dismissed EB-3 Case: Packing And Shipping

U.S. Citizenship 
and Immigration 
Services 
In Re: 24400871 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 20, 2023 
The Petitioner, a sole proprietor who operates packing and shipping franchises in California, seeks to 
permanently employ the Beneficiary as an administrative assistant. The proprietor requests the 
Beneficiary's classification under the third-preference, immigrant visa category for "skilled workers ." 
See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
The Director of the Nebraska Service Center denied the petition and dismissed the Petitioner's 
following two motions. The Director concluded that the proprietor did not demonstrate his required 
ability to pay the proffered wage of the offered position. On the same ground, we dismissed his appeal 
and his following 17 individual or combined motions to reopen or reconsider. See In re: 18712508 
(AAO Jul. 25, 2022). 1 
In this motion to reconsider, the Petitioner asserts that we: 
• Engaged in "affirmative misconduct," entitling him to equitable estoppel; 
• Erred by not considering Federal Poverty Guideline amounts; 
• Improperly rejected evidence; and 
• Disregarded factors demonstrating his ability to pay the proffered wage . 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of evidence . See Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010). Upon 
review , we conclude that the Petitioner's arguments do not demonstrate his required continuous ability 
to pay the offered position's proffered wage. We will therefore dismiss the motion. 
I. LAW 
A motion to reconsider must establish that our most recent decision misapplied law or U.S. Citizenship 
and Immigration Services (USCIS) policy based on the record at the time of the decision's issuance . 
1 "Motions for reopening immigration proceedings are disfavored for the same reasons as are petitions for rehearing and 
motions for a new trial on the basis of newly discovered evidence." INS v. Doherty, 502 U.S. 314, 323 ( 1992) ( citing INS 
v. Abudu, 485 U.S. 94 (1988)). 
8 C.F.R. § 103.5(a)(3). We may grant a motion that meets these requirements and demonstrates 
eligibility for the requested benefit. 8 C.F.R. § 103.5(a)(4). 
The Petitioner's motion includes evidence. On the Form I-290B, Notice of Appeal or Motion, 
however, the proprietor identified his filing as a "motion to reconsider." As we must decide a motion 
to reconsider based on the prior record, we will not consider the Petitioner's additional evidence. 2 
II. ANALYSIS 
A petitioner must demonstrate their ability to pay a proffered wage, from a petition's priority date until 
a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay 
must generally include copies of annual reports, federal tax returns, or audited financial statements. 
Id. 
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full proffered 
wage each year, beginning with the year of a petition's priority date. If a petitioner did not annually 
pay a beneficiary the full proffered wage or did not pay the beneficiary at all, USCIS considers whether 
the business generated annual amounts of net income or net current assets sufficient to pay any 
differences between the proffered wage and the wages paid. If net income and net current assets are 
insufficient, USCIS may consider other factors affecting a petitioner's ability to pay a proffered wage. 
See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 3 
The accompanying certification from the U.S. Department of Labor (DOL) states the proffered wage 
of the offered position of administrative assistant as $17.16 an hour, or $35,692.80 a year based on a 
40-hour work week. The petition's priority date is December 8, 2006, the date DOL accepted the 
labor certification application for processing. See 8 C.F.R. § 204.5( d) ( explaining how to determine a 
petition's priority date). 
We previously found sufficient evidence of the Petitioner's ability to pay the proffered wage from 
2006 - the year of the petition's priority date - through 2009, and from 2013 through 2019. The 
Petitioner, however, has not demonstrated his continuing ability to pay from 2010 through 2012. As 
a sole proprietor, he must establish that his annual personal income or net current assets in 2010, 2011, 
and 2012 equal or exceed corresponding annual amounts combining the proffered wage and living 
expenses of him and his dependents. E.g., Estrada-Hernandez v. Holder, 108 F. Supp. 3d at 945. 
