dismissed EB-3 Case: Jewelry

I 
 , U.S. Department of flomeland Security , 
-$' r&pB~*~:data dle8dd to 
 20 Mass Ave , N w , ~tn 3000 
Washington, DC 20529 1 
d U.S. Citizenship 
Y: and Immigration 
\ * Services 
I 
r 
' : FILE: Office: CALIFORNIA SERVICE CENTER Date: 0 6 2m 
-1 1 
PETITION: 
 Petltion for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3) 
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of the Immigration and Nationality Act, 8 U.S.C. 8 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. 
( 
Robert P. ~iemain, Chief 
Adm~nlstrative Appeals Office 
\ 
I, 
J 
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f -~ 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 a jewelry manufacturer and wholesale'r. It seeks to.employ the beneficiary permanently in 
the United States as a jeweler. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the 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 and that the petitioner failed to provide 
evidence to prove the beneficiary's qualifying experience. The director denied the petition accordingly. 
On appeal, counsel submits a brief statement and e~idence.~ 
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,8 C.F.R. 9 204.5(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 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. 5 
204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
The instant petitioner filed an identical petition (CIS Receipt Number: WAC-02-284-54644) on September 
20, 2002. The petition was based on the same approved labor certification in the same proffered position on 
behalf of the instant beneficiary. That petition was denied on May 28, 2003 because the director determined 
that the petitioner failed to establish its ability to pay the proffered wage. 
In addition, while the instant petition was pending another petitioning entity filed an 1-140 immigrant petition 
(WAC-06-037-50895) on behalf of the instant beneficiary on November 14,2005. The petition was based on 
another labor certification but in'the same position and was approved by the California Service Center on 
April 28,2006. 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(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). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
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stated on its Form ETA 750 Application for Allen Employment Certification as certified by the U.S. Department 
of Labor and submitted wlth the instant petihon. Matter of Wzng's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted on August 21, 2000. The proffered wage as stated on the Form ETA 
750 is $1 1.50 per hour ($23,920 per year). The Form ETA 750 states that the position requires four (4) years 
of experience in the job offered. 
On the petition, the petitioner claimed to have been established in 1985, to have a gross annual income of 
$174,056, to have a'net annual income of $60,160, and to currently employ 2 workers. On the Form ETA 
750B, the beneficiary did not claim to have worked for the petitioner. 
The petitioner submitted the following documents as supporting documentation regarding ability to pay with 
the initial filing: Form 1040 Individual Income Tax Return filed by the owner of the petitioner for 2000 and 
2001, documentation pertinent to the owner's real estate properties and reference letters from other owners in 
the industry regarding the petitioner's business. 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 September 7, 2004, the director issued a request for evidence (WE) pertinent to that ability. 
The director specifically requested the tax return for 2002 and 2003 with all schedules and attachments, Form 
DE-6 Quarterly Wage and Withholding Report for the last four quarters, and a statement of monthly expenses 
for the sole proprietor's family. In response, the petitioner submitted the tax returns for 2002 and 2003, Form 
DE-6 for the third and fourth quarters of 2003 and the first and second quarters of 2004 and a statement 
regarding the sole proprietor's monthly expenses. On December 14, 2004 the director denied the petition, 
finding that the petitioner did not establish that it had the ability to pay the proffered wage beginning on the 
priority date. 
On appeal counsel assets that the tax returns and documents on the sole proprietor's real estate properties 
establish the petitioner's ability to pay the proffered wage. 
In determining the petitioner's ability to pay the proffered wage during a given period, 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. In the instant case, the petitioner did not submit W-2 forms or 
any other compensation documents for the beneficiary and did not claim that it hired and paid the beneficiary 
the proffered wage. 
The evidence indicates that the petitioner is a sole proprietorship. 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. 111. 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 (approximately thirty percent 
of the petitioner's gross income). 
Therefore, for a sole proprietorship, CIS considers net income to be the figure shown on line 33,3 Adjusted 
Gross Income, of the owner's Form 1040 U.S. Individual Income Tax Return. The record contains copies of 
the Form 1040 U.S. Individual Income Tax Return of the sole proprietor for 2000 through 2003. The tax returns 
demonstrated the following financial information concerning the petitioner's ability to pay the proffered wage 
of $23,920 per year. 
