dismissed EB-3 Case: Retail

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MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 10,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sole proprietor operating retail shipping stores, seeks to employ the Beneficiary as an 
administrative assistant. 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 thatrequires at least 2 years of training or experience. 
The Director, Nebraska Service Center, denied the petition. The Director determined that the 
Petitioner had not established its continuing ability to pay the Beneficiary's proffered wage from the 
priority date of December 8, 2006, onward. We dismissed the subsequent appeal that came before 
us, concluding that the Petitioner had not established its ability to pay the proffered wage. The 
Petitioner then filed eight motions to reopen and reconsider which were denied. In our last decision , 
we affirmed our prior decisions and concluded that the Petitioner had not established its ability to 
pay the proffered wage for 2009 through 2015 and that the Petitioner had not established the 
existence of a bonafide job offer. , 
The matter is now before us on a ninth motion to reopen and reconsider. On motion, the Petitioner 
has submitted a statement regarding the 
concerns raised in our previous decisions highlighting 
specific details regarding his assets that he states sufficiently establish his ability to pay the proffered 
wage. The Petitioner further provides some additional financial documentation and asserts that the 
job offered was a bonafide job opportunity. 
Upon review, we will deny the motion to reopen and reconsider. 
I. LAW 
A. General Requirement for Motions 
The provision at 8 C .F.R. § 103.5(a)(l)(i) limits a U.S. Citizenship and Immigration Services 
(USCIS) officer's authority to reopen the proceeding or reconsider the decision to instances where 
"proper cause" has been ·shown for such action . Thus, to merit reopening or reconsideration, the 
submission must not only meet the formal requirements for filing (such as, for instance, submission 
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of a Form I-290B, Notice of Appeal or Motion, that is properly completed and signed, and 
accompanied by the correct fee), but the Petitioner must also show proper cause for granting the 
motion., As stated in the provision at 8 C.P.R. § 103.5(a)(4), "Processing motions in proceedings 
before the Service," "[a] motion that does not meet applicable requirements shall be dismissed." 
B. Requirements for Motions to Reconsider 
The regulation at 8 C.P.R. § 1 03.5(a)(3), "Requirements for motion to reconsider," states: 
A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be 
supported by any pertinent precedent decisions to establish that the decision was 
based on an incorrect application of law or Service policy. A motion to reconsider a 
decision on an application or petition must [(3)], when tiled, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial 
decision. 
These provisions are augmented by the related instruction at Part 4 of the Form l-290B, which states: 
"Motion to Reconsider: The motion must be supported by citations to appropriate statutes, 
regulations, or precedent decisions when filed and must establish that the decision was based on an 
incorrect application of law or policy, and that the decision was incorrect based on the evidence of 
record at the time of decision." · 
A motion to reconsider contests the correctness of the prior decision based on the previous factual 
record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 
8 C.P.R. § 103.5(a)(3) and 8 C.P.R. § 103.5(a)(2). A motion to reconsider should not be used to 
raise a legal argument that could have been raised earlier in the proceedings. See Matter of Medrano, 
20 I&N Dec. 216, 219 (BIA 1990, 1991) ("Arguments for consideration on appeal should all be 
submitted at one time, rather than in piecemeal fashion."). Rather, any "arguments" that are raised 
in a motion to reconsider should flow from new law or a de novo legal determination that could not 
have been addressed by the affected party . Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) 
(examining motions to reconsider under a similar scheme provided at 8 
C.P.R. § 1003.2(b)); see also 
Martinez-Lopez v. Holder, 704 P.3d 169, 171-72 (1st Cir. 2013). Further , the reiteration ofprevious 
arguments or general allegations of error in the prior decision will not suffice. Instead, the affected 
pa~y must state the specific factual and legal issues raised on appeal that were decided in error or 
overlooked in the initial decision. See 0-S-G- , 24 I&N Dec. at 60. 
C. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 
1 03.5(a)(2), "Requirements for motion to reopen," states: "A motion to 
reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be 
supported by affidavits or other documentary evidence." This provision is supplemented by the 
related instruction at Part 4 of the Form I-290B , which states: "Motion to Reopen: The motion must 
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state new facts and must be supported by affidavits and/or documentary evidence demonstrating 
eligibility at the time the underlying petition or application was filed." 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all 
the attendant delays, the new evidence offered would likely change the result in the case." lvfatter of 
Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 
(lOth Cir. 2013). 
II. ANALYSIS 
A. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and be supported by cit~tions to 
pertinent statutes, regulations, and/or precedent decisions to establish that the decision was based on 
an incorrect application of law or USCIS policy. A motion to reconsider a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. See 8 C.F .R. § 103 .5( a)(3) (detailing the 
requirements for a motion to reconsider). Here, the Petitioner does not assert that our prior decision 
was based on an incorrect application of law or policy, nor does it cite to any pertinent statutes, 
regulations, or precedent decisions. Therefore, we will deny the Petitioner's motion to reconsider. 
B. Motion to Reopen 
A motion to reopen must state the new facts to be provided in the reopened proceeding and must be 
supported by affidavits or other documentary evidence. 8 C.F.R. § 1 03.5(a)(2). Any new facts 
submitted must also be of such significance that they would likely change the outcome of the case. 
