dismissed EB-3 Case: Retail Shipping

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT-U-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR.19,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM l-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sole proprietorship that operates retail shipping stores, seeks to employ the 
Beneficiary as an administrative assistant. It requests his classification under the third-preference 
immigrant category as a skilled worker, 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" category allows a 
U.S. business to sponsor a foreign national with at least two years of training or experience for 
lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition and the Petitioner's following 
motion to reconsider. After affirming the Director's decision on appeal, we denied the Petitioner's 
subsequent II motions. All of these decisions concluded that the Petitioner did not demonstrate its 
required ability to pay the proffered wage. We denied the Petitioner's most recent motions to reopen 
and reconsider, finding that it did not demonstrate its ability to pay from 2009 through 2013. ~'iee 
/Vfaller ofT-U-S-, ID# 839342 (AAO Oct. 27, 2017). 
The matter is now before us on the Petitioner's motion to reconsider. The Petitioner states that we 
mischaracterizcd evidence accompanying its motion to reopen. The Petitioner also asserts that, by 
using the sole proprietor's estimates of his annual expenses in determining its ability to pay, we 
violated a U.S. Citizenship and Immigration Services (USCIS) National Standard Operating 
Procedure (SOP). 
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Upon review, we will deny the motion. 
I. MOTION TO RECONSIDER 
A motion to reconsider must establish that, based on the record at that time, our decision misapplied 
law or policy. 8 C.F.R. § 1 03.5(a)(3). A motion to reconsider must be supported by a pertinent 
precedent or adopted decision, statutory or regulatory provision, or statement of users or 
Department of Homeland Security policy. 
Maller ofT-U-S-
II. ABILITY TO PAY THE PROFFERED WAGE 
A. The Evidence 
The Petitioner states that, in denying its motion to reopen, we mischaracterized and ignored evidence 
of its ability to pay the proffered wage. See 8 C.F.R. § 103.5(a)(2) (requiring a motion to reopen to 
state new facts, supported by documentary evidence). We described the motion's evidence as copies 
of the Beneficiary's IRS Forms W-2, Wage and Tax Statements, for 2011 through 2013. Because 
prior decisions of ours had considered these documents, we concluded that the motion did not state 
new facts. 
As the Petitioner contends, however, the Forms W-2, which it submitted with the motion for the first 
time, reflected its payments to other workers, not to the Beneficiary. The Petitioner states that it 
employed the workers part-time in the offered position of administrative assistant. Had it employed 
the Beneficiary full-time in the position, the Petitioner argues that it would not have needed to pay 
the part-time workers. It therefore contends that the payment amounts would have been available 
hom 2011 through 2013 to pay part of the annual proffered wage of$35,692.80. 
In a prior decision, we considered the adjusted gross income (AGI) of the Petitioner's sole proprietor 
in relation to his personal expenses and the proffered wage. See, e.g.. Uheda v. Palmer, 539 F. 
Supp. 647,650 (N.D. Ill. 1982), af]'d, 703 F.2d 571 (7th Cir. 1983) (considering a sole proprietor's 
personal assets and expenses in determining his business's ability to pay a proffered wage because 
the business is legally inseparable from him). The following table shows that, from 2009 through 
2013, the sole proprietor's AGI did not equal or exceed the sum of his expenses and the proffered 
wage. 
·Year 2009 2010 2011 2012 2013 
Shortfall $4,988 $33,755 $36,824 $51,793 $4,067 
The Fon11S W-2 indicate that the Petitioner paid one worker $13,446.47 in 2011 and $14,829.72 in 
2013. Another worker received $849.28 in 2012. The wages paid in 2013 exceed that year's 
shortfall. Thus, crediting that payment to the Petitioner establishes its ability to pay in 2013. 
The part-time wages in 2011 and 2012, however, do not equal or exceed the corresponding 
shortfalls. Therefore, the Forms W-2 do not establish the Petitioner's ability to pay the proffered 
wage in those years. The forms also do not demonstrate the Petitioner's ability to pay in 2009 or 
2010. Thus, the evidence does not establish the Petitioner's ability to pay the protTered wage. 
B. The SOP 
The Petitioner also asserts that, in determining its ability to pay, we violated a USCIS National SOP. 
The SOP for Form 1-140, Immigration Petition for Alien Worker, states: 
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Maller ofT-U-S-
The sole proprietor must be able to demonstrate that he or she can meet their existing 
business expenses and pay the proffered wage. In addition they must show that they 
can sustain themselves and their dependents .... The Federal Poverty Guidelines for 
the year that the priority date is established may be used as a reference point for 
evaluating the ability to pay. 
