dismissed EB-3 Case: Janitorial Services

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3000 
Washington, DC 20529 
U. s. Citizenship 
and Immigration 
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FILE: EAC 04 046 5 103 5 Office: VERMONT SERVICE CENTER Date: SLP 1 5 200s 
IN RE: Petitioner: 
Beneficiary: 
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 
EAC 04 046 5 1035 
Page 2 
DISCUSSION:' The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a residential cleaning business. It seeks to employ the beneficiary permanently in the United 
States as a supervisor janitorial service. 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. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. 5 204.5(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 regulation at 8 CFR 8 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or employers 
giving the name, address, and title of the trainer or employer, and a description of the 
training received or the experience of the alien. 
(B) Skilled workers. 
 If the petition is for a skilled worker, the petition must be 
accompanied by evidence that the alien meets the educational, training or experience, 
and any other requirements of the individual labor certification, meets the requirements 
for Schedule A designation, or meets the requirements for the Labor Market Information 
Pilot Program occupation designation. The minimum requirements for this 
classification are at least two years of training or experience. 
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. 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. Comm. 1977). 
EAC 04 046 51035 
Page 3 
Here, the Form ETA 750 was accepted on April 30, 2001 .' The proffered wage as stated on the Form ETA 
750 is $14.52 per hour ($30,201.60 per year). The Form ETA 750 states that the position requires two years 
of experience. 
The petitioner's business was established in 1995, and, he employed seven individuals at the time of 
preparation of the petition. 
On appeal, counsel submits additional evidence. 
With the petition, counsel submitted copies of the following documents: the original Form ETA 750, 
Application for Alien Employment Certification, approved by the U.S. Department of Labor; a prior 
employment letter; and, a schedule C from U.S. Internal Revenue Service Form tax return for 2002 as well as 
other documentation. 
Because the director determined the evidence submitted with the petition was insufficient to demonstrate the 
petitioner's continuing ability to pay the proffered wage beginning on the priority date, consistent with 8 
C.F.R. 8 204.5(g)(2), the director requested on July 19, 2004, pertinent evidence of the petitioner's ability to pay 
the proffered wage beginning on the priority date. 
The director requested, inter alia, evidence of petitioner's U.S. federal tax returns for 2001 and 2002. The 
director requested the petitioner provide copies of the beneficiary's W-2 Wage and Tax Statements. Further, 
since the 1-140 petitioner's business is a sole proprietorship to determine the ability of the petitioner to pay the 
proffered wage and meet his living costs, the director requested petitioner submit a statement of recurring 
household expenses for the petitioner's family. This statement must indicate all of the family's household 
living expenses.2 
In response to the request for evidence, counsel submitted copies of some of the requested documents. 
The director denied the petition on November 18, 2004, finding that the evidence submitted did not establish 
that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date. 
1 
 It has been approximately five 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." 
* The petitioner's business is a sole proprietorship. Therefore, to determine the ability of the petitioner to pay 
the proffered wage and meet her living costs, the director requested petitioner 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 includes 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. 
EAC 04 046 5 1035 
Page 4 
On appeal, counsel asserts that the director erred as a matter of fact and law,3 and submitted a letter dated 
June 2 1,2005, from petitioner's accountant. 
The tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $30,201.60 per year from the priority date of April 30,2001: 
In 200 1, the Form 1040 stated adjusted gross income of $62,100.00. 
Therefore in tax year 2001 the petitioner adjusted gross income was sufficient to pay the proffered wage of 
$30,201.60 per year. The petitioner's personal expenses must also be considered. 
In determining the petitioner's ability to pay the proffered wage during a given period, U.S. Citizenship and 
Immigration Services (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. Evidence was submitted to show that the petitioner employed 
the beneficiary. 
 In 2001 and 2002, the petitioner paid the beneficiary $19,653.00 and $22,427.16 
respectively. 
Unlike a corporation, a sole proprietorship is not legally separate from its owner. 
 Therefore the sole 
proprietor's income, liquefiable 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. In addition, they 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 unlikely that a petitioning entity structured as a 
sole proprietorship could support himself, his spouse and five dependents on a gross income of approximately 
$20,000 where the beneficiary's proposed salary was $6,000 (or approximately thirty percent of the 
petitioner's gross income). 
In the instant case, the sole proprietor supports a family of three. No personal expense information was 
provided by the petitioner although requested by the director. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The 
non-existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
5 103.2(b)(2)(i).~ 
3 
 Counsel's statement on appeal contains no specific assignment of error. Alleging that the director erred in 
some unspecified way is an insufficient basis for an appeal. Counsel or petitioner in this matter submitted no 
brief or explanatory statement. 
4 
 This is a critical failure by the petitioner in this case since the adjusted gross income of $62,100.00 in tax 
year 2001 plus the wages paid of $19,653.00 minus the proffered wage of $30,201.60 leaves $5 1,55 1.40 for 
payment of the petitioner's personal expenses in that year. However, since the petitioner has declined to 
present evidence of her personal expense, this determination cannot be made. We cannot speculate the 
evidence that might have been submitted on this issue. We note the director has previously requested this 
evidence. 
EAC 04 046 5 103 5 
Page 5 
The petitioner's accountant stated in a letter dated May 10, 2005, that upon receipt of the visa by the 
beneficiary, the beneficiary will be able not only to do his present job, but by the elimination of all present 
subcontractors and one employee, perform their jobs saving the petitioner their compensation and hisher 
wage. 
He therefore argues that consideration of the beneficiary's potential to increase the petitioner's revenues is 
appropriate, and establishes with even greater certainty that the petitioner has more than adequate ability to 
pay the proffered wage. The petitioner has not, however, provided any standard or criterion for the evaluation 
of such earnings. For example, the petitioner has not demonstrated that the beneficiary will replace less 
productive workers, or has a reputation that would increase the number of customers. 
Proof of ability to pay begins on the priority date, that is April 30, 2001, when petitioner's Application for 
Alien Employment Certification was accepted for processing by the U. S. Department of Labor. Petitioner's 
taxable income is examined from the priority date. It is not examined contingent upon some event in the 
future. Further, in this instance, no detail or documentation has been provided to explain how the 
beneficiary's employment as a supervisor janitorial service will significantly increase petitioner's profits. 
This hypothesis cannot be concluded to outweigh the evidence presented in the corporate tax returns. 
Logically, if petitioner eliminates all subcontractors and one employee, she will have less need for a 
supervisor since her human resources will be reduced. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.