In this case the Petitioner submits additional financial documentation for 2013 through 201 5 and a 
statement concerning the bona .fide nature of the job; but, as will discussed below, the evidence 
submitted is not sufficient to change the outcome of the case. 
Regarding the Petitioner's ability to pay the proffered wage, we held in our prior decision that the 
Petitioner has not established its ability to pay the proffered wage of $35,692.80 from 2009 through 
2015. The regulation 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 either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
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Thus, the petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date. See 8 C.F.R. § 204.5(d). The petitioner's ability to pay the proffered wage is an 
essential element in evaluating whether a job offer is realistic. See Matter qf"Great Wall, 16 I&N Dec. 
142 (Acting Reg'! Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2), In evaluating whether a job offer is 
realistic, USCIS 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 ql Sonegawa , 
12 I&N Dec. 612 (Reg' l Comm'r 1967). 
The new evidence submitted by the Petitioner with this motion pertains to 2013 through 2015. The 
new evidence is sufficient to establish the Petitioner's ability to pay the proffered wage in 2014 and 
- ~015. However, it does not establish the Petitioner's ability to pay the proffered wage in 2013. 
According to the documents submitted, the Petitioner paid the Beneficiary $23,450.84 in 2013, 
which is $12,241 .96 less than the proffered wage . In the same year, the Petitioner had an adjusted 
gross income of $61,335 .and annual expenses of $53,160, leaving only $8175 available. This 
amount is not sufficient to cover the difference between the proffered wage and the wages paid to 
the Beneficiary. 1 As such, the Petitioner has not established its ability to pay the proffered wage in 
2013. On motion, the Petitioner asserts that an "SBA Unconditional loan guaranty" would have 
been available to pay the wage obligation. As we noted in our last decision , if the Petitioner wishes 
to rely on loans as evidence of ability to pay, the Petitioner must submit documentary evidence to 
demonstrate that the loan will augment and not weaken its overall financial position. Here, the 
Petitioner has not done so; therefore, we will not consider the Petitioner's loan guaranty toward the 
ability to pay the proffered wage. 
Regarding the Petitioner's ability to pay in 2009 through 2012, we note that our prior decision 
included a year by year account of the Petitioner's financial information and a detailed analysis of 
the evidence, including the Petitioner's claims that the sale of his car could have covered the 
deficiency in 2009, that lines of credit were available for 2010, that funds spent on remodeling in 
2011 could have been used to pay the Beneficiary's wages, and that an unconditional loan guaranty 
could have covered the shortfall in 2012. For•this motion, the Petitioner reiterates the claims that 
were previously responded to, but does not submit any new facts or evidence in regard to its ability 
to pay in 2009 through 2012. As was noted in our prior decision, we do not find the value of the car, 
credit lines, and loans sufficient to establish the Petitioner's ability to pay the deficiencies in the 
years in question. 
1 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 (Comm '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. See 0 'Conner v. Atty. Gen., 
1987 WL 18243 (D. Mass. Sept. 29, 1987) (indicating that the personal assets and income of the sole proprietors are 
relevant to a determination of the ability of the sole proprietorship to pay the proffered wage) . 
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Although the Petitioner submits some new facts supported by documentary evidence on motion , they 
are not of such significance that they would overcome our prior decision finding that the Petitioner 
has not established its ·continuous ability to pay the proffered wage. 
Regarding the bonafide nature of the job opportunity , we noted in our prior decision that a search of 
government databases indicates that the Beneficiary entered the United States on a B-1 visa in 200 I 
and stated his address as in California , which was the same address as the 
sole proprietor. We stated that this made it appear that the Beneficiary knew the sole proprietor 
before the job offer was made and that he had close ties to the Petitioner, thus calling into question 
the existence of a bonafide job offer. We further discussed the factors that may determine whether a 
bona fide job offer exists. On motion, the Petitioner submits a statement indicating that he never 
lived at the address. However , the Petitioner did not otherwise address or submit any 
additional evidence to establish that the job opportunity was bonafide . We find that in the totality of 
the circumstances, the Petitioner has not submitted sufficient evidence to overcome this concern. 
The Petitioner must support its assertions with relevant , probative , and credible evidence sufficient 
to meet its burden of proof. See Matter of Chawathe, 25 I&N Dec. at 369. Here, the Petitioner has 
not provided sufficient evidence to establish the existence of a bona fid e job offer. 
"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the 
interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS v. 
Abudu, 485 U.S. 94, 107 (1988). Motions for the reopening of immigration proceedings are 
disfavored for the same reasons as 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). A party seeking to reopen a proceedin g bears a "heavy burden" of proof. INS v. Abudu , 
485 U.S. at 110. With the current motion, the Petitioner has not met that burden. As such, we will 
deny the motion to reopen. 
III. CONCLUSION 
For the foregoing reasons, we conclude that the Petitioner has not established its ability to pay the 
Beneficiary's proffered wage from 2009 through 2013 or that the proffered position constituted a 
bonafide job opportunity . ' 
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. § 136L The Petitioner has not met that burden. 
ORDER: The motion to reopen is denied. 
FUR>THER ORDER: The motion to reconsider is denied. 
Cite as Matter of ID# 112844 (AAO Feb. 10, 2017) 
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