dismissed EB-3 Case: Electronics

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
f% 
-- 
LIN 02 247 52068 
PETITION: 
 Immigrant petition for Alien Worker as an Unskilled Worker, Other pursuant to section 
203(b)(3)(iii) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(3)(iii) 
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 hrther inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The service center director denied the employment-based visa petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an electronic service center.' It seeks to employ the beneficiary permanently in the United 
States as an electronic technician. 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. Accordingly, the director denied the 
petition. 
On appeal, counsel states that the beneficiary has received wages that are sufficient to establish the 
petitioner's ability to pay the proffered wage. Counsel submits further documentation. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(iii) 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 unskilled labor, 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. 
 204.5(1)(3) also provides 
(ii) Other documentation-- 
(D) Other Worker. If the petitioner is for an unskilled (other) worker, it must be 
accompanied by evidence that the alien meets any educational, training and 
experience, and other requirements of the labor certification. 
The regulation at 8 C.F.R. tj 204.5(g)(2) states, in pertinent part: 
AbiliQ 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, the day the Form ETA 750 was accepted for processing by any office within the employment system of 
the Department of Labor. See 8 CFR 
 204.5(d). Here, the Form ETA 750 was accepted for processing on 
August 19, 1997. The proffered wage as stated on the Form ETA 750 is a weekly salary of $500 or an annual 
salary of $26,000 a week. On the Form ETA 750B, signed by the beneficiary, the beneficiary did not claim to 
have worked for the petitioner. 
1 
The petitioner appears to be the beneficiary, as will be discussed further in these proceedings. 
The petitioner is structured as a sole proprietorship. On the petition, the petitioner did not indicate when it was 
established, how many employees it has, or its gross or net annual income. In support of the petition, counsel 
submitted the first page and Schedule C for the petitioner's Form 1040, individual income tax return, for tax 
years 1997, 1998, and 1999. All first pages of the Forms 1040 identi-an- as a 
married couple filing jointly and the Schedules C identif as the sole proprietor. These incomplete 
returns indicated that the petitioner had adjusted gross income of $26,274 in 1997, of $24,550 in 1998 and of 
$24,555 in tax year 1999. 
Because the director deemed the evidence submitted insufficient to demonstrate the petitioner's continuing 
ability to pay the proffered wage beginning on the priority date, on November 21,2002, the director requested 
additional evidence pertinent to that ability. The director requested the original copy of Form ETA 750 Parts 
A and B. The director also requested additional evidence to establish that the petitioner had the ability to pay 
the proffered wage as of the priority date of August 19, 1997 and to the present. The director stated that such 
evidence might include audited profitlloss statements, bank account records, andlor personnel records. 
In response, counsel stated that the petitioner had already provided the Service Center with the original copy 
of the ETA 750, and submitted a copy of the document. Counsel also submitted an altered second page of the 
1-140 petition that indicates the petitioner was established in 1994 and has two employees. 
Counsel also submitted 
 tax years 2000, 
2001, and 2002. These 
 s a manied couple 
filing jointly. identifies the 
and 
gross income of 
petitioner's monthly bank account statements from St. Paul Federal Bank interest checking account, for the 
months of May, September, and November 1997, the months of February, May, and October of 1998, and the 
months of May, October, and December 1999.* The petitioner also submitted copies of bank statements from 
Banco Popular from September 2000 to October 2000 and from September 2001 to December 2002.~ The 
petitioner also supplied copies of checks from St. Paul Federal Bank for what appeared to be payments for 
utilities, among other items.4 
On March 15, 2006, the director denied the petition. The director stated that the petitioner had ordinary 
income of $14,117' in tax year 2001, less than the proffered wage of $26,000. The director then stated that 
although the petitioner's income tax return for 2002 indicated that the petitioner's net income was sufficient 
to pay the proffered wage, the petitioner had not submitted tax returns for the years 1998, 1999, and 2000. 
2 
 interest checking bank account is in the name o 
 doing business as 
account is in the name 0- 
It is difficult to read the check copies due to their reduced size. 
5 
 The director incorrectly refers to line 12 of the Form 1040, the petitioner's business income, rather than 
line 33, the petitioner's adjusted gross income. 
Page 4 
The director then stated that judging by the petitioner's 2001 income tax return, and the omission of the 
missing tax returns, the petitioner has not established that it has the ability to pay the proffered wage. 
