dismissed EB-3 Case: Jewelry

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3000 
Washington, DC 20529 
.- 
U.S. Citizenship 
and Immigration 
, Services 
PUBLIC COPYa** 
\ 
Office: TEXAS SERVICE CENTER Date: WO6m - 
I 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 8 1153(b) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
; 
4 
obert P. Wiemann, Chief 
' Administrative Appeals Office 
A" 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a jeweler. It seeks to employ the beneficiary permanently in the United States as a repair 
techniciadjeweler. 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, noting that the evidence in the record was unclear as to whether the 
 . 
petitioner is the same as the business that filed the ETA 750. 
It is noted that counsel has not provided a Form G-28, Notice of Appearance as Attorney or Representative, 
with the petitioner's signature consenting to counsel's representation in these proceedings. However, as the 
director has recognized counsel in previous correspondence, a copy of the AAO's decision will be forwarded 
to counsel. 
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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original March 9, 2005 denial, one of the issues 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 lawll permanent residence. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. 5 1153(bj(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 
 , 
or seasonal 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. In a case where the prospective United States employer employs 100 or more 
workers, the director may accept a statement fi-om a financial officer of the organization 
which establishes the prospective employer's ability to pay the proffered wage. In 
appropriate cases, additional evidence, such as profit/loss statements, bank account records, 
or personnel records, may be submitted by the petitioner or requested by [Citizenship and 
Immigration Services (CIS)]. 
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 was accepted for processing by any office within the employment 
system of the Department of Labor. See.8 CFR 8 204.5(d). The priority date in the instant petition is April 
30,2001. The proffered wage as stated on the Form ETA 750 is $30,000 annually. 
Page 3 
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 appeal1. Relevant evidence submitted on 
appeal includes counsel's brief, a letter from the petitioner's certified public accountant (CPA), a copy of the 
petitioner's Form SS-4 A lication for Employer Identification Number (EN, a copy of the petitioner's Articles 
of Incorporation for *copies of the petitioner's 2001 and 2002 Schedule Cs, Profit or Loss From 
Business, and copies of the petitioner' 2003 and 2004 Forms 1120S, U.S. Income Tax Return for an S 
Corporation. Other Relevant evidence includes a complete copy of the petitioner's 2001 Form 1040, U.S. 
Individual Income Tax Return. The record does not contain any other evidence relevant to the petitioner's ability 
to pay the proffered wage. 
The CPA7s letter states: 
Please be advised that in 2001 
 operating with gross revenues of 
$309,550.00 and a net profit of 
 $20 000.00 in wage expenses. In my 
professional opinion this demonstrates ample income to suppo 
S 
2001 as the company 
intends on hirin-the sole em lo ee and therefore leaving 45,235.00 as the surplus 
for this hire. In 2002, the tax return fo *ow net income of $62,010.00. This 
amount is enough to cove-income requirement. In 2003 the company did have some 
difficulties as did most United States companies as the economic environment became very soft. 
However, in 2004 the climate had improved and the 2004 tax return shows ordinary income of 
$58,565.00 whch is an amount that clearly supports income. 
The Form SS-4 shows the petitioner applying 
 aded as New York Jeweler, and 
also shows the petitioner as having a prior EIN 
The petitioner's 2001 Form 1040 reflects an adjusted gross income of $53,486, and Schedule C reflects gross 
receipts of $309,550, wages paid of $20,000, and a net profit of $25,235. 
The petitioner's 2002 Schedule C reflects gross receipts of $193,931, wages paid of $6,250, and a net profit of 
$62,010. The complete Form 1040 was not submitted; therefore, there is no evidence of the petitioner's adjusted 
gross income in 2002. 
The petitioner's 2003 and 2004 Forms 1120s reflect ordinary incomes or net incomes of -$13,475 and $58,666, 
respectively. The petitioner's 2003 and 2004 Forms 1120s also reflect net current assets of $1,957 and $3,011, 
respectively. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $30,000 
based on its net profits, and on the beneficiary becoming the sole employee of the business. 
1 
 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. 3 103.2(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 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. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS requires the petitioner to demonstrate hancial 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 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on April 22, 2001, the beneficiary did not 
include the petitioner as a past or present employer. In addition, counsel has not provided any Forms W-2, 
Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, issued by the petitioner for the 
beneficiary indicating that the petitioner employed the beneficiary in 2001 through 2004. Therefore, the 
petitioner has not established that it employed the beneficiary in 2001 through 2004. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, CIS will next 
examine the petitioner's net income figure as 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 Cop v. Sava, 632 F. Supp. 1049,1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9' Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
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), ard., 703 F.2d 571 (7' Cir. 1983). In K.C.P. Food Co., Inc., the court held that CIS had 
properly relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, 
rather than the petitioner's gross income. 623 F.Supp at 1084. The court specifically rejected the argument that 
CIS should have considered income before expenses were paid rather than net income. Finally, there is no 
precedent that would allow the petitioner to "add back to net cash the depreciation expense charged for the year." 
