dismissed EB-3 Case: Retail

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-U-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 17, 2020 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sole proprietor that operates! I 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 category. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i) , 8 U.S.C. § 1153(B)(3)(A)(i) . This employment-based "EB-3" 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 of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish its ability to pay the proffered wage of $35,692.80 per year from the priority date of 
December 8, 2006, onward. The Petitioner filed an appeal, which we dismissed. Like the Director, 
we found that the Petitioner did not establish its continuing ability to pay the proffered wage from 
the priority date onward. We dismissed 13 subsequent motions to reopen and/or reconsider, in 
whole or in part, on the same ground. 
The case is now before us on another motion to reopen and motion to reconsider. Upon review, we 
will dismiss the combined motions. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that 
satisfies these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
In our prior decisions, while finding that the Petitioner established its ability to pay the proffered in 
the years 2006-2008 , 2013-2015 , and 2016, we found that the Petitioner did not establish its ability 
to pay the proffered wage in the years 2009-2012 and 2017. Based on newly submitted evidence we 
now find that the Petitioner has established its ability to pay the proffered wage in 2009 and 2017. 
However, for the reasons discussed hereinafter we conclude that the Petitioner has still not 
Matter of T-U-S-
established its ability to pay the proffered wage in the years 2010, 2011, or 2012. Therefore, the 
Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
of December 8, 2006, onward. 
A. Motion to Reopen 
In support of the current motion to reopen the Petitioner submits a copy of the sole proprietor's 
federal income tax return (Form 1040) for 2017. Based on this document, a required form of 
evidence under 8 C.F.R. § 204.5(d), together with the previously submitted copy of the Beneficiary's 
2017 Form W-2, Wage and Tax Statement, showing that the wages paid by the Petitioner exceeded 
the proffered wage that year, we find that the Petitioner has established its ability to pay the 
proffered wage in 201 7. 
In our prior decisions we indicated that the Petitioner's sole proprietor, I I could 
establish his ability to pay the proffered wage in a given year if his adjusted gross income (AGI) 
recorded on his federal income tax return for an individual (Form 1040) equaled or exceeded his 
personal expenses plus the proffered wage of the Beneficiary. See, e.g., Ubeda v. Palmer, 539 
F.Supp. 647, 650 (N.D. Ill. 1982), aff.'d 703 F.2d 571 (7th Cir. 1983). With respect to the year 2009, 
we previously found that the sum ofl ts personal expenses and proffered wage obliration to 
the Beneficiary exceeded his AGI by $4,988. The Petitioner claimed in prior motions that I 
could have sold an automobile - a 1994 Mercedes-Benz S Class S320 - to raise his AGI above the 
sum of his personal expenses and lthe proliered wage, thus allowing him to pay the proffered wage 
that year. The record showed that purchased the above-identified automobile for $30,060 in 
October 2002 and that he was still the registered owner in 2005-06. However, the record did not 
show thatl , I still owned the Mercedes-Benz in 2009 or what the value of the car was at that 
time. In support of its current motion the Petitioner submits copies of registration and insurance 
documentation showing that I I continued to own the Mercedes-Benz automobile in the years 
2007-2010, as well as evidence of the value the car would have had in 2009. Based on the record 
now before us, we conclude that in 2009 the Mercedes-Benz automobile was more likely than not 
worth more than $4,988 - the amount by which thel Is personal expenses and proffered lagel 
~ation to the Beneficiary exceeded his AGI - and that by selling the automobile in 2009 
L_Js AGI would have been sufficient to pay the proffered wage that year. 
With regard to the years 2010-2012, we noted in our previous decision that the sum ofl Is 
personal expenses 1 and proffered wage obligation to the Beneficiary exceeded his AGI by $33,755 
in 2010, by $23,377.53 in 2011, and by $50,943.72 in 2012. With ~rrent motion the Petitioner 
submits a listing of expenses in 2010 and 2012 relating to anotherL_Jstore I 11 lhad 
purchased. The Petitioner does not explain the evidentiary significance of these expenses or how 
they serve to establish I ts ability to pay the proffered wage of $35,692.80 in 2010, 2011, or 
2012. The Petitioner resubmits a copy of the settlement statement of its loan from I I 
1 For 2011 and 2012 we subtracted froml , Is personal expenses the wages paid to some part-time workers who 
could have been replaced by the full-time employment of the Beneficiary. 
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Matter of T-U-S-
Bank (undated but evidently from 20 earlier and points out that it specifically designates 
$20,069.88 of the proceeds as a loan to at the I !Location" (in addition to 
a loan in the same amount designated fo,......,,.........,.=~re ~-~ at the I !Location"). These 
specific loan amounts apply tolls other stores, not the Petitioner in this proceeding, and 
there is no evidence in any eve'nnnartltese loan funds, or any portion thereof: remained unspent and 
still accessible in the years 2010-2012. The Petitioner also discusses various business and personal 
expenses that were allegedly discretionary or duplicative and could have been eliminated to make 
additional funds available to pay the proffered wage. Even if these specific expe7es were 
eliminated, however, they were far less than needed to cover the shortfall between s AGI in 
2010, 2011, and 2012, and the sum of his remaining business and personal expenses plus his 
proffered wage obligation to the Beneficiary in those years. 