The director then reviewed the petitioner's checking account statements, and stated that the petitioner would 
need a minimum of $2,167 in available monthly cash reserves to pay the proffered wage. The director 
reviewed the opening balances of the petitioner's bank statements September 1997, October 1998, and May 
1999, and stated that these opening balances were $1,746.15, $785.07, and $1,680.26, respectively. Although 
the director noted that the more recent bank balances appeared larger, he also stated that the checking account 
balances in 1997, 1998, and 1999 did not demonstrate that the petitioner's finances were sufficient to pay the 
proffered wage, either on a monthly or yearly basis. 
On appeal, counsel states that the director failed to consider that the petitioner's net income is the amount 
after the beneficiary's wages were paid. Counsel states that the record indicates that since the time the 
petitioner commenced operations, the beneficiary received wages at times of more than $26,000 per year. 
Counsel also states that the petitioner provided copies of bank statements indicating the amount paid to the 
beneficiary, and that CIS erred in reviewing the beginning and ending bank balances statements without 
considering the actual payments made to the beneficiary for his wages. Counsel then submits bank statements 
from Banco Popular, Westmont, Illinois, for May 2002 to December 2006 and from National City, Royal 
Oak, Michigan, for the month of December 2005. The joint holders of the Banco Popular account are 
. The joint holders of the National City account are identified 
nts list both deposits and debits into the accounts, but do not 
provide any information on individual entries. 
The director in his request for further evidence requested that the petitioner had to establish its ability to pay 
the proffered wage as of August 19, 1997 to the present, and stated that the petitioner could submit audited 
profit/loss statements, bank account records, ardor personnel records. In his decision, the director refers to the 
monthly balances in these accounts. The record is not clear why the director requested such materials instead 
of the evidentiary documentation stipulated by 8 C.F.R. 204.5 (g)(2), namely, copies of annual reports, federal 
tax returns, or audited financial statements. Documents such as profit and loss statements, personnel records, 
or bank account records would only be viewed as supplementary documentation. 
In responding to the director's request for further evidence, the petitioner submitted bank statements from two 
banks. On appeal, counsel submits further bank statements from two checking accounts. Counsel's reliance 
on the balances in the petitioner's bank accounts or the deposits placed into the identified account is 
misplaced. First, bank statements 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. While this regulation allows 
additional material "in appropriate cases," the petitioner in this case has not demonstrated why the documentation 
specified at 8 C.F.R. 9 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the 
petitioner. Second, bank statements show the amount in an account on a given date, and cannot show the 
sustainable ability to pay a proffered wage. Third, no evidence was submitted to demonstrate that the funds 
reported on the petitioner's bank statements somehow reflect additional available funds that were not reflected on 
its tax returns. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will frst examine 
whether the petitioner employed and paid the beneficiary during that period. If the petitioner establishes by 
Page 5 
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. The 
beneficiary did not claim to have ner on the Form ETA 750 but rather indicated he had 
worked for another U.S. company, in Arlington, Illinois from July 1990 to August 1 993.6 
On appeal, counsel asserts that bank account statements establish that the beneficiary received wages since 
the sole proprietor began business activities and that the beneficiary received wages, at times of more than the 
stantiate this assertion, counsel submits copies of bank statements 
fo 
 from BancoPopular and National City banks. However the bank 
and his wife. While the bank statements do show deposits and 
withdrawals-from the two accounts, none of the deposits are identified as paychecks or wages for the 
beneficiary. Therefore, these bank documents are given no weight in the present proceedings. Therefore the 
petitioner cannot establish that it paid the beneficiary a salary equal to or greater than the proffered wage as of 
the 1997 priority date year and to the present. Furthermore, the petitioner has the obligation, in these 
proceedings, to establish that it has the ability to pay the entire proffered wage as of the priority year and to 
the present. 
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 
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). 
Based on the income tax returns submitted with the petition and in response to the director's request for 
further evidence, 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). 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 (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 the instant case, the sole proprietor supports himself, his wife, and four children. As previously stated, 
counsel submitted the first page and Schedule C for the petitioner's Form 1040, individual income tax return, 
It is noted that the record contains no letter of employment verification for this previous employment. 
Page 6 
for tax years 1997, 1998, and 1999.' These incomplete returns indicated that the petitioner had adjusted gross 
income in 1997 of $26,274, of $24,550 in 1998 and of $24,555 in tax year 1999. In response to the director's 
request for further evidence, counsel submitted the petitioner's Form 1040, U.S. Individual Income Tax 
Return for tax years 2000, 2001, and 2002. These documents indicate the petitioner had an adjusted gross 
income of $1 3,559 in 2000, of $1 3,119 in 2001, and of gross income of $33,809 in 2002. 