See also Elatos Restaurant Cop, 632 F. Supp. at 1054. 
In 2001 and 2002, the petitioner operated as 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)' afd, 703 F.2d 571 (7'h Cir. 1983). 
Page 5 
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 supported a family of four in 2001 and an undetermined number in 
2002 (the complete Form 1040 was not submitted which would have shown the family number). In 2001, the 
petitioner's adjusted gross income of $53,486 was $23,486 more than the proffered wage of $30,000. While 
it appears that the petitioner has funds to pay the proffered wage in 2001, the petitioner failed to provide, and 
the director failed to request, a list of its monthly personal expenses. Therefore, the AAO is unable to 
determine if the petitioner had sufficient funds to pay the beneficiary the proffered wage of $30,000 and to 
, support a family of four. 
The petitioner failed to provide its complete 2002 Form 1040; therefore, the petitioner's adjusted gross income for 
2002 is unknown. The AAO is unable to determine if the petitioner had sufficient funds to pay the proffered 
wage of $30,000 and to support a family of four from the petitioner's adjusted gross income in 2002. 
In 2003 and 2004, the petitioner operated as an S corporation. Therefore, the petitioner's net income is not the 
only statistic that can be used to demonstrate a petitioner's ability to pay a proffered wage. If the net income 
the petitioner demonstrates it had available during that period, if any, added to the wages paid to the 
beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS will review 
the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner uses in its 
business. Those depreciable assets will not be converted to cash during the ordinary course of business and 
will not, therefore, become funds available to pay the proffered wage. Further, the petitioner's total assets 
must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in the 
determination of the petitioner's ability to pay the proffered wage. Rather, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilities.' A 
corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current 
liabilities are shown on lines 16 through 18. If a corporation's end-of-year net current assets are equal to or 
greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net 
current assets. The petitioner's net current assets in 2003 and 2004 were $1,957 and $3,011, respectively. The 
petitioner could not have paid the proffered wage of $30,000 in 2003 or 2004 from its net current assets. 
Counsel contends that in 2001 the petitioner had a net profit of $25,235 after "taking out $20,000 in wage 
expenses." Counsel further contends that since the company intends to hire the beneficiary as its sole 
employee, there would be $45,235 as the surplus for this hire. The record does not, however, name the worker, 
state histher wages, verify hislher full-time employment, or provide evidence that the petitioner has replaced or 
will replace hider with the beneficiary. In general, wages already paid to others are not available to prove the 
ability to pay the wage proffered to the beneficiary at the priority date of the petition and continuing to the 
present. Moreover, there is no evidence that the position of the individual currently employed involves the same 
duties as those set forth in the Form ETA 750. The petitioner has not documented the position, duty, and 
2 
 According to Barron's Dictionary of Accounting Terms 117 (3'* ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
Page 6 
termination of the worker who performed the duties of the proffered position. If that employee performed other 
kinds of work, then the beneficiary could not have replaced him or her. 
Counsel claims that the petitioner's 2002 taxes show a net income of $62,010, and that this amount is enough 
to cover the beneficiary's income requirement. While the petitioner's Schedule C from its Form 1040 does 
show a net income of $62,010, there is no indication that the petitioner realized an adjusted gross income of 
this amount, since the complete 2002 taxes were not supplied. In a sole proprietorship, the petitioner's ability 
to pay the proffered wage is based on its adjusted gross income, not just the business income, as the petitioner 
must also have sufficient hds to support his family after paying the beneficiary's wage. 
Counsel asserts that in 2003, the petitioner had some difficulties as the economy had rapidly declines and the 
employment rate increased. However, the petitioner has not provided any verifiable evidence of how the 
economic decline and employment rate increase specifically affected its business or why such a decline would 
not show the petitioner was unable to pay the proffered wage. In 2003, the petitioner realized a net income of 
-$13,475 and net current assets of $1,957. The petitioner could not have paid the proffered wage of $30,000 
from either its net income or its net current assets in 2003 
Counsel contends that in 2004 the petitioner's taxes show an ordinary business income of $58,666, more than 
enough to support the beneficiary's income requirements. Counsel is correct. The petitioner's net income of 
$58,666 is $28,666 more than the proffered wage of $30,000. The petitioner has established its ability to pay 
the proffered wage in 2004. 