USCIS 1-140 National SOP, 5-152, http://www.olender.pro/sites/default/files/Standard%20 
Operati ng%20 Proced ures%20%28SO P%2 9%20 l-140%2,0-%20USCIS %20-%202007. pdf (last 
visited Apr. 2, 20 18). 
Here, to consider the ability of the Petitioner's sole proprietor to support himself and his family, 
USCIS required estimates of his personal expenses. The estimates ranged from $48,000 in 2009 to 
$53,160 in 2013. 
The Petitioner, however, contends that the SOP required us to use the annual amounts listed on the 
poverty guidelines, rather than the sole proprietor's estimates. For families of the same size in the 
continental United States, the annual poverty guideline amounts fall well below the Petitioner's 
estimated expenses, ranging from $18,310 in 2009 to $23,550 in 2013.
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See, e.g .. U.S. Dep't of 
Health & Human Servs., 2012 I-II-IS Poverty Guidelines, https://aspe.hhs.gov/20 12-hhs-poverty­
guidclines (last visited Apr. 2, 2018). 
Contrary to the Petitioner's argument, however, the SOP does not bind us in this matter. The SOP is 
a written collection of procedures for the internal use of USCJS employees. It therefore lacks the 
force or etlect of law. See. e.g. Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th Cir. 2000) 
(stating that an agency's internal guidelines neither confer substantive rights nor provide procedures 
upon which applicants or petitioners may rely). 
Also, the SOP does not require USCIS officers to substitute the poverty guideline amounts for the 
estimated expenses of sole proprietors. Rather, the SOP states that the guidelines "may be used as a 
reference point." Thus, the guidelines may help USCIS ofiicers evaluate the accuracy and reliability 
of estimated expenses of sole proprietors. For example, USCIS may question or reject expenses that 
fall significantly below corresponding guideline amounts. 
In addition, in determining ability to pay proiTered wages, we believe that estimates by sole 
proprietors of their actual expenses arc more accurate and realistic than poverty guideline amounts. 
See Matter of Great Wall, 16 I&N Dec. 142, 144 (Acting Reg'! Comm'r 1977) (requiring a 
petitioner to establish "a realistic job offer"). Like the Petitioner, many sole proprietors may incur 
expenses significantly above corresponding poverty guideline amounts. Also, for a family of a 
certain size in the continental United States, the guidelines state a single amount. But expenses of 
sole proprietors may widely· vary depending on where they live in the country. Thus, we lind that 
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The federal tax returns of the Petitioner's sole proprietor indicate his support of three people in 2009 and four people 
thereafter. 
Maner ofT- U-S-
estimates of actual expenses are more accurate and reliable than poverty guidelines in determining 
the abilities of sole proprietors to pay. 
Finally, even if we substituted the poverty guideline amounts for the sole proprietor's estimated 
expenses, the record would not establish the Petitioner's ability to pay the proffered wage in 2010 or 
2012. The differences between the poverty guideline amounts of $22,050 in 20 I 0 and $23,050 in 
2012 and the Petitioner's corresponding estimated expenses of $50,520 and $53,160 would not cover 
the shortfalls in those years. For the foregoing reasons, substitution of the poverty guideline 
amounts for the estimated expenses of the sole proprietor would not establish the Petitioner's ability 
to pay. 
The Petitioner previously established its ability to pay in 2014 and 2015. The record, however, lacks 
required evidence of the Petitioner's ability to pay in 2016 or 2017. See 8 C.F.R. § 204.5(g)(2) 
(requiring a petitioner, in demonstrating its continuing ability to pay a proffered wage, to submit 
copies of annual reports, i'ederal income tax returns, or audited financial statements). Thus, in 
addition to establishing its ability to pay hom 2009 through 2012, the Petitioner must submit copies 
of annual reports, federal income tax rettirns, or audited financial statements for 2016 and 2017 in 
any future filings in this matter. For the same two years, the· Petitioner must also submit estimated 
expenses of its sole proprietor. 
Because the record lacks required evidence of the Petitioner's finances for the past two years, we 
cannot completely or accurately consider its ability to pay under Maner of'Sonegawa. See 12 I&N 
Dec. 612, 614-15 (Reg'! Comm'r 1967) (allowing immigration oflicers to consider factors affecting 
a petitioner's ability to pay beyond its net income and net current assets). 
III. CONCLUSION 
The Petitioner's motion does not establish its continuing ability to pay the proffered wage from the 
petition's priority date onward. 
ORDER: The motion to reconsider is denied. 
Cite as Maner of'T-U-S-, ID# 1208664 (AAO Apr. 19, 2018) 
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