In 2000, the Form 1040 stated adjustable gross income of $46,920. 
In 200 1, the Form 1040 stated adjustable gross income of $48,69 1. 
In 2002, the Form 1040 stated adjustable gross income of $50,799. 
In 2003, the Form 1040 stated adjustable gross income of $7 1,184. 
The petitioner's adjusted gross income on Form 1040 was $19,000 in 2000, $24,77 1 in 200 1, $26,879 in 2002 
and $47,264 in 2003 more than the beneficiary's proffered wage each.year. Therefore, the petitioner had 
sufficient income to pay the proffered wage to the beneficiary for years-2000 through 2003. However, the 
petitioner submitted a statement of monthly expenses for the sole proprietor's household. The statement 
indicates that the monthly expenses of the sole proprietor's household were $3,577 (or $42,924 per year). 
Taking the living expenses into account the sole proprietor could not meet his four member household's 
living expenses of $42,924 per year with $19,000 in 2000, $24,771 in 2001 and $26,879 in 2002 while only 
for 2003 the sole proprietor had sufficient income both to pay the proffered wage and to sustain himself and 
his three dependents. 
CIS will consider the sole proprietorship's income and his or her liquefiable assets and personal liabilities as 
part of the petitioner's ability to pay.4 In the instant case, the record of proceeding does not contain any 
documents showing the petitioner's liquid assets. Instead, counsel submitted documents concerning the sole 
proprietor's owned real estates including the residential house and apartment units as evidence of the, 
petitioner's ability to pay the proffered wage. However, the AA0 does not generally accept a claim that a 
business relies on the value of homes and other real estate properties to show ability to pay because it is not likely 
that a petitioner would liquidate such assets in order to pay a wage. Therefore, counsel's reliance on the sole 
proprietor's real properties to demonstrate his ability to pay is misplaced. 
Counsel also misconstrues the use of the Affidavit of Support. The Affidavit of Support is utilized at the time 
a beneficiary adjusts or consular processes an approved immigrant visa to provide evidence to CIS that the 
beneficiary is not inadmissible pursuant to section 212(a)(4) of the INA as a public charge. The beneficiary in 
this matter has not advanced to a consular processing or adjustment of status phase of the proceeding. Af the 
1-140 immigrant visa filing state of proceeding, evidence is required of a sponsoring employer's ability to pay 
a proffered wage as of the priority date, not its guarantee to support the beneficiary in the future. 8 C.F.R. 
9 204.5(g)(2). There is no provision in the employment-based immigrant visa statutes, regulations, or 
precedent that permits a personal guarantee or Affidavit of Support to be utilized in lieu of proving ability to 
pay through prescribed financial documentation. In any event, the Affidavit of Support is a future pledge of 
The line for adjusted gross income on Form 1040 is Line 33 for most years, however, it is Line 35 for 2002 
and Line 34 for 2003. 
These may include, but are not limited to, sole proprietor's savings accounts, money market accounts, 
certificates of deposits, or other similar accounts. 
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payment and does nothing to alter the immediate eligibility of the instant visa petition. A visa petition may 
not be approved based on speculation of future eligibility or after the petitioner becomes eligible under a new 
set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 
I&N Dec. 45,49 (Comm. 1971). 
The petitioner has demonstrated that it had the ability to pay the proffered wage as well as to cover existing 
business and personal expenses in 2003, however, failed to demonstrate its ability to pay the proffered wage 
as well as to cover existing business and personal expenses in the years 2000 through 2002. The adjusted 
gross income in each year of 2000 through 2002 reported in tax returns demonstrated the ability to pay the 
proffered wage, however, failed to establish that the surplus would cover the sole proprietor's living expenses 
in these years. 