Finally, if the petitioner does not have sufficient net income or net current assets to pay the proffered salary, 
CIS may consider the overall magnitude of the entity's business activities. Even when the petitioner shows 
insufficient net income or net current assets, CIS may consider the totality of the circumstances concerning a 
petitioner's financial performance. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In Matter 
of Sonegawa, the Regional Commissioner considered an immigrant visa petition, which had been filed by a 
small "custom dress and boutique shop" on behalf of a clothes designer. The district director denied the 
petition after determining that the beneficiary's annual wage of $6,240 was considerably in excess of the 
employer's net profit of $280 for the year of filing. . On appeal, the Regional Commissioner considered an 
array of factors beyond the petitioner's simple net profit, including news articles, financial data, the 
petitioner's reputation and clientele, the number of employees, future business plans, and explanations of the 
petitioner's temporary financial difficulties. Despite the petitioner's obviously inadequate net income, the 
Regional Commissioner looked beyond the petitioner's uncharacteristic business loss' and found that the 
petitioner's expectations of continued business growth and increasing profits were reasonable. Id. at 615. 
Based on an evaluation of the totality of the petitioner's circumstances, the Regional Commissioner 
determined that the petitioner had established the ability to pay the beneficiary the stipulated wages. 
As in Matter of Sonegawa, CIS may, at its discretion, consider evidence relevant to a petitioner's financial 
ability that falls outside of a petitioner's net income and net current assets. CIS may consider such factors as 
the number of years that the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation withiti its industry, whether the beneficiary is replacing a 
former employee or an outsourced service, or any other evidence that CIS deems to be relevant to the 
petitioner's ability to pay the proffered wage. In the instant case, the petitioner has provided only three 
complete tax returns and one Schedule C (2002), which are not enough evidence to establish that the business 
has met all of its obligations in the past or to establish its historical growth. There is also no evidence of the 
petitioner's reputation throughout the industry. 
After a review of the record, it is concluded that the petitioner has not established its ability to pay the salary 
offered as of the priority date of the petition and continuing until 'the beneficiary obtains lawful permanent 
residence. 
The second issue in these proceedings is whether the petitioner has established that it is the same business as 
the one that filed the ETA-750. 
I 
In an undated letter, the petitioner states: 
New York Gold has operated in North Carolina gince 1997. The comDanv recentlv changed 
names to New York Jewelry and the address to 
-e business is still located in the Durham, North Carolrna area (where the job was 
advertised for labor certification) and is in the exact same business (i.e. jewelry). The only 
changes are the name and physical location. These changes have not altered this business in 
any way, shape, or form, and the job market is the same. 
In response to a Notice of Intent to Deny, the petitioner submitted a letter, dated January 3,2005, stating that 
due to liability concerns, the owner incorporated the business under the name of Sadiq, Inc. and doing 
business at New York Jeweler. The etitioner submitted a copy' of Form SS-4, Application for Employer 
Identification Number, fordThat Form shows that the business was started or ac uired on June 19, 
2002 and that the applicant had a 
 lied for an employer identification number fo 
 June 
1998 in Memphis, Tennessee. ~mployer-identification number (*. 
On appeal, counsel states: 
The Notice of Intent to Deny dated 12/6/2004 asked that we submit documented evidence 
that New York Jewelry is the same business ast a different address. That 
evidence was sent on January 3, 2005, and that evidence with all due respect clearly 
demonstrated by documented evidence that New York Jewelry are the 
same entity. The service was sent a letter by the owner explaining the reason for the change, 
an Application 
 and Articles of Incbrporation. The service states 
s made in the documents submitted that reference New 
York Jewelry an 
 correct. The application for a new Employer Tax 
Id. Number that was submitted clearly shows all of the evidence needed to demonstrate that 
are the same busineid (see attachment). On line 1, 
s the legal name of the corporation - the articles of 
2 states that New York Jewelry is the trade name. Line 
17a was checked with a "yes" meaning 
 id. ~imber was issued and line 
17b states that the 
 is still the same - 
retail jewelry as stated in line 14 and 
 Carolina 
market area. The prior tax Id. Number for the new 
entity was given the change was to protect the 
owner as to potential liability issues. The business itself remained the same. 
Counsel is mistaken. While the Application for Employer I 
 vide the information as 
counsel claims, nowhere on the application does it confirm tha 
 d New York Jewelry are 
one and the same. Line 17a, which was marked "yes," asks, "Has the applicant ever applied for an employer 
identification number for this or any other business?" Although L 
trade name shown on the prior application, it doesn't necessarily equ 
Jewelry. The petitioner has not provided any verifiable evidence tha 
 New York Jewelry 
are the same. There is also no evidence thamo longer exists, and although the petitioner 
claims to have incorporated due to liability concerns there is no explanation for the change of address. As 
such, the petitioner has not established that and New York Jewelry are one and the same. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal do 
not overcome the decision of the director. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed