dismissed EB-3 Case: Culinary Arts

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PUBLIC COPY 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
8~ 
SRC 04 073 52434 
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. 3 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 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Chinese Restaurant. It seeks to employ the beneficiary permanently in the United States as 
a Foreign Food Specialty Cook. 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 February 24, 2005 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. tj 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. tj 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 tj 204.5(d). The petitioner must also demonstrate 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. 158 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 23, 2001. The proffered wage as stated on the Form ETA 
750 is $10.25 per hour, 40 hours per week or $21,320 annually. The Form ETA 750 states that the position 
requires two years of experience in the proffered position. 
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 
I 
The submission of additional evidence on appeal is allowed by the instructions to the Form 1-2908, which 
the record includes: the petitioner's Schedule C, Profit or Loss from Business (Sole Proprietorship), filed in 
conjunction with the sole proprietor's Form 1040, U.S. Individual Tax Return, for 2001, 2002 and 2003; the 
sole proprietor's Form 1040 for 2001, 2002 and 2003; the sole proprietor's affidavit dated March 14, 2005; 
letters from the sole proprietor's banks regarding balances in her savings and checking accounts; 2003 Form 
W-2, Wage and Tax Statement, for four individuals employed by the petitioner; 2004 unaudited financial 
statements compiled for the sole proprietor; and counsel's brief. 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 1998 and to currently employ four workers. On the Form ETA 750B, 
signed by the beneficiary on April 16,200 1, the beneficiary did not claim to have worked for the petitioner. 
On appeal, counsel asserts that the director erred when she indicated that the petitioner, a sole proprietorship, 
needed to submit "company tax returns". Counsel also asserts that the sole proprietor's Schedule C for 2002 
and 2003 verify that the petitioner had the ability to pay the beneficiary the proffered wage in those years. 
Counsel indicates further that, though the petitioner's net income in 2001 was not sufficient to pay the 
proffered wage, the petition was not filed until the end of 2001 and, as such, the petitioner need not 
demonstrate the ability to pay the entire, annual proffered wage for 2001. Moreover, counsel suggests that the 
petitioner's restaurant was relatively new in 200 1 and, consequently, that year's lower earnings should not be 
viewed as evidence that the petitioner does not currently have the ability to pay the proffered wage. In 
addition, counsel indicates that the unaudited financial statements and records of personal savings and 
checking accounts, submitted by the sole proprietor, document that the petitioner has the ability to pay the 
proffered wage using the sole proprietor's personal assets, if necessary. Finally, the sole proprietor's affidavit 
submitted on appeal states that the beneficiary's Form W-2 for 2004 demonstrates that the petitioner paid the 
beneficiary the full proffered wage from March 2004 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. 8 204.5(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. 6 12 (Reg. Cornm. 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 this 
case, the petitioner has not established that it employed and paid the beneficiary the full proffered wage from 
the priority date in 2001 onwards. The petitioner did claim to have employed the beneficiary from March 
2004 onwards. However, the petitioner provided no documentary evidence to support the assertion that it 
ever employed the beneficiary. 
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). 
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), afd, 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 
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 she has no dependents. She did not provide 
other information regarding her annual, personal expenses. The tax returns reflect the following information 
for the following years: 
Proprietor's adjusted gross income (Form 1040) $15,165 $24,535 $24,222 
Petitioner's gross receipts or sales (Schedule C) $49,519 $57,3 15 $72,452 
Petitioner's wages paid (Schedule C) (none claimed) (none claimed) $1 1,977 
Petitioner's net profit from business (Schedule C) $16,3 18 $26,400 $26,064 
In 2001, the sole proprietor's adjusted gross income of $15,165 fails to cover the proffered wage of $21,320. 
