dismissed EB-3 Case: Law

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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 1153(b)(3) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
~'obert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a law office. It seeks to employ the beneficiary permanently in the United States as a 
secretary. 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 and denied the petition accordingly. 
On appeal, the petitioner submits a brief and additional evidence. 
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 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 5 204.5(d). Here, the Form ETA 750 was accepted for processing on 
April 23, 2001. The proffered wage as stated on the Form ETA 750 is $14.02 per hour, which amounts to 
$29,16 1.60 annually. 
The petitioner is structured as a sole proprietorship. With the petition, the petitioner submitted its individual 
income tax return with accompanying Schedule C, Profit or Loss from Business Statement, for 2002. 
Because the evidence submitted was deemed insufficient to demonstrate the petitioner's continuing ability to 
pay the proffered wage beginning on the priority date, on July 20, 2004, the director requested additional 
evidence pertinent to that ability. In accordance with 8 C.F.R. 5 204.5(g)(2), the director specifically 
requested that the petitioner provide copies of its 2001 federal tax return to demonstrate its continuing ability 
to pay the proffered wage beginning on the priority date. The director also specifically requested, inter alia, 
an itemized list of the sole proprietor's monthly expenses for 2001 and any evidence of wages actually paid by 
the petitioner to the beneficiary in 2001. 
In response, the petitioner submitted a letter stating that it did not employ the beneficiary in 2001 but did in 
2002 and 2003; its individual income tax return with accompanying Schedule C, Profit or Loss from Business 
Statement, for 2001; a 1099 and W-2 form issued by the petitioner to the beneficiary in 2002 and 2003 
reflecting wages in the amounts of $12,000 and $18,568.17, respectively. 
The director determined that the evidence submitted did not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date, and, on September 20, 2004, denied the 
petition. 
On appeal, the petitioner asserts that the director failed to consider his personal assets, such as non-taxable 
social security income and funds in bank accounts, 
 ial staff. Additionally, the 
petitioner states that one of his current secretaries, 
 would be terminating her 
position as secretary and assuming a position in accounting and thus the wages paid to her for her duties as 
secretary would be available for the proffered position. 
 The petitioner resubmits previously submitted 
evidence; proof of receipt of $3 
 in social security benefits in 2001; a copy of a W-2 form reflecting 
wages of $20,000 paid to Ms. 
 m 2001; copies of W-2 forms r 
 wages paid to two other 
secretarial staff members in 2001; an unnotarized affidavit from Ms. 
 stating that she would be 
dm 
terminating her position as secretary and intending to find a position in accounting; a copy of Ms. =~ 
diploma in accounting; a statement of a money market account in the sole proprietor's name for November 
2001 reflecting an average balance of $30,638.93; and a checking account statement in the petitioner's name 
reflecting an average balance of $5,668.44. 
The tax returns reflect the following information for the following years: 
Proprietor's adjusted gross income (Form 1040) $12,806 $5,756 
Petitioner's gross receipts or sales (Schedule C) $50,939 $39,188 
Petitioner's wages paid (Schedule C) $26,7 17 $34,780 
Petitioner's net profit from business (Schedule C) -$39,031 -$54,967 
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 established that it employed 
and paid the beneficiary $12,000 and $18,568.17 in 2002 and 2003, respectively. The petitioner conceded 
that it did not employ or pay any wages to the beneficiary in 2001 so it must illustrate that it can pay the full 
proffered wage in that year. Since the proffered wage is $29,161.60, the petitioner must illustrate that it can 
pay the remainder of the proffered wage for each year, which is $17,161.60 in 2002 and $10,593.43 in 2003. 
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). 
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 
Page 4 
does not exist as an entity apart from the individual owner. See Matter of United Investment Group, 19 I&N 
Dec. 248, 250 (Cornrn. 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" 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. 
The petitioner rebuts the director's determination that the sole proprietor failed to submit a list of his personal 
living expenses, stating on appeal that it did in fact submit the sole proprietor's expenses with reference to a 
detailed list of expense deductions accompanying the petitioner's Schedule C, Profit or Loss from Business 
statement, to the sole proprietor's individual income tax return. On appeal, the sole proprietor submits a 
supplemental list of his monthly expenses that include mortgage, food, utilities, clothing, transportation, 
medical insurance and costs totaling $1,971.79, which annualize to $23,661.48. The AAO considers the sole 
proprietor's list of personal living expenses as the expenses it will analyze for purposes of determining 
whether or not the petitioner can demonstrate its continuing ability to pay the proffered wage beginning on the 
priority date. 
In the instant case, the sole proprietor supports a family of three. In 2001, the sole proprietorship's adjusted 
gross income of $12,806 does not cover the proffered wage. Thus, it cannot establish the petitioner's ability 
to pay the proffered wage in that year especially since that amount does not cover the sole proprietor's 
personal living expenses, which brings the sole proprietor's net income to a deficit of -$10,855.48. The 
petitioner would also have to pay the proffered wage, which would further reduce that deficit to -$40,017.08 
since it is obligated to pay the full proffered wage. 
