dismissed EB-3 Case: Nail Salon

U.S. Citizenship 
and Immigration 
Services 
MATTER S-B.P-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 21,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a nail salon, seeks to employ the Beneficiary as an HR Coordinator. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant classification. 
See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
This employment-based immigrant classification allows a U.S. employer to sponsor a foreign 
national for lawful permanent resident status to work in a position that requires at least two years of 
training or experience. 
The Director, Nebraska Service Center denied the pel!t10n. The Director concluded that the 
Petitioner had not established the ability to pay the Beneficiary's proffered wage. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that the Director should 
have considered her personal bank statements toward demonstrating the ability to pay the proffered 
wage. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
The first step in sponsoring a foreign national for lawful permanent resident status in the skilled 
worker category is that the petitioner files an ETA Form 9089 (labor certification) with the U.S. 
Department of Labor (DOL). The date the labor certification is accepted for processing by the DOL 
establishes the priority date. See 8 C.F.R. § 204.5(d). The priority date provides the benchmark for 
when a visa will become available for the Beneficiary to adjust to lawful permanent status. Once the 
DOL approves the labor certification, certifying that employment of the foreign national will not 
negatively affect the U.S. labor market, the petitioner files the Form I-140, Immigrant Petition for 
Alien Worker, and the approved labor certification with U.S. Citizenship and Immigration Services 
(USCIS). Then, once USCIS approves the Form l-140 and a visa becomes available based upon the 
priority date, the beneficiary is eligible to become a lawful permanent resident of the United States. 
Here, the labor certification was accepted on October 9, 2014. The proffered wage as stated on the 
labor certification is $41,829 per year. On October 15, 2015, the Director denied the petition and 
held that the Petitioner had not established the ability to pay the proffered wage to the Beneficiary. 
Matter ofS-B.P-
The USers regulation at 8 e.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prmpective 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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
In evaluating whether a petitioner has the ability to pay the beneficiary's proffered wage, USers 
requires the petitioner to demonstrate financial 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 ofSonegawa, 12 I&N Dec. 612 (Reg'! eomrn'r 
1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, users 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 has not shown that it 
employed and paid the beneficiary the full proffered wage from the priority date in 2014 onward. 
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, users will next examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d Ill (1st eir. 2009). 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 Woodcraji Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th eir. 
1984)). 
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 does not exist as an entity apart from the individual owner. See Matter of United 
Investment Group, 19 I&N Dec. 248, 250 (eomm'r 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 the proffered wage. 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 e 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. See Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 
1982), ajf'd, 703 F.2d 571 (7th eir. 1983). 
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Matter ofS-B.P-
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioner 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 supports a family of four. The proprietor's tax return for 2014 
states an adjusted gross income of $52,768. 1 The record contains evidence of the sole proprietor's 
monthly expenses which she estimates as being $3,500 per month on average, which amounts to 
$42,000 annually and is 79.6% of the sole proprietor's adjusted gross income. Therefore, in 2014, 
the sole proprietor's adjusted gross income of$52,768 does not cover the annual household expenses 
of $42,000 and the proffered wage of $41,829. It is improbable that the sole proprietor could 
support herself on a deficit, which is what remains after reducing the adjusted gross income by the 
amount required to pay the proffered wage. 
The sole proprietor states that the amounts in her bank account demonstrate her ability to pay the 
Beneficiary's proffered wage. The sole proprietor's personal bank account statements state monthly 
balances as follows: 
Nov 2014 Dec 2014 Jan 2015 Feb 2015 Mar2015 
$20,526 $16,682 $15,287 $9,292 $4,081 
Aor2015 Mav 2015 Jun 2015 Jul2015 Aug2015 
$2,227 $3,100 $19,525 $30,488 $42,144 
The sole proprietor must be able to pay the Beneficiary's proffered wage of $41,829, which equates 
to $3,485 per month. The sole proprietor's balances in her bank account did not exceed the monthly 
amount needed to pay the Beneficiary's proffered wage in April and May 2015. Further, in using 
this account to pay the proffered wage, the sole proprietor's bank account balances would diminish 
by the monthly salary until the account balances available in February and March 2015 would be 
less than the monthly proffered wage amount. In addition, we note that the sole proprietor's bank 
account is a joint account with her husband. There is no evidence in the record that the sole 
proprietor's husband would agree to use this account to pay the Beneficiary's proffered wage. Also, 
it is unclear whether the amounts in this bank account were intended to cover the sole proprietor's 
monthly expenses. 
