dismissed EB-3 Case: Restaurant

dentifying data deleted to 
prevent dearly unwarranted 
invasion of personal privacy 
PUBLIC copy 
U.S. Department of HomeIand Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
. -.* 
CENTER 
 Date: 
 MAR 2 4 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. 5 1153(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, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The preference visa petition was denied by the Director (Director), California Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Japanese restaurant. It seeks to employ the beneficiary permanently in the United States as 
a restaurant cook. 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 statement 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. § 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 C.F.R. 5 204.5(d). Here, the Form ETA 750 was accepted for processing on 
July 16,2001. The proffered wage as stated on the Form ETA 750 is $750 per week ($39,000 per year). The 
Form ETA 750 states that the position requires two (2) years experience in the job offered. On the Form ETA 
750B, the beneficiary did not claim to have worked for the petitioner. 
On the petition, the petitioner claimed to have been established in April 2000, to have a gross annual income 
of $169,536, to have a net annual income of $17,586, and to currently employ two (2) workers. The evidence 
in the record of proceeding shows that the petitioner is structured as a sole proprietorship. 
Because the petition was filed without any documents pertinent to the petitioner's continuing ability to pay 
the proffered wage beginning on the priority date, on March 24, 2004, the director issued a request for 
evidence (RFE). In accordance with 8 C.F.R. 5 204.5(g)(2), the director requested that the petitioner provide 
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 Sorinno, 19 I&N Dec. 764 (BIA 1988). The AAO will first evaluate the decision of the director, based on the 
evidence submitted prior to the director's decision. The evidence submitted for the first time on appeal will then 
be considered. 
Page 3 
copies of annual reports, federal tax returns, or audited financial statements to demonstrate its continuing 
ability to pay the proffered wage beginning on the priority date. The director specifically requested the 
petitioner's tax returns for the years 2001 to 2003, and Form DE-6, Quarterly Wage Reports for all employees 
for the last four quarters. 
In response, the petitioner submitted Form 1040 for the years 2001 through 2003, and a bank statement for the 
line of credit from Bank of America. 
On August 3, 2004, the director determined that the petitioner had not demonstrated that it had the continuing 
ability to pay the proffered wage as well as to cover the owner's personal expenses from the priority date and 
denied the petition accordingly. 
On appeal, counsel asserts that the loans of $124,000 made to the company by its shareholders, line of credit 
of $130,000 and wages paid demonstrate that the petitioner had the ability to pay the proffered wage. The 
petitioner claims that it will increase its gross revenues by at least $43,000 per year based on current daily 
sales of $830. 
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 did not submit W-2 forms for 
the beneficiary and did not claim that he hired and paid the beneficiary the proffered wage. 
The evidence indicates that the petitioner is a sole proprietorship. Unlike a corporation, a sole proprietorship 
is not legally separate from its owner. Therefore the sole proprietor's income, liquefiable 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. In addition, they 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'h 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 (approximately thirty percent 
of the petitioner's gross income). 
Therefore, for a sole proprietorship, CIS considers net income to be the figure shown on line 332, Adjusted 
Gross Income, of the sole proprietor's Form 1040 U.S. Individual Income Tax Return. The record contains 
copies of the Form 1040 U.S. Individual Income Tax Return of the sole proprietor for 2001 through 2003. The 
tax returns demonstrated the following financial information concerning the petitioner's ability to pay the 
proffered wage of $39,000 per year. 
The line for adjusted gross income on Form 1040 is Line 33 for most years, however, it is Line 35 for 2002 
and Line 34 for 2003. 
In 2001, the Form 1040 stated adjustable gross income of $17,548. 
In 2002, the Form 1040 stated adjustable gross income of $24,818. 
In 2003, the Form 1040 stated adjustable gross income of $32,443. 
The sole proprietor's adjusted gross income on Form 1040 was $21,452 in 2001, $14,182 in 2002 and $6,557 
in 2003 less than the beneficiary's proffered wage. Therefore, the petitioner had insufficient income to pay 
the proffered wage to the beneficiary for years 2001 through 2003 even without consideration of its owner's 
household personal expenses. 
