dismissed EB-3 Case: Healthcare

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PUBLIC Copy 
identitjring data deleted to 
fjY@vent dead j. rigwarranted 
irlvasion of personal privacy 
Office: CALIFORNIA SERVICE CENTER 
 Date: A~R 2 4 2007 
WAC05 111 52118 
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 1 153(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an adult residential facility serving developmentally disabled individuals. It seeks to employ 
the beneficiary' permanently in the United States as a cook, institution. 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. 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, 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. 
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. 8 204.5(g)(2) states in pertinent part: 
Abiliv 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 lawfbl 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 U.S. Department of Labor. See 8 C.F.R. 8 
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 U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Cornrn. 1977). 
' 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, 
Immigration and Naturalization Service, to Regional Directors, et al., Immigration and Naturalization Service, 
Substitution of Labor Certzjkation Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fm/fm96/fm~28-96a.pdf 
(March 7, 1996). 
Page 3 
Here, the Form ETA 750 was accepted on November 26, 1997.~ The proffered wage as stated on the Form 
ETA 750 is $1 1.55 per hour ($24,024.00 per year). 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 upon appeaL3 
Relevant evidence in the record includes copies of the following documents: the original Form ETA 750, 
Application for Alien Employment certification, approved by the U.S. Department of Labor; a letter from the 
etitioner dated February 15, 2005; an explanatory letter from counsel dated August 26, 2005;- 
and 
 U.S. Internal Revenue Service Form 1040 tax returns for 2001, 
2002 and 2003; a "Statement of Monthly Expenses" for California Employment Development 
Department (EDD) Form DE-6, Quarterly Wage Reports for all employees for the last two quarters of 2004 and 
the first two quarters of 2005; the petitioner's facility license; and, copies of documentation concerning the 
beneficiary's qualifications as well as other documentation. 
The evidence in the record of proceeding shows that the petitioner is structured as sole proprietorship. On the 
petition, the petitioner claimed to have been established in 1995, and, to currently employ three workers. 
According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the 
Form ETA 750B, signed by the beneficiary on February 10, 2005, the beneficiary did not claim to have 
worked for the petitioner. According to counsel's brief, the beneficiary commenced working for the 
petitioner in June of 2005. 
On appeal, and, as supplemented by counsel on February 1, 2006, the petitioner asserts in pertinent part that 
the petitioner has been continuously in operation since 1995, and, its business is care of the developmentally 
disabled. Counsel contends that the petitioner's business "is not just moneymaking trade where "income" and 
"number of employees" are usually the gauges in determining the structure and complexity of the 
organization." Counsel asserts, but he does not provide a reference, that the determination of the ability to 
pay the proffered wage is the sole responsibility of the U.S. Department of Labor, and not, Citizenship and 
Immigration Services (CIS). Further, counsel asserts that the petitioner's credit line is evidence of the ability 
to pay the proffered wage. 
As a preface to the following discussions, in determining the respective jurisdictions of the U.S. Department of 
Labor (DOL) and CIS, one may turn to the entire body of recent court proceedings interpreting the interplay of 
the agencies and strictly confining the final determination made by the Department of Labor. See Stewart 
Infra-Red Commissary, Etc. v. Coomey, 661 F.2d 1 (1 st Cir. 198 1); Denver Tofu Company v. District Director, 
Etc., 525 F. Supp. 254 (D. Colo. 1981); and, Joseph v. Landon, 679 F.2d 113 (7th Cir. 1982). 
2 
 It has been approximately nine years since the Alien Employment Application has been accepted and the 
proffered wage established. According to the employer certification that is part of the application, ETA Form 
750 Part A, Section 23 b., states "The wage offered equals or exceeds the prevailing wage and I [the 
employer] guarantee that, if a labor certification is granted, the wage paid to the alien when the alien begins 
work will equal or exceed the prevailing wage which is applicable at the time the alien begins work." 
3 
 The submission of additional evidence on appeal is allowed by the instructions to the CIS Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. 8 103.2(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). 
Although the advisory opinions of other Government agencies are given considerable weight, CIS has authority 
to make the final decision about a beneficiary's eligibility for occupational preference classification. The 
Department of Labor is responsible for decisions about the availability of United States' workers and the effect 
of a prospective employee's employment on wages and worlung conditions. The Department of Labor's 
decisions concerning these factors, however, do not limit the CIS'S authority regarding eligibility for 
occupational preference classification. Therefore, the issuance of a labor certification does not necessarily mean 
a visa petition will be approved. 
As set forth in the director's denial dated September 26, 2005, 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. 
Accompanying the appeal, counsel submits a legal brief and additional evidence th 
followin documents: U.S. Internal Revenue Service Form 1040 tax returns for 
- 
 -2; 
for 1997, 1998 and partial copies of 1999 and 2000 tax returns as we as a statement of the 
petitioner's monthly expenses for six months ended June 30, 2005. The petitioner also provided a non- 
audited income statement for the six months ending June 30, 2005, for which is the petitioner's 
business. Since this statement was not audited it does not have independent, objective, also called probative, 
value as evidence of the petitioner's ability to pay according to regulation. See 8 C.F.R. tj 204.5(g)(2). 
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. 
tj 204.5(g)(2). In evaluating whether a job offer is realistic, 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 (BIA 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 the 
instant case, the petitioner has not established that it employed and paid the beneficiary the full proffered 
wage from the priority date. 
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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Page 5 
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. 
