dismissed EB-3 Case: Painting

1dentilPtag dpt. Q 
Prevent dearly unwamanbed 
inv-jtm of pemal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
hk 
FILE: EAC 03 221 52407 Office: VERMONT SERVICE CENTER Date: 
 CCP 0 5 2006 
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. fj 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
EAC 03 221 52407 
Page 2 
DISCUSSION: 
 The preference visa petition was denied by the Director, Vermont Service Center. 
 A 
subsequent motion to reconsider was granted by the director and the previous decision of the director was 
affirmed. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a painting company. It seeks to employ the beneficiary permanently in the United States as a 
painter. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien 
Employment Certification, approved by the United States Department of Labor (DOL). 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. 
The record shows that the appeal is properly filed and 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 the decision. 
Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's January 13, 2005 denial, the single issue 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 lawful permanent residence. 
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 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, 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 DOL. See 8 C.F.R. 5 204.5(d). 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 DOL and submitted with the instant 
petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornrn. 1977). 
Here, the Form ETA 750 was accepted on April 30, 2001. The proffered wage as stated on the Form ETA 
750 is $23.50 per basic hour and $35.25 per overtime hour ($58,045.00 per year based on a 40 hour work 
week plus five hours of overtime per week). The Form ETA 750 states that the position requires two years of 
experience in the job offered or two years of experience as a supervisor in any industry. 
EAC 03 22 1 52407 
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 
1 
pertinent evidence in the record, including new evidence properly submitted upon appeal . 
 On appeal, 
counsel submits a brief and an affidavit dated February 11, 2005 fi-om the petitioner's owner. Other relevant 
evidence in the record includes the petitioner's owner's IRS Forms 1040, U.S. Individual Income Tax 
Returns, for 2001,2002 and 2003, and the beneficiary's IRS Forms W-2 for 2001 and 2003. The record does 
not contain any other evidence relevant to the petitioner's ability to pay the wage. 
The evidence in the record of proceeding shows that the petitioner was structured as a sole proprietorship in 
2001 and as a single-member limited liability company in 2002 and 2003.~ On the petition, the petitioner 
claimed to have been established in May 1993 and to currently employ three workers. On the Form ETA 
750B, signed by the beneficiary on June 3, 2002, the beneficiary claimed to have worked for the petitioner 
from October 1996 to the date he signed the Form ETA 750B. 
On appeal, counsel asserts that the petitioner's depreciation deductions should have been considered in the 
determination of the petitioner's ability to pay the proffered wage. 
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 lawhl 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 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 beneficiary's Forms W-2 for 2001 and 
2003 show compensation received from the petitioner of $14,700.00 and $16,600.00, respectively. Therefore, 
for the years 2001, 2002 and 2003, the petitioner has not established that it employed and paid the beneficiary 
the full proffered wage, but it did establish that it paid partial wages in 2001 and 2003. Since the proffered 
wage is $58,045.00 per year, the petitioner must establish that it can pay the difference between the wages 
actually paid to the beneficiary and the proffered wage, which is $43,345.00 and $41,445.00 in 2001 and 
2003, respectively. 
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. 5 103.2(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). 
2 
 Limited liability companies with a single member are generally "disregarded" for the purpose of filing a 
federal tax return. See Internal Revenue Service, Tax Issues for Limited Liability Companies, Publication 3402 
(Rev. 7-2000), at 2, available at http://www.irs.gov/pub/irs-pdflp3402.pdf. If the only member of an LLC is an 
individual, as indicated by the record in the instant case, the income and expenses of the LLC are reported on 
the member's IRS Form 1040, Schedule C, E, or F. 
EAC 03 22 1 52407 
Page 4 
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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the depreciation 
expense charged for the year. Plaintiffs cite no legal authority for this proposition. This argument 
has likewise been presented before and rejected. See Elatos, 632 F. Supp. at 1054. [CIS] and judicial 
precedent support the use of tax returns and the net incomefigures in determining petitioner's ability 
to pay. Plaintiffs' argument that these figures should be revised by the court by adding back 
depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537 
The petitioner was a sole proprietorship in 2001, 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 (Cornm. 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), aff'd, 703 F.2d 571 (7th 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. 
In the instant case, the sole proprietor supports himself, his wife and his daughter. The proprietor's IRS 
Forms 1040 reflect that his adjusted gross income was $41,885.00 in 2001. Therefore, in 2001, the sole 
proprietorship's adjusted gross income fails to cover the difference between the wages actually paid to the 
beneficiary and the proffered wage. The record does not contain a statement of the petitioner's monthly 
expenses for 2001. Regardless, it is improbable that the sole proprietor could support himself, his spouse and 
his child on a deficit, which is what remains after reducing the adjusted gross income by the difference 
between the wages actually paid to the beneficiary and the proffered wage in 2001 .3 
3 
 The record of proceeding does not contain any evidence of other liquid assets that the petitioner could use to 
pay the proffered wage. 
EAC 03 221 52407 
Page 5 
In 2002 and 2003, the petitioner was organized as a single-member limited liability company. Therefore, the 
petitioner's net income is reported on the member's IRS Form 1040, Schedule C at line 31. The record before 
the director closed on August 5, 2004 with the receipt by the director of the petitioner's submissions in 
response to the director's request for evidence. As of that date, the petitioner's 2003 federal income tax return 
is the most recent return available. The petitioner's tax returns demonstrate its net income for 2002 and 2003, 
as shown in the table below. 
In 2002, the Form 1040 Schedule C stated net income of $49,894.00. 
In 2003, the Form 1040 Schedule C stated net income of $66,202.00. 
Therefore, for the year 2002, the petitioner has not established that it had sufficient net income to pay the 
proffered wage. For the year 2003, the petitioner has established that it had sufficient net income to pay the 
difference between the wages actually paid to the beneficiary and the proffered wage. 
Therefore, from the date the Form ETA 750 was accepted for processing by the DOL, the petitioner had not 
established that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date 
through an examination of wages paid to the beneficiary or its net income except for 2003. 
The evidence submitted does not establish that the petitioner had 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. 
9 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.