Former counsel advised in response to the director's RFE that the beneficiary would replace the owner as a 
full time permanent chef and that except for wages paid to the owner himself, the petitioner did not hire and 
pay any other employees. Schedule Cs of Form 1040 show that the petitioner paid wages of $5,400 in 2001, 
$25,200 in 2002 and $31,900 in 2003. However, the wages paid to the sole proprietor in these years are not 
reflected on line 7 of Form 1040 tax returns and supported by W-2 forms for the sole proprietor. The 
petitioner did not provide evidence that the petitioner has replaced or will replace the owner with the 
beneficiary. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 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. Comm. 1972)). Furthermore, 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. Moreover, there is no evidence that the owner involves the same duties 
as those set forth in the Form ETA 750. The petitioner has not documented the duty, and termination of the 
worker who performed the duties of the proffered position. If the owner performed other kinds of work, then 
the beneficiary could not have replaced him. The petitioner must address this issue in any future proceedings. 
CIS will consider the sole proprietorship's income and his or her liquefiable assets and personal liabilities as 
part of the petitioner's ability to pay. In the instant case, counsel claims on appeal that the sole proprietor 
made loans of $124,000 to the company and submits the declaration of the sole proprietor to support the 
claim. The declarations that have been provided on motion are not affidavits as they were not sworn to by the 
declarant before an officer that has confirmed the declarant's identity and administered an oath. See Black's 
Law Dictionary 58 (West 1999). Statements made in support of a motion are not evidence and thus 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). Neither counsel's assertion nor the sole proprietor's 
declaration is supported by any corroborative evidence. 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 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Furthermore, a sole proprietorship is not separate from its owner. The sole proprietor is 
responsible for his own and the business' liabilities with the business' assets and his own personal assets. The 
loan made to the business by the sole proprietor has already been accounted for Schedule C of Form 1040 
filed by the sole proprietor, and therefore, cannot be considered as additional liquefiable assets in determining 
the petitioner's ability to pay the proffered wage. 
Counsel also contends that the line of credit should be considered as additional liquefiable assets of the sole 
proprietor in determining the ability to pay. Counsel submitted four pages of Account Transaction History 
from Bank of America on the account 68240012034799 for a period from January 3, 2001 to April 18, 2003 
as evidence of the petitioner's line of credit in the amount of $130,000. However, the bank account record 
submitted does not show the petitioner as the account's holder. In calculating the ability to pay the proffered 
salary, CIS will not augment the petitioner's net income or net current assets by adding in the credit limits, 
bank lines, or lines of credit. A "bank line" or "line of credit" is a bank's unenforceable commitment to make 
loans to a particular borrower up to a specified maximum during a specified time period. A line of credit is 
not a contractual or legal obligation on the part of the bank. See Barron's Dictionary of Finance and 
investment Terms, 45 (1998). 
Since the line of credit is a "commitment to loan" and not an existent loan, the petitioner has not established 
that the unused funds from the line of credit are available at the time of filing the petition. As noted above, a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Moreover, the petitioner's existent loans will be reflected in the balance sheet provided in the tax 
return or audited financial statement and will be fully considered in the evaluation of the net current assets. 
Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a cash asset. 
However, if the petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner must 
submit documentary evidence, such as a detailed business plan and audited cash flow statements, to 
demonstrate that the line of credit will augment and not weaken its overall financial position. Finally, CIS 
will give less weight to loans and debt as a means of paying salary since the debts will increase the firm's 
liabilities and will not improve its overall financial position. Although lines of credit and debt are an integral 
part of any business operation, CIS must evaluate the overall financial position of a petitioner to determine 
whether the employer is making a realistic job offer and has the overall financial ability to satisfy the 
proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Cornrn. 1977). 
The record of proceeding does not contain any evidence showing that any other liquefiable assets of the sole 
proprietor are available to be used to pay the beneficiary the proffered wage and cover the sole proprietor's 
household expenses. The petitioner must address this issue in any future proceedings. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage as 
of the priority date. Counsel's assertion and evidence submitted on appeal do not overcome the director's 
decision. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.