The director did not request and nor did the petitioner provide an itemized list of reoccurring household 
expenses with which to gauge if the sole proprietor could both pay the proffered wage and support himself 
and his dependents. However, in those tax years in which the sole proprietor had adjusted gross income that 
was less than the proffered wage of $26,000, namely tax years 1998, 1999, 2000, and 2001, the 
preponderance of the evidence does not establish that the petitioner could pay for household monthly 
expenses and pay the proffered wage based on its adjusted gross income. With regard to tax years 1997 and 
2002 that are years in which the sole proprietor's adjusted gross income is higher than the proffered wage, the 
funds available to support a family of six after the proffered wage was paid would have been $274 in tax year 
1997 and $7,809 in tax year 2002. Once again, the preponderance of the evidence does not establish that the 
sole proprietor could support himself and five dependents based on these remaining funds in tax years 1997 or 
2000. 
Thus, the petitioner has not established that it can pay the proffered wage, cover his existing business 
expenses, and sustain himself and his five dependents, based on his adjusted gross income as of the priority 
date and to the present. The sole proprietor also did not provide any further evidence of additional available 
funds that could be used to pay the proffered wage. Thus, the petitioner has not established that it had the 
ability to pay the proffered wage as of the 1997 priority date and continuing to the present. Therefore the 
director's decision shall stand, and the petition will be denied. 
Beyond the decision of the director, the AAO considers the issue of a bona fide job offer to exist in the instant 
petition. The sole proprietor submitted the 1-140 petition for the beneficiary who was identified as 
ving at 
 As stated previously, the sole proprietor petitioner submitted its 
with these return either the sole proprietor as 
or a. an 
 The Forms 1040 also i living en 1 ie e so e proprietor's at I 
four dependent children. The 
 ecking account submitted in response to the director's 
re uest for further evidence give two addresses for the sole proprietor, an earlier 
4 Westmont, Illinois, and on more recent bank statements, an address at 
Westmont, Illinois. The St. Paul Federal Bank statements identify the petitioner 
business as at Westmont, Illinois. 
7 
 The director's comment that the petitioner did not submit its 1997, 1998, 1999, or 2000 tax returns may be 
based on the fact that the 1997, 1998 and 1999 tax returns only consisted of the Form 1040 and Schedule C. 
The materials for the petitioner's 2001 tax return also only included the Form 1040, with a Schedule C and 
other attachments. However, the AAO will examine the adjusted gross income figures contained on the tax 
returns in these proceedings. 
8 
The Schedule C for the petiitoner's 2002 tax return identified both as the sole proprietor. It is noted that 
signed the 1-140 petition as the petitioner. In addition, she is listed on the 1-140 petition as 
e ene iciary s wife. 
Page 7 
On avveal. counsel submits what he claims are the beneficiarv's checking account bank statements to establish 
that the beneficiary has alwa s been aid by the sole 
 These documents are in the name of-1 
ho lives at Furthermore, on his 1-485 Application To Register Permanent Resident 
or Adjust Status, the beneficiary lists the same wife and children as the individuals listed on the sole 
proprietor's Forms 1040. Finally on the copy of the beneficiary's passport submitted with the 1-485, the 
beneficiary is identified as Based on the identical wife and children for both the beneficiary 
and the sole proprietor's owner, the sole proprietor and the beneficiary appear to be the same person, and the 
sole proprietor appears to be applying for himself. 
Under 20 C.F.R. 626.20(~)(8) and 656.3, the petitioner has the burden when asked to show that a valid 
employment relationship exists, that a bonajide job opportunity is available to U.S. workers. See Matter of 
Amger Corp., 87-INA-545 (BALCA 1987). A relationship invalidating a bonajde job offer may arise where 
the beneficiary is related to the petitioner by "blood" or it may "be financial, by marriage, or through 
friendship." See Matter of Summart 374, 00-INA-93 (BALCA May 15,2000). Where the petitioner is owned 
by the person applying for position, it is not a bonajide offer. See Bulk Farms, Inc. v. Martin, 963 F.2d 1286 
(9th Cir. 1992) (denied labor certification application for president, sole shareholder and chief cheese maker 
even where no person qualified for position applied). Thus, the petitioner has to establish that a bona fide 
position exists for a person distinct from the sole proprietor's owner in the instant petition. For this additional 
reason, the appeal will be dismissed. 
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 with regard to the petitioner's ability to pay or to the 
beneficiary's qualifications to perform the duties of the position. 
ORDER: The appeal is dismissed.