The Petitioner asserts that for 2010 the net operating loss carryover of -$19, 782 recorded onD 
Os federal income tax return (page 1, line 21, of the Form 1040) should be deducted from his AGI 
shortfall of $33,755 that year. We do not agree. If an individual taxpayer's deductions are more 
than its income for a given year, the taxpayer may have a net operating loss (NOL). When carried 
back, the NOL reduces the taxable income of the relevant earlier year, resulting in a recomputation 
of the tax liability and a refund or credit of the excess amount paid. Carryovers produce a similar 
reduction in the taxable income of later years, and this reduces the tax payable when the return is 
filed. If a taxpayer is carrying forward an NOL, it shows the carryforward amount as a negative 
figure on the "Other Income" line the Form 1040. Because the NOL is related to another year's 
outcome, however, it must be omitted from the analysis of the individual's "bottom line" ability to 
pay the proffered wage in the year the NOL is recorded in the Form 1040. 
The Petitioner repeats its previous claim that the wages paid in 2011 and 2012 to part-time workers 
who would be replaced by the Beneficiary should be deducted from the proprietor's proffered wage 
obligations in those years, thereby reducing thel ~s AGI shortfall in 2011 and 2012. We 
already made those requested deductions in prior decisions, however, so the AGI shortfall figures for 
2011 and 2012 as stated in this decision already reflect the proprietor's expenditures for the part­
time workers in those years. 
The Petitioner states thatl !purchased a single-family house in 2003 and that his equity in the 
house could have been utilized to cover its proffered wage obligations in the years 2010, 2011, and 
2012. A personal residence, however, is not a readily liquefiable asset. The Petitioner has not 
explained how equity in his house could have been converted into cash funds in the years 2010-2012 
sufficient to cover the shortfall between I Is AGI and the sum of his personal expenses and his 
proffered wage obligation to the Beneficiary. 
The Petitioner asserts that we should consider the totality of its circumstances, including the 
historical growth and stability of its business over 13 years and its reputation within the industry, in 
determining its ability to pay the proffered wage, referring to Matter of Sonegawa, 12 I&N Dec. 612 
(Reg'l Comm'r 1967). Per Matter of Sonegawa USCIS may, at its discretion, consider evidence 
relevant to the petitioner's financial ability that falls outside of its net income and net current assets. 
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Matter of T-U-S-
We 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 petitioner's reputation within its 
industry, the overall number of employees, whether the beneficiary is replacing a former employee 
or an outsourced service, the amount of compensation paid to officers, the occurrence of any 
uncharacteristic business expenditures or losses, and any other evidence that users deems relevant 
to a petitioner's ability to pay the proffered wage. 
The Petitioner states thatl lhas been in business since purchasing his firstOstore in 2005, 
and subsequently purchased two additional stores. The Petitioner claims that the growth of 0 
c=]s business operations from one store to three is evidence that its job offer to the Beneficiary is 
realistic. With the current motion the Petitioner submits copies of two letters tol lin 2007 and 
2008 fromC7, ac=J company, relating to the otherc=]stores, and quotes a line from one of the 
letters which reads: "As a multiple center owner, you are part of an elite group of franchisees." 
Nothing in these letters, however, bears upon the Petitioner's ability to pay its proffered wage 
obligation to the Beneficiary in the later years of 2010-2012. The letters are from a related 
company, and thus do not reflect the Petitioner's reputation among other non-related companies or 
individuals in thq I industry. While the record does establish the Petitioner's ability to 
pay the proffered wage in the years before and after the three-year period of 2010-2012, that time 
period represents a considerable portion of the Petitioner's existence as a business and cannot be 
overlooked. The Petitioner has not submitted any evidence showing that it had uncharacteristic 
business expenditures or losses in the years 2010, 2011, or 2012. Based upon the evidence of 
record, therefore, we conclude that the Petitioner has not established its ability to pay the proffered 
wage in the years 2010-2012 based on the totality of its circumstances. 
For the reasons discussed above, the evidence supporting the motion to reopen is not sufficient to 
establish the Petitioner's ability to pay the proffered wage in the years 2010-2012, and thus does not 
establish the Petitioner's continuing ability to pay the proffered wage from the priority date onward. 
B. Motion to Reconsider 
In its motion to reconsider the Petitioner asserts once again that we should reduce the sole 
proprietor's household expenses in accord with the federal poverty guidelines (FPG) referenced in 
the users standard operating procedures for Form I-140 petitions (Users I-140 National SOP), 
rather than relying on the higher estimated personal expenses recorded onl Is federal income 
tax returns. We thoroughly considered and discussed this issue on our previous decision, ho~ever 2I 
and stated that we would not substitute FPG figures for the estimates of personal expenses b 
c=J on his federal income tax returns in determining the Petitioner's ability to pay the proffered 
wage. The Petitioner has not demonstrated that our decision not to utilize the FPG in our ability to 
pay determination was based on any incorrect application of law or users policy. 
The Petitioner also claims once again that we should consider its bank credit line and bank loan in 
assessing its ability to pay the proffered wage. These claims have been rejected in numerous prior 
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Matter of T-U-S-
decisions, and the Petitioner has not demonstrated that those decisions were based on any incorrect 
application of law or USCIS policy. 
Thus, the Petitioner has not established that any finding in our previous decision regarding the 
Petitioner's ability to pay the proffered wage in the years 2010-2012 was based on an incorrect 
application of law or USCIS policy. 
III. CONCLUSION 
The Petitioner has not established its ability to pay the proffered wage in the years 2010-2012, and 
therefore has not established its continuing ability to pay the proffered wage from the priority date of 
December 8, 2006, onward. Accordingly, the motions to reopen and reconsider will be dismissed. 
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. The Petitioner has not met that burden. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
Cite as Matter ofT-U-S-, ID# 2963683 (AAO Mar. 17, 2020) 
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