dismissed EB-3 Case: Retail Shipping

MATTER OF T-U-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19, 2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sole proprietor that operates 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 category. Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § l 153(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. A motion to reconsider was denied by the Director. 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 denied 12 
subsequent motions to reopen and/or reconsider on the same ground. 
The case is now before us on another motion to reopen and motion to reconsider. Upon review, we 
will deny 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). A motion to reconsider must be 
supported by a pertinent precedent or adopted decision, a statutory or regulatory provision, or a 
statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland 
Security policy. We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
Matter of T- U-S-
II. ANALYSIS 
In our prior decisions we found that the Petitioner established its ability to pay the proffered wage in 
the years 2006-2008 and 2013-2015, but not in the years 2009-2012 and 2016-2017. 
A. Motion to Reopen 
In support of the current motion to reopen the Petitioner submits copies of the Forms W-2, Wage and 
Tax Statements, it issued to the Beneficiary for 2016 and 2017, along with a copy of its sole 
proprietor's federal income tax return (Form 1040) for 2016. Based on the information gleaned from 
those documents, including the fact that the wages paid to the Beneficiary ($41,957.40 in 2016 and 
$40,730.01 in 2017) exceeded the proffered wage both years, we find that the Petitioner has 
established its ability to pay the proffered wage in 2016. However, because the submission does not 
include a form of regulatory required evidence for 201 7, we cannot find that the Petitioner had the 
ability to pay in that year. 1 Also, the Petitioner has not extended its motion to reopen to the other 
years at issue, 2009-2012. As such, the evidence submitted with the motion to reopen is not 
sufficient to demonstrate eligibility for the benefit sought. 
B. Motion to Reconsider 
On motion to reconsider, the Petitioner asserts that we did not properly consider previously 
submitted evidence relating to its ability to pay the proffered wage in the years 2009-2012. In our 
prior decisions we indicated that the Petitioner's sole proprietor could establish its ability to pay the 
proffered wage in a given year if its adjusted gross income (AGI) recorded on its federal income tax 
return for an individual (Form 1040) equaled or exceeded his or her personal expenses plus the 
proffered wage of the beneficiary. See, e.g., Ubeda v. Palmer, 539 F.Supp. 647, 650 (N.D. Ill. 
1982), ajf'd 703 F.2d 571 (7th Cir. 1983). In our last decision, after taking into account the wages 
paid to other part-time workers in 2011 and 2012 who could have been replaced by the Beneficiary 
if he had been employed full-time, we found that the sum of the Petitioner's personal expenses and 
proffered wage obligation to the Beneficiary exceeded the Petitioner's AGI by $4,988 in 2009, by 
$33,755 in 2010, by $23,377.53 in 2011, and by $50,943.72 in 2012. We rejected the Petitioner's 
claim that we should reduce the Petitioner's personal expenses in accord with the federal poverty 
guidelines (FPG) referenced in the USCIS standard operating procedures for Form 1-140 petitions 
(USCIS 1-140 National SOP), but found that even if we did so the record would not establish the 
Petitioner's ability to pay the proffered wage in 2010 or 2012. We concluded, therefore, that the 
Petitioner had not established its ability to pay the proffered wage in any of the years 2009-2012. 
The Petitioner now requests that we reconsider our previous findings regarding its ability to pay the 
proffered wage in the years 2009-2012. According to the Petitioner, we violated the USCIS 
1 See 8 C.F.R. § 204.5(g)(2), requiring evidence of ability to pay in the form of copies of annual reports, federal tax 
returns, or audited financial statements. 
2 
Matter of T-U-S-
Adjudicator's Field Manual which states that policy materials are binding on all USCIS officers and 
that the USCIS 1-140 National SOP is a policy document. While acknowledging that the USCIS 
1-140 National SOP does not require the use of the PPG in evaluating a petitioner's ability to pay the 
proffered wage, the Petitioner asserts that we should nevertheless use the guidelines in adjudicating 
this Form I-140 employment-based immigrant petition as a matter of consistency because they are 
used in the adjudication of Form 1-864 family-based immigrant petitions. We are not persuaded. As 
discussed in our previous decision, the USCIS 1-140 National SOP does not require USCIS officers 
to substitute poverty guideline amounts for the estimated personal expenses of sole proprietors 
(which are reported on their federal income tax returns). Rather, it states that the guidelines "may be 
used as a reference point" in evaluating the accuracy and reliability of a sole proprietor's estimated 
expenses. Thus, we are not bound by the PPG in adjudicating this petition. In accord with our 
previous decision, we find that the estimates of actual expenses by the sole proprietor in this case are 
more accurate and reliable than the poverty guidelines in determining the Petitioner's ability to pay 
the proffered wage. Therefore, we will not substitute PPG figures for the estimates of personal 
expenses by this Petitioner's sole proprietor, as recorded on his federal income tax returns, in 
determining the Petitioner's ability to pay the proffered wage in the years 2009-2012. 