Therefore, to determine the ability of the petitioner to pay the proffered wage and meet herhis living costs, 
the director requested the petitioner to submit a statement of recurring household expenses for the petitioner's 
family. This statement must indicate all of the family's household living expenses. Such items generally 
include the following: housing (rent or mortgage), food, car payments (whether leased or owned), installment 
loans, insurance (auto, household, health, life, etc.), utilities (electric, gas, cable, phone, internet, etc.), credit 
cards, student loans, clothing, school, daycare, gardener, house cleaner, nanny, and any other recurring 
monthly household expenses. Sole proprietors must show that they can sustain themselves and their 
dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), affd, 703 F.2d 571 (7" Cir. 1983). 
A statement of the petitioner's monthly expenses for the six months ended June 30, 2005 stated year-to-date 
total expenses for nine expense items totaling $9,869.00, or $19,738.00 yearly. We note there are no housing 
expenses or gaslelectriclheating fuel costs stated on the petitioner's monthly expenses, but we note that the on 
the petitioner's tax returns there are substantial mortgage expenses for what appear to be business properties. 
For example, in 1997 the Schedule C, Part 11, Line 16.a stated mortgage interest payments of $36,888.00 as a 
result of six loans. There is no explanation why the petitioner has not stated personal housing or 
gaslelectriclheating fuel expenses.4 We do not find the statement of the petitioner's personal expenses 
credible. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the tmth lies. Matter of Ho, 19 I&N Dec. 
582,591-92 (BIA 1988). 
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. 
4 
 We cannot speculate based upon the lack of evidence submitted and the failure of the petitioner to include 
housing expenses or gas/electric/heating fuel costs relating to the petitioner's housing arrangements, if a 
portion of the expenses allocated on Schedule C actual1 re r n s. The federal emplo er 
number (FEIN) for the facility identified as ~ujunga California ish 
(the number is obscured for privacy purpose) according to a Form 1099-MISC in the file. The 
Schedules C submitted list a combination of other FEIN numbers. If this matter is pursued, this issue should 
be investigated since it appears that other facilities expenses and revenues at other addresses are combined by 
the petitioner on the returns submitted. 
In the instant case, the sole proprietor supports a family of two. The proffered wage is $24,024.00 per year. 
The tax returns reflect the following information for the following years from the priority date of November 
26, 1997: 
Proprietor's adjusted gross income5 (Form 1040) 
Petitioner's gross receipts or sales6 (Schedule C) 
Petitioner's wages paid7 (Schedule C) 
Petitioner's net profit fiom business8 (Schedule C) 
Proprietor's adjusted gross income (Form 1040) $---9 $ 66,324 
Petitioner's gross receipts or sales (Schedule C) $377,5 16 $428,874 
Petitioner's wages paid (Schedule C) $---lo $ 70,026 
Petitioner's net profit from business (Schedule C) $ 81,039 $ 72,744 
Proprietor's adjusted gross income (Form 1040) $ 51,772 $37,427 
Petitioner's gross receipts or sales (Schedule C) $444,465 $454,064 
Petitioner's wages paid (Schedule C) $ 63,558 $ 61,686 
Petitioner's net profit from business (Schedule C) $ 58,264 $ 42,239 
Proprietor's adjusted gross income (Form 1040) 
 $ 48,004 
Petitioner's gross receipts or sales (Schedule C) 
 $447,777 
Petitioner's wages paid (Schedule C) 
 $ 54,170 
Petitioner's net profit from business (Schedule C) 
 $ 51,654 
Assuming the Schedules C relate to the petitioner, the adjusted gross income for each year exceeds the 
proffered wage except in 1999 (in which no wages were stated). However, it is improbable and the 
preponderance of the evidence does not show that the sole proprietor could support himself and his spouse on 
what remains after reducing the adjusted gross income by an amount required to pay the proffered wage in 
any year for which evidence was submitted. 
5 
 IRS Form 1040, Line 32, 33,34 or 35 depending upon the year of the tax return. We also note there are four 
separate FEIN numbers stated on a supporting statement to this return. 
6 
 IRS Form 1040, Schedule C, Part I, Line 1. 
7 
 IRS Form 1040, Schedule C, Part 11, Line 26 or Part 111, Line 37. 
8 
 IRS Form 1040, Schedule C (boarding care facility), Part 11, Line 3 1. 
No IRS form 1040 submitted. 
10 
No wages stated. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U.S. Department of Labor, 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage as 
of the priority date through an examination of hidher adjusted gross income. 
Counsel asserts that the petitioner's credit line is evidence of the ability to pay the proffered wage. In 
calculating the ability to pay the proffered salary, CIS will not augment the petitioner's net income or net 
current assets by adding in the petitioner's credit limits, bank lines, or lines of credit. 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 Barron 's Dictionary of Finance and investment Terms, 45 (1998). 
Since the line of credit is a "commitment to loan" and not an existent loan, the petitioner has not established 
that the unused funds from the line of credit are available at the time of filing the petition. As noted above, a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a cash asset. 
However, if the petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner must 
submit documentary evidence, such as a detailed business plan and audited cash flow statements, to 
demonstrate that the line of credit will augment and not weaken its overall financial position. Finally, CIS 
will give less weight to loans and debt as a means of paying salary since the debts will increase the 
petitioner's liabilities and will not improve its overall financial position. Although lines of credit and debt are 
an integral part of any business operation, CIS must evaluate the overall financial position of a petitioner to 
determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy 
the proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
The evidence submitted fails to establish that the petitioner has the continuing ability to pay the proffered 
wage beginning on the priority date and, continuing until the beneficiary obtains permanent residence. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.