ability to pay the wage from the priority date onwards. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a Form 
ETA 750 establishes a priority date for any immigrant petition that is later based on that Form 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). 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. Cornrn. 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 consideredprima facie proof of the petitioner's ability to pay the proffered wage. In this 
case, the petitioner has not established that it employed and paid the beneficiary the full proffered wage from 
the priority date in 200 1 onwards. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during the relevant period of analysis, 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), aff'd, 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). Thus, the sole proprietor's adjusted gross income, assets and personal 
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, 19 I&N Dec. 764 (BIA 1988). 
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 (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 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 this case, the sole proprietor indicates on the Form 1040 that he and his wife have two dependents. He did 
not provide other information regarding his annual, household expenses. The tax returns reflect the following 
information for the following years: 
Proprietor's adjusted gross income (Form 1040) $3 1,742 $22,830 
Petitioner's gross receipts or sales (Schedule C) $36,070 $38,200 
Petitioner's wages paid (Schedule C) $1,800 $1,800 
Petitioner's net profit from business (Schedule C) $9,40 1 $8,998 
Proprietor's adjusted gross income (Form 1040) $26,384 $12,824 
Petitioner's gross receipts or sales (Schedule C) $36,850 $33,600 
Petitioner's wages paid (Schedule C) $1,800 (none claimed) 
Petitioner's net profit from business (Schedule C) $8,029 $9,385 
Given that the priority date falls in 2001, the information from the Form 1040 for 2000 need not be 
considered at this point, though it will be considered in the totality of the circumstances analysis which 
follows. In 2001, 2002 and 2003, the sole proprietor's adjusted gross income of $22,830, $26,384 and 
$12,824, respectively, fails to cover the proffered wage of $27,040. Further, the sole proprietor could not 
support his household on a deficit, which is what remains after reducing the adjusted gross income by the 
amount required to pay the proffered wage in each of these years. 
Where the record does not indicate that the sole proprietor has sufficient net income or sufficient personal 
assets to pay the proffered salary, CIS may consider the overall magnitude of the entity's business activities 
and the totality of the circumstances concerning a petitioner's financial performance, when determining its 
ability to pay the wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter of 
Sonegawa, the Regional Commissioner considered an immigrant visa petition that had been filed by a small 
"custom dress and boutique shop" on behalf of a clothes designer. The district director denied the petition 
after determining that the beneficiary's annual wage of $6,240 was considerably more than the petitioner's net 
profit of $280 for the year of filing. On appeal, the Regional Commissioner considered an array of factors 
beyond the petitioner's net profit, including financial data, the petitioner's reputation and clientele, its number 
of employees, future business plans, news articles, and explanations of the petitioner's temporary financial 
difficulties. The Regional Commissioner looked beyond the petitioner's inadequate net income for the year 
Page 5 
of filing and found that the petitioner's expectations of continued business growth and increasing profits were 
reasonable. Id. at 615. Based on an evaluation of the totality of the petitioner's circumstances, the Regional 
Commissioner determined that the petitioner had established the ability to pay the beneficiary the proffered 
wage. 
Accordingly, CIS may, in its discretion, consider evidence relevant to a petitioner's financial ability that falls 
outside of a sole proprietor's net income and personal assets. CIS may consider such factors as the number of 
years that the petitioner has been doing business, the established historical growth of the petitioner's business, 
the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the 
petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an 
outsourced service, or any other evidence that CIS deems relevant to the petitioner's ability to pay the 
proffered wage. In this case, however, the only relevant forms of evidence provided by the petitioner are the 
Form 1040 and accompanying schedules for the years 2000 through 2003. This is not sufficient evidence to 
establish that the petitioner has met all of its obligations in the past or to establish its historical growth. In 
addition, such evidence is not sufficient to establish whether unusual circumstances exist in this case to 
parallel those in Sonegawa, nor to establish whether 2000 through 2003 were uncharacteristically unprofitable 
years for the petitionerlsole proprietor. 
Likewise, the petitioner has failed to present sufficient evidence to support its claim that the beneficiary will 
generate income such that it will have the funds necessary to pay the proffered wage. To support the claim, 
the petitioner provided the beneficiary's Form 1040 for 2003 which indicates that the beneficiary earned 
$9,308 in gross receipts or sales and a net income of $6,887 during 2003 as a self-employed, sole proprietor 
cosmetologist. Such documentation is not sufficient to demonstrate that the beneficiary would increase 
profits for the petitionerlsole proprietor to the extent that he could have paid the proffered wage of $27,040 
and covered his household expenses from the priority date onwards. It cannot be found that the petitioner's 
hypothesis of significantly increased income from the beneficiary outweighs the evidence presented in the tax 
returns reviewed earlier. To counter arguments put forth which utilize the projection of future earnings to 
demonstrate the ability to pay the proffered wage, the Acting Regional Commissioner in Matter of Great Wall, 
16 I&N Dec. 142, 144-145 (Acting Reg. Cornm. 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 eli~ble to have the petition approved under a new set of facts hinged upon 
probability and projections, even beyond the information presented on appeal. 
It is also noted that any income which the proprietor received from trusts and estates as listed on the Form 
1041, U.S. Income Tax Return for Estates and Trusts, is also listed as income on the Form 1040. The income 
listed on the Form 1041 shall not be added to the adjusted gross income listed on the Form 1040 such that 
estate and trust income would be double counted when analyzing the petitioner's ability to pay the proffered 
wage. 
The burden of proof 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.