Likewise, in 2002, the sole proprietorship's adjusted gross income of $5,756 does not cover the difference 
between the wages actually paid to the beneficiary and the proffered wage of $10,593.43. Thus, it cannot 
establish the petitioner's ability to pay the proffered wage in that year especially since that amount also does 
not cover the sole proprietor's personal living expenses, which brings the sole proprietor's net income to a 
deficit of -$17,905.48. The petitioner would also have to pay the difference between the wages actually paid 
and the proffered wage, which would further reduce that deficit to -$28,498.91. 
The petitioner's 2003 tax return is not contained in the record of proceeding and thus that year may not be 
analyzed. However, it would be obligated to demonstrate that it could pay the difference between the wages 
it actually paid to the beneficiary and the proffered wage for that year, which is $10,593.43. 
On appeal, the petitioner states that the sole proprietor may rely upon his personal assets to pay the proffered 
wage. The Form SSA-1099-SM for 2001 reflects that the sole proprietor received $30,309.60 in social 
security benefits. The form states that part of that amount may be taxable income although the petitioner 
claims that it is not. No evidence was submitted to establish that the total amount is not taxable income. 
Page 5 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
Finally, the petitioner maintains a balance of $30,638.93 in a money market account from November through 
December 2001 and a balance of $5,576.62 from November through December 2001 in a business checking 
account. Thus, it is argued that the petitioner could use these funds to pay the proffered wage. The average 
balances are not substantial enough to cover the deficit described above for 2001 of -$40,017.08 and merely 
show the amount in an account on a given date without illustrating a sustainable ability to pay the proffered wage. 
The funds from the petitioner's business checking account would be reflected on its Schedule C and factored into 
the sole proprietor's adjusted gross income and thus will not be added into the funds available to pay the proffered 
wage. 
The petitioner advised that it would replace one worker and names the worker, states her wages, and verifies her 
employment. However, the language used by the petitioner and Ms. ndicates that she "intends1' to pursue 
a job in accounting, not that the petitioner has terminated her employment and replaced her 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. The petitioner has not documented 
the position, duty, and termination of the worker who performed the duties of the proffered position. 
The AAO also notes that Msdeclaration is not an affidavit as it was not sworn to or affirmed by the 
declarant before an officer authorized to administer oaths or affirmations who has, having confirmed the 
declarant's identity, administered the requisite oath or affirmation. See Black's Law Dictionary 58 (7th Ed., 
West 1999). Nor, in lieu of having been signed before an officer authorized to administer oaths or 
affirmations, do they contain the requisite statement, permitted by Federal law, that the signers, in signing the 
statements, certify the truth of the statements, under penalty of perjury. 28 U.S.C. 5 1746. Such unsworn 
statements made in support of a motion or appeal are not evidence and thus, as is the case with the arguments 
of counsel, are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 
(1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
The AAO has no adverse information pertaining to this case and thus does not doubt the veracity of the 
petitioner's and Ms. the sole proprietor's spouse, claim that Ms. will terminate her 
employment upon Ms. cquisition of a job in accounting. Additionally, the visa petition corroborates 
that the proffered p 
' ' 
not a new one. However, the sole proprietor's adjusted gross income combines 
his income with Msm income. Replacing her with the beneficiary may result in transferring the funds 
used to pay her salary to the petitioner's ability to pay the proffered wage; however, it also reduces the sole 
proprietor's adjusted gross income by the same amount and it is too speculative for these proceedin s to 
consider her potential wages if or when she might be hired for an accounting position. Thus, Ms. 
wages will not be considered towards the proffered wage. 
Adding the $30,309.60 in non-taxable social security income in 2001 to the funds from the sole proprietor's 
money market account, $30,638.94, would bring the deficit for that year up from -$40,017.08 to a surplus of 
$20,931.45 in 2001, which thus establishes the petitioner's ability to pay in that year. Adding the 2001 
surplus to its 2002 deficit results in -$7,567.46. The sole proprietor reported dividend income from a trust 
fund in the amounts of $17,686 in 2001 and $19,969.09 in 2002; however, these funds are factored into his 
adjusted gross income and cannot be considered additional funds to pay the proffered wage. Although the 
sole proprietor's tax returns reflect that there are two CD accounts, there is no evidence that the sole proprietor 
may access those. There is no regulatory-prescribed evidence for 2003 from which to analyze the petitioner's 
continuing ability to pay the proffered wage. Thus, the petitioner cannot establish its continuing ability to pay 
the proffered wage in 2002 or 2003. 
The petitioner has therefore failed to demonstrate that it has 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. 
5 136 1. The petitioner has met that burden. 
ORDER: The appeal is dismissed.