The sole proprietor states that her brokerage account and the individual retirement accounts (IRAs) 
for herself and her husband should be considered toward the ability to pay the Beneficiary's 
proffered wage. The record contains a copy of the sole proprietor's investment holdings summary 
which states that she has $50,771.57 in her Roth IRA as of July 21, 2015. The record indicates that 
the sole proprietor's husband has a Roth IRA and two other investment accounts together totaling 
$117,390.43. The sole proprietor asserts that the amounts in these IRA accounts are sufficient to pay 
1 See Form 1040, line 37. 
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(b)(6)
Matter ofS-B.P-
the proffered wage. However, withdrawals from a traditional IRA before age 59 ~ are considered 
early withdrawals. If an individual takes an early withdrawal from a traditional IRA, then in 
addition to any regular federal income or state income tax due on the withdrawal, the individual may 
also be required to pay a 10% tax penalty , with certain exceptions. See 26 U.S .C. § 72(t); 26 U.S. C. 
§ 408. Savings Incentive Match Plans for Employees (SIMPLE) IRAs follow the same withdrawal 
rules that apply to traditional IRAs, except that if an individual takes a distribution within the 2-year 
period beginning on the date on which he or she first participated in any SIMPLE IRA plan 
maintained by his or her employer, then the additional tax penalty is raised from 10% to 25%, with 
certain exceptions. Id. Withdrawals from Roth IRAs that are taken before the individual is 59 V2 
and before the account has been open for 5 calendar years may be taxed as ordinary income and may 
also be subject to the additional 10% early withdrawal penalty, with certain exceptions. See 26 
U.S.C. § 72(t); 26 U.S.C. § 408A. The record does not contain any evidence indicating that the sole 
proprietor or her husband would be willing to incur the tax penalty following a withdrawal from 
their Roth IRA accounts or that they would be able to pay the proffered wage after paying the federal 
or state income tax. The record does not contain any evidence indicating that the sole proprietor's 
husband is willing to forego these investment holdings to pay the Beneficiary ' s proffered wage. We 
do not find it likely that the sole proprietor and her husband would be willing to use funds that are 
set aside for the purpose of future retirement in their Roth IRA accounts to pay the Beneficiary ' s 
proffered wage. 
We note that the record contains evidence ofthe estimated value of the sole proprietor's home which 
is listed as $3 72,299 and the amounts of two $500,000 life insurance policies for the sole proprietor 
and her husband. The equity in the home and the value of the life insurance policies do not represent 
liquid assets that can be used to pay the Beneficiary's proffered wage. 
The sole proprietor states that she was paid $7,
500 in officer compensation from 
and states that this should be considered toward the ability to pay the proffered wage. But this 
amount was included on line 7 of the sole proprietor's tax return for 2014 and included in the 
calculation of adjusted gross income. Therefore, we will not consider this as separate income apart 
from the adjusted gross income figure . 
The Petitioner cites Ranchito Coletero, 2002-INA-104 (2004 BALCA), for the premise that a sole 
proprietor's overall fiscal circumstances should be considered when assessing the ability to pay the 
proffered wage. As indicated above, we have considered the sole proprietor ' s adjusted gross 
income, assets and personal liabilities as part of the ability to pay analysis. But we do not find that 
the evidence submitted in the record establishes sufficient fiscal circumstances to have the ability to 
pay the Beneficiary's proffered wage. 
US CIS may consider the overall magnitude of the petitioner's business activities in its determination 
of the petitioner 's ability to pay the proffered wage. See Matter of Sonegawa , 12 I&N Dec. 612 
(Reg ' l Cornrn'r 1967). USCIS may, at its discretion , consider evidence relevant to the petitioner ' s 
financial ability that falls outside of a petitioner's net income and net current assets. USCIS may 
consider such factors as the number of years the petitioner has been doing business, the established 
historical growth of the petitioner 's business , the overall number of employees, the occurrence of 
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Matter ofS-B.P-
any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, 
whether the beneficiary is replacing a former employee or an outsourced service, or any other 
evidence that users deems relevant to the petitioner's ability to pay the proffered wage. 
In the instant case, the Petitioner has been in business since 2005 and employs four workers. The 
record does not contain any evidence of any unexpected business expenses in 2014. The sole 
proprietor's tax return for 2013 indicates an adjusted gross income of $77,554, demonstrating a 
decrease from 2013 to 2014. The sole proprietor's 2014 Form 1040, Schedule C, states wages paid 
of $41,323 for four claimed employees; we find it unlikely that the Petitioner could double its wage 
expenses to hire just one additional employee. The record does not contain any evidence of the 
Petitioner's reputation in the industry or additional evidence of its historical financial growth from 
2005. Thus, assessing the totality of the circumstances in this individual case, it is concluded that 
the Petitioner has not established that it had the continuing ability to pay the proffered wage. 
II. CONCLUSION 
For the reasons stated above, the Petitioner has not established the ability to pay the proffered wage 
to the Beneficiary from the priority date onward. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 l&N Dec. 127, 128 
(BIA 2013). The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Maller of S-B.P-, ID# 16984 AAO June 21, 20 16) 
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