A. Estoppel 
The Petitioner asserts that, because we raised new issues in these proceedings, we improperly 
prevented him from addressing issues beyond those in our most recent decisions. Citing a precedent 
decision of the U.S. Circuit Court of Appeals for the Ninth Circuit, the Petitioner states: "Given its 
2 While a motion to reconsider must demonstrate that our most recent decision misapplied law or policy based on the 
record at the time of the decision, a motion to reopen must state new facts, supp01ted by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). 
3 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLC v. Napolitano. 558 F.3d 111, 118 (1st Cir. 2009); Estrada-Hernandez v Holder, 108 F. Supp. 3d 936. 945 
(S.D. Cal. 2015). 
2 
affirmative misconduct and arbitrariness in raising novel issues, the AAO is equitably estopped from 
restricting the Petitioner from making arguments outside the scope of the 'prior decision."' See Villena 
v. INS, 622 F.2d 1352, 1361 (9th Cir. 1980) (en bane) (estopping the immigration service from 
claiming that a noncitizen inadequately pursued an immigrant visa petition where the agency did not 
respond to the submission for nearly four years). 
As our most recent decision indicates, however, a regulation limits a motion's scope to "the prior 
decision." 8 C.F.R. § 103.5(a)(l)(i). By restricting the Petitioner's arguments to the issues in our 
prior decisions, we merely followed the regulation. Contrary to the Petitioner's argument, complying 
with a regulation does not constitute affirmative misconduct. We may deny a petition that does not 
follow specific, legal requirements even if a service center did not identify all the grounds for denial. 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 
F.3d 683 (9th Cir. 1983). Thus, we may raise previously unaddressed issues. 
Further, estoppel is an equitable form of relief that only courts may grant. Chang v. United States, 
327 F.3d 911,924 (9th Cir. 2003); Matter of Hernandez-Puente, 20 I&N Dec. 335, 338-39 (BIA 1991). 
As an administrative agency, we lack equitable powers. Id. Thus, the Petitioner cannot rely on 
estoppel in these proceedings. 
B. The Federal Poverty Guideline 
The Petitioner renews his argument that, in determining his ability to pay, we erred by not using 
Federal Poverty Guideline amounts. He notes that, rather than a sole proprietor's own estimates of 
their annual living expenses, USCIS' National SOP (Standards of Procedure) for Form I-140 petitions 
discuss using relevant amounts from the Federal Poverty Guideline. 4 He asserts that we must explain 
why we did not use poverty guideline amounts, which are less than his expense estimates for the 
relevant years. 
The USCIS Policy Manual contains the Agency's "official policies." USCIS Policy Manual, "About 
the Policy Manual," https://www.uscis.gov/policy-manual. In contrast, the National SOP cited by the 
Petitioner is an older document that does not constitute official USCIS policy. 5 The policy manual 
does not require use of poverty guideline amounts when determining ability to pay. See 6 USCIS 
Policy Manual E(4)(A) (discussing "ability to pay the proffered wage"). Thus, contrary to the 
regulatory requirement for a motion to reconsider, the Petitioner cites no law or policy - nor are we 
4 The Federal Pove1iy Guideline is a simplified version of federal pove1iy thresholds used for determining financial 
eligibility for certain federal programs. Because the guideline does not reflect regional differences in costs of living. 
comparisons across the country may be misleading. U.S. Dep't of Housing & Human Servs., ASPE (Office of the Asst. 
Sec'y for Planning & Evaluation). "Frequently Asked Questions," https://aspe.hhs.gov/topics/poverty-economic­
mobility/poverty-guidelines/frequently-asked-questions-related-poverty-guidelines-poverty. 
5 The USCTS website does not contain the SOP. An on line copy of the document states: "Important: This SOP is not 
intended to be. and should not be taken as, an authoritative statement of the rules of decision for Form I-140 visa petition 
cases ... Thus. nothing in this SOP creates any substantive or procedural right or benefit that is legally enforceable by 
any party against the United States or its agencies or officers or any other person." 
3 
aware of any - requiring us to determine a sole proprietor's ability to pay by using poverty guideline 
amounts. 6 
The Petitioner notes that an ability-to-pay finding is an essential part of USCIS' role in determining 
whether a job offer is "realistic." See Matter of Great Wall, 16 I&N Dec. 142, 145 (Reg'l Comm'r 
1977). He therefore asserts that we should focus on his job offer rather than on the accuracy of his 
expense estimates. 