In his initial submission letter, counsel referred to Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), which 
relates to petitions filed during uncharacteristically unprofitable or difficult years but only in a framework of 
profitable or successful years. The petitioning entity in Sonegawa had been in business for over 11 years and 
routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in 
that case, the petitioner changed business locations and paid rent on both the old and new locations for five 
months. There were large moving costs and also a period of time when the petitioner was unable to do 
regular business. The Regional Commissioner determined that the petitioner's prospects for a resumption of 
successful business operations were well established. The petitioner was a fashion designer whose work had 
been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society 
matrons. The petitioner's clients had been included in the lists of the best-dressed California women. The 
petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges 
and universities in California. The Regional Commissioner's determination in Sonegawa was based in part 
on the petitioner's sound business reputation and outstanding reputation as a couturiere. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that 2000, 2001 and 2002 were uncharacteristically unprofitable years in a framework of 
profitable or successful years for the petitioner. 
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. Thus, the portion of the director's decision regarding the petitioner's continuing ability to 
pay the proffered wage beginning on the priority date is affirmed. 
The director also denied the petition because the petitioner failed to demonstrate that the beneficiary is 
qualified for the proffered position. A labor certification is an integral part of ths petition, but the issuance of a 
Form ETA 750 does not mandate the approval of the relating petition. To be eligible for approval, a beneficiary 
must have all the education, training, and experience specified on the labor certification as of the petition's 
priority date. 8 C.F.R. 8 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg. Comm. 1977); Matter of Katigbak, 14 I. & N. Dec. 45, 49 (Reg. Comm. 1971). The priority date in the 
instant petition is August 21,2000. 
CIS must look to the job offer portion of the labor certification to determine the required qualifications for the 
position. CIS may not ignore a term of the labor certification, nor may it impose additional requirements. See 
Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. 
Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1 st Cir. 198 1). 
The certified Form ETA 750 in the instant case states that the position of jeweler requires four (4) years of 
experience in the job offered. On the Form ETA 750B, signed by the beneficiary on July 27, 2000, he set forth 
his education and work experience. On Part 11, eliciting information of the names and addresses of schools, 
college and univer ities attended including trade or vocational training facilities), he indicated that he was 
Los Angeles, California, USA in the field of "ESL" from July 1999, 9ttendi.n and attend 
in Seoul, Korea in the field of "General" from March 1988 to 
February 1 
 is ing a jo s eld during the last three (3) years and any other jobs r 
occupation, he listed his experience as unemployed from February 1999 to the present, a "Jeweler 
in Seoul, Korea from May 
 at Glory in Seoul, Korea from January 1996 to 
May 1997, and a "Jeweler" 
 Febqary 1988 to July 1993. He 
provides no further 
 and work experience on this form, 
which is signed by the beneficiary under j. declaratioli under, pknalty of pe jury that the information was true 
and correct. 
The regulation at 8 C.F.R. 
 204.5(g)(l) states in pertinent part: . 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) or trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
In corroboration of the Form ETA2750B. tli:instant 1-140 ~etition was submitted on Sentember 24.2003 with 
a certificate of experience fr 
 ated February 21, 
2003, a certificate of experi 
 - 17,_,2003, and a 
certificate of experience from 
 to the beneficiary's qiialification as 
required by the above regulation. In response to the director's RFE requesting evidence to establish that the 
beneficiary possesses the experience listed on the Form ETA 750, counsel did not submit any additional 
evidence to establish the beneficiary's requisite ex erience. 
 On appeal counsel submits a letter of 
 . 
acknowled ement dated December 30,2004 fromdd a copy of notanal certificate of work experience 
issued b& January 1 1, 1999. 
 .- -- . 
fromdated February 21, 2003, a certificate of 
' 
ated February 1.7, 2003, and a certificate of experience 
tial filinn 
 ~nx;rPvPr th~ rennrt nf iqvesti&tion kom the 
llVlll UVVVVUU UUbuU I VVIUUIJ I I, IVVd VllCll CllV llllClUl Illlllb. AAVII~Vbl) LllU IUYVIC VI XI. -_.. . .._.. _- -... ...- 
Officer in Charge at USCIS in Seoul, Korea revealed that the Executive Manager oendicated that 
xuary 21, 2003 expenence certificate is a fraudulent document and provided a letter confirmed 
lever issued the February 21, 2003 certificate. The owner c) 
e beneficiary's employment wit1 
Seoul, Korea. The owner indicatedthe beneficiary was employed from 1993 until he 
or the United States in 1998 while his February 17, 2003 certificate of experience stated the employment 
dates of January 1996 through May 1997. The owner indicated that the certificate of experience was issued to 
the beneficiary's father and not to the beneficiary. The owner refused to verify the content of the certificate 
of experience and cla 
 ument or record of the beneficiary. The 
The owner o indicated 
ss closed about 1998. 
