dismissed EB-3 Case: Meat Cutting

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PUBLU: COPY 
U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER 
EAC 04 102 54173 
 Date: MAY 1 6 ;)(I@ 
PETITION: 
 Immigrant Petition for Alien Worker as an Other, Unskilled Worker Pursuant to 
fj 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 3 1153(b)(3) 
ON BEHALF OF PETITIONER: 
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. 
~obeh P-~iemann, Chief 
Administrative Appeals Office 
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 grocery and meat stores sole proprietorship. 
 It seeks to employ the beneficiary 
permanently in the United States as a meat-cutter. 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)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The regulation at 8 C.F.R. 8 204.5(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 fj 204.5(1)(3)(ii) states, in pertinent part: 
(A) General. 
 Any requirements of training or experience for slulled 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. 
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. Cornm. 1977). 
Here, the Form ETA 750 was accepted on April 27, 2001. The proffered wage as stated on the Form ETA 
750 is $13.67 per hour ($28,433.60 per year). The Form ETA 750 states that the position requires two years 
experience. 
On appeal, counsel submits a legal brief and 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; U.S. Internal 
Revenue Service Form tax returns for 2001, and 2002; and, the beneficiary's photographs. 
Page 3 
The director denied the petition on September 22, 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. 
On appeal, counsel asserts that the petitioner has presented evidence to prove its ability to pay the proffered 
wage, and, the director ignored the additional evidence submitted. Further, counsel asserts that the 
petitioner's net current assets are greater than the proffered wage. 
Counsel has submitted the following documents to accompany the appeal statement: 
 an explanatory 
statement from the petitioner's bookkeeper with a financial statement for the petitioner's fiscal year ending 
December 3 1,2001. 
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. No evidence was submitted to show that the petitioner 
employed the beneficiary. According to the certified Alien Employment Application, the beneficiary was 
unemployed from January 1996 to present (1.e. April 21,2001 which is the date of signing the Form 750, Part 
B). 
Alternatively, in determining the petitioner's ability to pay the proffered wage, CIS will 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), affd, 703 
F.2d 571 (7th Cir. 1983). 
Unlike a corporation, a sole proprietorship is not legally separate from its owner. Therefore the sole 
proprietor's income 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 (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 tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $28,433.60 per year from the priority date of April 27,200 1 : 
Page 4 
In 200 1, the Form 1040 stated adjusted gross income' of $1 1,447.00. 
In 2002, the Form 1040 stated adjusted gross income of $24,006.00. 
Counsel asserts that the petitioner has presented evidence to prove its ability to pay the proffered wage. In the 
instant case, the sole proprietor supports himself. In 2001 and 2002, the sole proprietorship's adjusted gross 
incomes of $1 1,447.00 or $24,006.00 do not cover the proffered wage of $28,433.60 per year, or the personal 
living expenses for an year for the petitioner and payment of the proffered wage. 
Counsel asserts in his brief accompanying the appeal that there are other ways to determine the petitioner's 
ability to pay the proffered wage from the priority date. According to regulation,2 copies of annual reports, 
federal tax returns, or audited financial statements are the means by which petitioner's ability to pay is 
determined. 
Counsel asserts that the petitioner has presented evidence to prove its ability to pay the proffered wage, and, 
the director ignored the additional evidence submitted. Further, counsel asserts that the petitioner's net 
current assets are greater than the proffered wage. 
As above stated, the financial data submitted by the petitioner were two tax returns stating adjusted gross 
incomes for 2001 and 2002 of $1 1,447.00 or $24,006.00 respectively. Since there is no evidence that the 
petitioner employed the beneficiary, those sums are less than the proffered wage of $28,433.60 per year. 
Further counsel stated that the director ignored the additional evidence submitted. There is no evidence 
submitted that the director ignored any evidence in the record of proceeding. Further, counsel asserts that the 
petitioner's net current assets are greater than the proffered wage. The form of business the petitioner has 
chosen is a sole proprietorship. A review of the Form 1040 tax returns submitted demonstrates that the tax 
returns do not express current assets, current liability, or their calculated result, net current assets. 
Counsel contends that the financial statements submitted state assets of $44,602.00 comprised of (according 
to the balance sheet submitted) cash, inventories and good will. Counsel states that the business' inventory 
and cash assets in combination with other assets are evidence of the ability to pay. "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. It is duplicative of the petitioner's finances to combine net current assets with the taxable 
income and loss as stated above. 
The unaudited financial statements that petitioner submitted are not persuasive evidence. According to the 
plain language of 8 C.F.R. tj 204.5(g)(2), where the petitioner relies on financial statements as evidence of a 
petitioner's financial condition and ability to pay the proffered wage, those statements must be audited. 
Unaudited statements are the unsupported representations of management. The unsupported representations 
of management are not persuasive evidence of a petitioner's ability to pay the proffered wage. Thus, the 
unaudited financial statements are of little evidentiary value in this matter. 
Counsel asserts that the petitioner may demonstrate its ability to pay the proffered wage by the amount listed 
as "goodwill" on the petitioner's tax return. The AAO does not agree. Goodwill is regarded as an intangible 
asset based on a business's reputation, customer based, and other such factors, and is not, by definition, an 
IRS Form 1040, Line 33. 
8 C.F.R. $204.5(g)(2). 
Page 5 
asset that will be converted to cash within one year. See Barron's Dictionary of Finance and Investment 
Terms 239,243 (5th Ed.). 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. 
Counsel's contentions cannot be concluded to outweigh the evidence presented in the tax return as submitted 
by petitioner that shows that the petitioner has not demonstrated its ability to pay the proffered wage fiom the 
day the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.