But the accuracy of the Petitioner's expenses affects whether his job offer is realistic. The more 
accurate his expense estimates, the better the indication of whether he can realistically afford to 
permanently employ the Beneficiary in the offered position. In our experience, most petitioning sole 
proprietors can live above the Federal Poverty Guideline and choose to do so. Thus, petitioners' own 
estimates of their annual living expenses are usually more accurate than poverty guideline amounts 
and better indicators of whether job offers are realistic. Thus, the Petitioner has not demonstrated that 
our omission of Federal Poverty Guideline amounts from our ability-to-pay analysis misapplies law 
or policy. 
C. Disregarded Evidence 
The Petitioner contends that we improperly disregarded evidence of funds in an individual retirement 
account (IRA) that he could have used to pay the Beneficiary's proffered wage in 2010 and 2012. The 
record, however, shows that we applied the funds when finding sufficient evidence of his ability to 
pay m pnor years. 
The funds stem from the Petitioner's "401(k)" retirement account with a prior employer. See 26 U.S.C. 
§ 401(k). He submitted evidence that he "rolled over" the 401(k) funds into an IRA in June 2008 and, 
about two years later, transferred the IRA to another financial manager. 7 In our June 8, 2015 decision 
on the Petitioner's combined motions to reopen and reconsider, we accepted the funds as part of the 
evidence of his ability to pay in 2007 and 2008. Thus, we considered the funds. But their payment 
towards the Beneficiary's wages in 2007 and 2008 would have exhausted them, barring their 
demonstration of the Petitioner's ability to pay in 2010 or 2012. 
D. Sonegawa 
The Petitioner contends that consideration of other factors demonstrates his continuous ability to pay 
the proffered wage. See Matter of Sonegawa, 12 I&N Dec. at 614-15. He states that he began his 
business in 2005 with one store and one employee, and now has three stores and 13 workers. Also, 
the record contains evidence that he has a good reputation with the franchiser of his stores. 
6 As our prior decision states, the National SOP does not require USCTS to use Federal Poverty Guideline amounts when 
determining a sole proprietor's ability to pay a proffered wage. Rather, guideline amounts "may be used as a reference 
point for evaluating ability to pay." T-140 National SOP, 124, https://www.olender.pro/sites/default/files/ 
Standard%20Operating%20Procedures%20%28 SOP%29%20T-l 40%20-%20USCTS%20-%202007. pdf ( emphasis 
added). 
7 Copies of statements submitted by the Petitioner show that, despite their management by different financial companies, 
his IRAs shared the same account number from 2008 through 2012. 
4 
But, unlike the store owner in Sonegawa, who initially could not demonstrate her ability to pay a 
proffered wage in one of 10 years, the Petitioner has not established his ability to pay for three, 
consecutive years - 2010, 2011, and 2012. The insufficient evidence of his ability to pay over multiple, 
consecutive years distinguishes his case from Sonegawa. See Taiyang Foods Inc. v USCIS, 444 
Fed.Appx. 115, 115 (9th Cir. 2011) ("Sonegawa is applicable to this case only if failure ... to pay the 
proffered wage was an anomaly amongst profitable years.") Thus, a totality of the circumstances 
under Sonegawa does not establish the Petitioner's continuous ability to pay the proffered wage. 8 
III. CONCLUSION 
The motion does not demonstrate our misapplication of law or policy in finding insufficient evidence 
of the Petitioner's required continuous ability to pay the proffered wage. We will therefore affirm the 
appeal's dismissal. 
ORDER: The motion to reconsider is dismissed. 
8 Our prior decisions have sufficiently addressed the motion's remaining claims about credit lines. The Petitioner does not 
advance any new arguments as to why those decisions misapplied law or policy. See 8 C.F.R. § 103.5(a)(3). We therefore 
decline to reconsider the motion's remaining arguments. 
5