 However, the 
certificate of-experience alleged from Geobosa and dated February 17, 2003 was still using the address at 
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-ve years after the business was closed. Counsel did not submit any further documents except 
assertion of previous submission of the experience verification letters from-Zhe past employers with current 
contact information despite the director expressly requesting the petitioner to provide letters, contracts and 
pay statements to verify that the beneficiary worked for the listed employers, and to include a current point of 
contact, current address and current phone number at which CIS or other U.S. Governmen 
 n 
contact the foreign employer. Because of these defects, the certificates fro Glory and 
 11 
be given no weight in these proceedings. 
On appeal counsel does not ence to rebut these defects. Inst provides a letter 
dated December 30, 2004 fro 
 official leyrhead confirming tha 
 ed the Certificate 
- of Working Experience (Certificate No. to lthe beneficiary unde the 
' 
 Chairman (ex-chief director) on January 11, 
 ounsel a150 submits a copy of the notarial certiiicate of 
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experience'issued b- ~anuaj 1 1, 1999 to establish the beneficiary's requisite four years experience 
in the job offered in the instant case. 
This notarial certificate of experience states that the beneficiary obtained the following experience in the 
.occupation of Gold & Silver Smith in pertinent part: 
First of all, as counsel claims on  appeal this notarial certificate of experience dated January 1 1, 1999 from 
KJMA was initially submitted with the petitioner's previous petition (WAC-02-284-54644) filed on behalf of 
the beneficiary on September 20, 2002. Counsel submits the certificate on appeal for the first time for this 
matter. The petitioner did not submit this certificate with the instant petition or responsively despite the 
director requesting the petitioner to submit evidence to establish the beneficiary's experience in his RFE dated . . 
September 7, 2004. The purpose of the request for evidence is to elicit further information that clarifies . 
whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. 
$8 ,103.2(b)(8) and (12). The failure' to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 
 8 C.F.R. $,103.2(b)(14). As in the present matter, where a 
petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond 
to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of ~baigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner 
had wanted the submitted evidence to be considered, it should have submitted the documents in response to 
the director's request for evidence. Id. under-the circumstances, the AAO need not, and does not, consider 
the sufficiency of the evidence submitted on appeal. Consequently, the appeal will be dismissed. 
Secondly, the regulation requires the petitioner to submit evidence relating to qualifying experience or 
training in the form of letter(s) from current or former employer(s) or trainer(s) and such a letter shall include 
the name, address, and title of the writer, and a specific description of the duties performed by the alien or of 
the training received. The regulation allows consideration of other documentation but onlv in the 
circumstance that such a letter is-unavailable. See 8 C.F.R. $ 204.5(g)(l). ~er a private'industry 
association, it did not hire or train the beneficiary never worked for or obtained training 
from-he certificate of experience fro not a regulatory-prescribed letter from a current or 
former employer or trainer. The a specific description of the duties performed by 
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the beneficiary or of the training received as required by the regulation. The certificate does not explain why 
the experience letters from the beneficiary's former employers are not available and does not have objective 
evidence to support the contents of the certificate. Therefore, the notarial certificate of employment dated 
January 11, 1999 fro-nnot be considered as primary regulatory-prescribed evidence to establish 
that the beneficiary had worked as a jeweler for at least four years as required by the ETA 750. 
Therefore, the petitioner did not establish with regulatory-prescribed evidence the beneficiary's prior at least 
four years of experience as a jeweler. 
The assertions of counsel on appeal and the evidence submitted on appeal fail to overcome the decision of the 
director. The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section'291 of the Act, 8 U.S.C. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.