dismissed EB-3 Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-K-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 20, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a chef. The Petitioner requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant classification. 
See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
This employment-based immigrant classification allows a U.S. employer to sponsor a foreign 
national for lawful permanent resident status to work in a position that requires at least two years of 
training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
record did not establish, as required, that the Petitioner had the continuing ability to pay the 
proffered wage from the priority date up to the present. 
On appeal, the Petitioner submits copies of documentation already in the record and asserts that he 
has possessed the ability to pay the proffered wage. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL). 1 See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that employing a foreign national in the position will not adversely atiect the 
wages and working conditions of domestic workers similarly employed. See section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third, 
if USCIS approves the petition, the 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. 
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The date the labor certification is filed is called the "priority date." See 8 C.F.R. § 204.5(d). The Petitioner must 
establish that all eligibility requirements for the petition have been satisfied from the priority date onward. 
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Matter of W-K-
A petitioner must establish that it has the ability to pay the beneficiary the profTered wage, as stated 
on the labor certification, from the priority date onward. The regulation at 8 C.F.R. § 204.5(g)(2) 
provides, in pertinent part, as follows: 
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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
II. ANALYSIS 
The priority date of this petition is January 4, 2012.2 As stated on the certified ETA Form 9089, 
Application for Permanent Employment Certification (labor certification), the proffered wage for the 
chef position is $47,382.40 per year. The labor certification did not state that the Beneficiary had 
ever been employed by the Petitioner up to 2012, and there is no evidence in the record that the 
Beneficiary has been employed by the Petitioner in the years since the priority date. Accordingly, 
the Petitioner has not established its ability to pay the profTered wage based on wages paid to the 
Beneficiary. 
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'r 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 federal 
tax return (Form 1 040) 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. See Ubeda v. Palmer, 539 F. Supp. 647 (N.D. III. 1982), 
affd, 703 F.2d 571 (7th Cir. 1983). 
The record includes copies of the federal income tax returns ofthe Petitioner's sole proprietor for the 
years 2011-2013. They show that his adjusted gross income (AGI) amounted to $165,949 in 2011, 
$201,347 in 2012, and $193,630 in 2013. In a letter that was submitted in support ofthe Form I-140 
2 
The Petitioner requested an earlier priority date of February 2, 2010, based on another Form 1-140, Immigrant Petition 
for Alien Worker, filed on behalf of the Beneficiary by another employer Since this earlier petition 
was filed by another employer, and there is no evidence that the Petitioner is a successor-in-interest to that employer, the 
correct priority date for this petition is January 4, 2012. 
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Matter ofW-K-
petition filed in 2012 the Petitioner listed yearly living expenses which amounted to $156,340.92. 
Subtracting this figure from the Petitioner's AGI.in the years 2011-2013 leaves a balance of$9,608 
in 2011, $45,006 in 2012, and $37,289 in 2013. These balances were below the profTered wage in 
all three years (by $33,864 in 2011, $2,776 in 2012, and $10,093 in 2013). Based on its adjusted 
gross income and annua1living expenses, therefore, the Petitioner has not established its continuing 
ability to pay the full proffered wage of $4 7,3 82.40 from the priority date of January 4, 2012, 
onward. 
On appeal the Petitioner asserts that the Director erroneously concluded that its real property was not 
a liquid asset that could be utilized to pay the proffered wage. In particular, the Petitioner claims 
that its real property (a single-family residence and lot) has an estimated value of $902,000 (based 
on the sale prices of allegedly comparable properties), a mortgage of $606,989 (as recorded in a 
monthly mortgage statement), and a line of credit in the amount of $295,010. While the line of 
credit figure represents the difference between the estimated value and the outstanding mortgage, 
there is no evidence in the record that any line of credit has been opened by the Petitioner. Thus, no 
liquid asset can be ascribed to the difference between the property value and the mortgage balance. 
Even if the Petitioner did have a line of credit based on the equity in its real property, we would not 
add it to the Petitioner's available funds for purposes of calculating its ability to pay the proffered 
wage. A "bank line" or "line of credit" is a bank's unenforceable commitment to make loans to a 
particular borrower up to a specified maximum during a specified time period. A line of credit is not 
a contractual or legal obligation on the part of the bank. See John Downes and Jordan Elliot 
Goodman, Barron's Dictionary of Finance and Investment Terms 45 (5th ed. 1998). 
The Petitioner asserts that USCIS must evaluate its overall financial position to determine whether it 
has the ability to pay the proffered wage, citing Matter o.f Great Wall, 16 I&N Dec. 142 (Acting 
Reg'l Comm'r 1977). We agree. USCIS may, at its discretion, consider evidence relevant to the 
Petitioner's financial ability that falls outside of a petitioner's net income and net current assets. 
USCIS may consider such factors as the number of years the Petitioner has been doing business, the 
established historical growth of its 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 USCIS deems relevant to the Petitioner's ability to pay the proffered wage. See Matter 
o_fSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
In this case the Petitioner states that its restaurant opened in October 2010 and had 12 employees as 
of 2013. The income tax returns in the record show that its gross receipts from the business were 
$1,162,358 in 2011, $1,226,924 in 2012, and $1,261,743 in 2013. Thus, gross income was roughly 
the same in the restaurant's first three years of operation. The Petitioner has not submitted any 
further tax returns for subsequent years. Therefore, the record does not show a historical pattern of 
growth for the restaurant. The Petitioner has submitted a copy of its menu, but no documentary 
evidence of its reputation within the restaurant industry. There is no evidence or claim of unusual 
expenditures or losses during the restaurant's years of operation. 
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Matter ofW-K-
Further, as previously stated, the record does not contain the required evidence of the Petitioner's 
ability to pay the proffered wage from 2014 up to the present in the form of annual reports, tax 
returns, or audited financial statements. See 8 C.F .R. § 204.5(g)(2). 
Therefore, the Petitioner has not established its continuing ability to pay the full proffered wage of 
the job offered from the priority date to the present based on the totality of its circumstances. 
III. CONCLUSION 
We will dismiss the appeal because the Petitioner has not established its continuing ability to pay the 
proffered wage from the priority date to the present. 
ORDER: The appeal is dismissed. 
Cite as Matter ofW-K-, ID# 583041 (AAO Sept. 20, 2017) 
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