It is improbable that the sole proprietor could support herself on a deficit, which is what remains after 
reducing the adjusted gross income by the amount required to pay the proffered wage. In 2002, the sole 
proprietor's adjusted gross income of $24,535 does cover the proffered wage of $21,320. Yet, it is 
improbable that the sole proprietor could support herself on the $3,215 that remains after reducing the 
adjusted gross income by the amount required to pay the proffered wage. In 2003, the sole proprietor's 
adjusted gross income of $24,222 does cover the proffered wage of $21,320. However, it is improbable that 
the sole proprietor could support herself on the $2,902 that remains after reducing the adjusted gross income 
by the amount required to pay the proffered wage. 
Counsel was correct in his assertion that the director erred when she indicated that the petitioner, a sole 
proprietorship, needed to submit "company tax returns". The Form 1040 and the accompanying Schedule C 
are the appropriate tax forms for sole proprietors to submit with the petition in order for CIS to analyze the 
petitioner's ability to pay the proffered wage. 
Counsel's claim that the petitioner in this case need not demonstrate the ability to pay the entire, annual 
proffered wage for 2001 because the Form ETA 750 was not filed until the end of 2001 is misplaced. First, 
the Form ETA 750 was filed in April 2001, not November 2001 as counsel indicated. Second, even if CIS 
were to prorate the proffered wage for the portion of the year that occurred after the priority date, CIS shall 
not consider 12 months of income towards an ability to pay a lesser period of the proffered wage. CIS will 
prorate the proffered wage only if the record contains evidence of net income or payment of the beneficiary's 
wages which specifically cover only the portion of the year that occurred after the priority date, such as 
monthly income statements or pay stubs. However, the petitioner has not submitted such evidence. 
Counsel's claim that the petitioner's restaurant was relatively new in 2001 and, consequently, that year's lower 
earnings should not be viewed as evidence that the petitioner does not currently have the ability to pay the 
proffered wage is also misplaced. The petitioner must demonstrate the ability to pay the proffered wage from 
the priority date of April 23,2001 onwards. See 8 CFR. tj 204.5(g)(2). 
In addition, contrary to the assertion of counsel, the sole proprietor's unaudited financial statements shall not 
be used as evidence that the petitioner has the ability to pay the proffered wage using the sole proprietor's 
personal assets. The regulation at 8 C.F.R. 9 204.5(g)(2) makes clear that where a petitioner relies on 
financial statements to demonstrate its ability to pay the proffered wage, those financial statements must be 
audited. The financial statements in this record were produced pursuant to a compilation rather than an audit. 
A compilation is the management's representation of its financial position, compiled into standard form. The 
unsupported representations of management are not reliable evidence and are insufficient to demonstrate the 
ability to pay the proffered wage. 
Counsel's reliance on the December balances in the sole proprietor's bank accounts for 2001, 2002 and 2003 
and on the sole proprietor's February 2005 balance for a separate bank account is also misplaced. That is, the 
record contains letters from the sole proprietor's banks which indicate that: during December 2001, she had a 
balance of $2,885.89 in her checking account and a balance of $7,786.81 in her savings account; during 
December 2002, she had a balance of $1,983.88 and $6,602.3 1 in these respective accounts; during December 
2003, she had a balance of $4,118.71 and $567.42 in these same accounts; and at the beginning of February 
2005, at a different bank, the sole proprietor had a savings account balance of $26,192.34. These letters 
provide no information to verify that, from the priority date onwards, these accounts maintained an average 
monthly balance sufficient to cover any remaining portion of the proffered wage, not covered by the sole 
proprietor's net income, as well as the personal expenses of the sole proprietor. Moreover, if the checking 
account to which these documents refer represents the sole proprietor's business checking account, these 
funds are most likely shown on Schedule C of the sole proprietor's returns as gross receipts and expenses. 
Such funds have been considered earlier in the analysis and shall not be double counted. 
Finally, the sole proprietor's affidavit submitted on appeal states that the beneficiary's Form W-2 for 2004 
demonstrates that the petitioner paid the beneficiary the proffered wage from March 2004 onwards. However, 
the record does not include any Form W-2 for the beneficiary or any other documentation to support the 
assertion that the sole proprietor has employed the beneficiary at any point. Unsupported assertions are not 
evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
Page 6 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.