With respect to the individual years at issue, the Petitioner claims as in prior motions that in 2009 the 
sole proprietor could have sold an automobile - a 1994 Mercedes-Benz S Class S320 - to raise his 
AGI above the sum of his personal expenses and the proffered wage, thus allowing him to pay the 
proffered wage that year. The record shows that the sole proprietor purchased the above-identified 
automobile for $30,060 in October 2002, that he was still the registered owner in 2005-06, and that 
in 2013 the Blue Book value of a 1994 Mercedes-Benz S320 in "very good condition" was $6,085. 
While that figure exceeded the sole proprietor's AGI shortfall of $4,988 in 2009, the record does not 
establish that the sole proprietor still owned his Mercedes-Benz in 2009 or that the specific car in 
question was in fact worth the quoted Blue Book value. The latest auto registration card in the 
record shows ownership by the sole proprietor for the one-year period from October 2005 to October 
2006. Absent evidence of continued ownership by the sole proprietor in 2009 and evidence of its 
condition and specific value, we cannot find that the sale of the automobile would have generated 
the funds needed to establish the Petitioner's ability to pay the proffered wage in 2009. 
As for 2010, the Petitioner asserts that we should apply the sole proprietor's credit line in the amount 
of$17,723 to reduce his AGI shortfall of $33,755. We have rejected this claim in numerous prior 
motions, however, and the Petitioner has not identified any incorrect application of law or policy in 
those decisions. A 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 John Downes and Jordan Elliot 
Goodman, Barron's Dictionary of Finance and Investment Terms 45 (5th ed. 1998). See also 
Rahman v. Chertoff, 641 F. Supp. 2d 349, 351-52 (D.Del. 2009) (holding that we reasonably 
disregarded a petitioner's line of credit in determining its ability to pay a proffered wage). The 
Petitioner also asserts that we should further reduce the sole proprietor's AGI shortfall by applying 
the FPG amount for personal expenses instead of the amount estimated in the sole proprietor's 
federal income tax return, a difference of $30,520, thereby establishing the Petitioner's ability to pay 
3 
Matter of T-U-S-
the proffered wage in 2010. For the reasons previously discussed, however, we will not substitute an 
FPG figure for the sole proprietor's own estimate of his personal expenses. 
For 2011, the Petitioner asserts that the FPG figure for personal expenses was $28,890 less than the 
sole proprietor's estimate of actual expenses, which would totally eliminate his AGI shortfall of 
$23,377.53. Once again, however, we will not substitute an FPG figure for the sole proprietor's own 
estimate of his personal expenses. 
Finally, for 2012 the Petitioner asserts that an unconditional loan guaranty of $545,000 from The 
Bancorp Bank, or a specific business loan associated therewith in the amount of some $20,000, 
could have provided funding for its proffered wage obligation and thereby reduced or eliminated the 
sole proprietor's AGI shortfall of $50,943.72. In previous decisions we found that the loan 
document does not sufficiently describe the purpose of the loan and that the evidence of record did 
not establish that the loan instrument would have made funding available for the purpose of paying 
the Beneficiary's proffered wage in 2012. In its current motion the Petitioner has not identified any 
incorrect application of law or policy in those decisions. Once again the Petitioner asserts that we 
should reduce the sole proprietor's AGI shortfall by applying the FPG amount for personal expenses 
instead of the amount estimated in the sole proprietor's federal income tax return. For the reasons 
previously discussed, however, we will not substitute an FPG figure for the sole proprietor's own 
estimate of his personal expenses. 
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 2009-2012 was based on an incorrect 
application of law or USCIS policy. 
III. CONCLUSION 
The Petitioner has established its ability to pay the proffered wage in 2016, but not in 2009-2012 or 
201 7. Therefore, the Petitioner has not established eligibility for the immigrant benefit sought. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofT-U-S-, ID# 1745595 (AAO Sept. 19, 2018) 
4