dismissed EB-3 Case: Retail Shipping

U.S. Citizenship 
and Immigration 
Services 
In Re : 18712508 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 25, 2022 
The Petitioner, a sole proprietor and operator ofretail 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 (EB-3) . Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(i), 8 U.S.C. § 1153(B)(3)(A)(i). The EB-3 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 his ability to pay the proffered wage of $35,692.80 per year from the priority date of 
December 8, 2006, onward. We also dismissed the appeal concluding that the Petitioner did not 
establish its continuing ability to pay the proffered wage from the priority date onward. We dismissed 
15 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. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence . Section 291 of the 
Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). 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). Resubmitting previously provided evidence or reasserting previously stated facts do 
not meet the requirements of a motion to reopen . The new facts must also be relevant to the grounds 
of the unfavorable decision. A motion that does not meet the applicable requirements shall be 
dismissed. 8 C.F.R. § 103.5(a)(4). A motion to reconsider must state the reasons for reconsideration; 
be supported by any pertinent precedent decision to establish that the decision was based on an 
incorrect application of law or policy; and establish that the decision was incorrect based on the 
evidence in the record 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. 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § I 03.5(a)(l )(i). In 
other words, we examine any new arguments to the extent that they pertain to our most recent 
dismissal of the Petitioner's motion to reopen and reconsider. Therefore, we cannot consider new 
objections to motions that we dismissed prior to our most recent decision, and the Petitioner cannot 
use the present filing to make new allegations of error at prior stages of the proceeding. 
Motions for the reopening or reconsideration 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. See INS v. Doherty, 502 U.S. 314, 323 (1992) ( citing INS v. Abudu, 485 U.S. 94 (1988)). 
A party seeking to reopen a proceeding bears a "heavy burden." See INS v. Abudu, 485 U.S. at 110. 
II. ANALYSIS 
The Petitioner's sole proprietor, Mr. P-, owns three UPS stores in thel I metropolitan area. 
The record indicates that he purchased his initial store in 2005, acquired two more in 2007, sold the 
initial store in 2008, and purchased one more store in 2012. As a sole proprietor, Mr. P- operates his 
three stores under a single federal employer identification number. In our most recent decision, we 
stated that the Petitioner had not established its ability to pay the proffered wage of $35,692.80, noting 
that the record shows that the Petitioner came up short in 2010, in 2011, and in 2012. Therefore, the 
Petitioner has not established its continuing ability to pay the proffered wage from the priority date of 
December 8, 2006, onward. We incorporate our prior decision dismissing the Petitioner's combined 
motions here by reference. 1 
A. Motion to Reopen 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). In the current motion the Petitioner references or provides evidence relating to his 
financial condition in 2010-2012 which have already been considered in decisions prior to our most 
recent decision. Because the motion does not meet applicable requirements, we must dismiss it. 
8 C.F.R. § 103.5(a)(4). 
For instance, in support of the most recent motion, the Petitioner asserted that it had "uncovered a 
I I account in 2011 with a balance of $27,722. 77," alleging that we had not previously 
discussed the applicability of these funds to meet its shortfall to pay the proffered wage in 2011. In 
the instant motion, the Petitioner contends that we inappropriately "rejected thel account 
as not a new fact." 
Notably, the Petitioner previously provided this evidence in support of the motion that we dismissed 
in November 2013. In that motion the Petitioner asserted that if the funds were used to 
satisfy the Petitioner's financial obligations in 2009, these same funds could also be used to address 
shortfalls in 2010 and 2011. We concluded in our November 2013 decision that the Petitioner's 
proposition that the same funds could be recurrently used to cover the shortfalls in 2010 and 2011 was 
unsustainable. We also determined that the I fund proceeds should be valued at $17,868 
after accounting for federal and state taxes, and the 10% tax penalty for early withdrawal of funds 
from this traditional individual retirement account. This resubmitted ( and previously discussed) 
evidence does not meet the requirements of a motion to reopen as set forth at 8 C.F.R. § 103.5(a)(2). 
1 Our most recent decision was ID# 13071290 (AAO APR. 15, 2021). 
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Similarly, in our previous decision we discussed the Petitioner's request that we consider the payment 
of wages to part-time workers in 2012 as evidence that these workers could have been replaced by the 
Beneficiary, and their wages paid to the Beneficiary in 2012. However, we noted in our most recent 
decision and in previous decisions, (e.g., our March 2020 and October 2017 motion decisions), that 
for the years 2011 and 2012 we subtracted from Mr. P-'s personal expenses the wages paid to the part­
time workers. The underlying documentation, such as the resubmitted Form W-2s for the part-time 
workers, was addressed and accounted for in our decisions prior to our most recent decision. Thus, 
the wages paid to the part-time workers are not "new facts" to support the Petitioner's motion to 
reopen. 8 C.F.R. § 103.5(a)(2). 
The Petitioner also points to its assertion that it double listed its auto insurance payments of $450 per 
month as both a household expense and a business expense as a new fact to be considered, indicating 
that a total of $5,400 was available in 2010 to offset the shortfall in the proffered wage. As discussed 
in our most recent decision, the Petitioner did not provide documentary evidence to support this claim. 
In the instant motion, the Petitioner references its 2010 Schedule C tax return and listing of household 
expenses in which he accounted for his auto insurance expenses. Here, the Petitioner has not provided 
documentary evidence of his car insurance premium costs in that year, to show that it in fact double 
listed this expense. Nonetheless, considering the $33,755 shortfall in the proffered wage in 2010, even 
ifwe credited the Petitioner with $5,400 in that year and concluded that the 2010 wage shortfall should 
actually be $28,375, this would not establish the Petitioner's ability to pay the proffered wage in 2010. 
Therefore, the Petitioner would still not establish eligibility for the benefit sought and we did not err in 
dismissing his previous motion. 8 C.F.R. § 103.5(a)(4). 
B. Motion to Reconsider 
The Petitioner has not demonstrated that our previous decision is based on an incorrect application of 
law or policy, nor has the Petitioner's motion shown that our prior decision is incorrect based on the 
evidence before us when we issued the decision. 8 C.F.R. § 103.5(a)(3). The Petitioner does not 
identify any incorrect application oflaw or policy in our prior decisions with regard to the Petitioner's 
ability to pay the proffered wage during the years 2010-2012. The Petitioner once again urges us to 
consider the totality of its circumstances, in accordance with Matter of Sonegawa, 12 I&N Dec. 612 
(Reg'l Comm'r 1967), but we have already done so in prior decisions. 
The Petitioner also reiterates his previous objections regarding our previous references to Ubeda v. 
Palmer, 539 F.Supp. 647, 650 (N.D. Ill. 1982), aff'd 703 F.2d 571 (7th Cir. 1983). The Petitioner 
takes issue with the inclusion of his estimated household expenses in our calculations, noting that he 
prefers instead that we use the federal government's poverty guidelines (FPG) in our analysis. On 
motion, the Petitioner acknowledges that "[a]dmittedly, the Petitioner's estimate of his actual expenses 
may be more accurate than (FPG)." As previously discussed, a sole proprietor's household expenses 
are an integral part of any determination of his or her overall financial situation. The Petitioner has 
not demonstrated that our decision to use his own estimated household expenses instead ofFPG in our 
ability to pay determination was based on any incorrect application of law or USCIS policy. 
Based on the foregoing, we conclude that the instant motion does not meet the requirements of a 
motion to reconsider and must therefore be dismissed. 8 C.F.R. § 103.5(a)(3); 8 C.F.R. § 103.5(a)(4). 
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III. CONCLUSION 
The Petitioner has not shown proper cause for the reopening or reconsideration of our previous 
decision with regard to the Petitioner's continuing ability to pay the proffered wage from the priority 
date of the petition, onward. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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