dismissed EB-3 Case: Retail Shipping Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 13071290 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 15, 2021 
The Petitioner, a sole proprietor and operator of 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. § 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 14 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 
The Petitioner's sole proprietor,! I owns three UPS stores in the _________ _ 
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~ I operates 
his three stores under a single federal employer identification number. 
The record shows that the Beneficiary has been employed by the Petitioner since 2008. In our prior 
decisions we determined that the Petitioner established its ability to pay the proffered wage in the years 
2006-2009 and 2013-2017, but not in the years 2010-2012. With its current motion the Petitioner 
submits evidence of its ability to pay the proffered wage in 2018 and 2019. However, for the reasons 
discussed hereinafter we conclude that the Petitioner has still not 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. 
In our prior decisions we indicated that the Petitioner's sole proprietor 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). In its current motion the Petitioner contends that Ubeda v. Palmer 
is not controlling case law because it arose and was decided in another federal circuit. That may be 
true, but does not preclude the AAO from citing the decision as instructive for the purposes of our 
adjudication of the instant petition. The Petitioner has not identified any reason why we should not 
follow the construct of Ubeda v. Palmer in our determination of the Petitioner's ability to pay the 
proffered wage. The Petitioner objects in particular to our inclusion of household expenses in our 
calculations, preferring instead "a finding based on the reasonableness of the financial situation of the 
petitioner." A sole proprietor's household expenses, however, are an integral part of any determination 
of his or her overall financial situation. 
In its current motion 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 USCIS 
standard operating procedures for Form I-140 petitions (USCIS I-140 National SOP), rather than 
relying on the higher estimated personal expenses recorded onl I federal income tax returns. 
We have thoroughly considered and discussed this issue in previous decisions, however, and stated 
that we will not substitute FPG figures for the estimates of personal expenses byl bn his federal 
income tax returns in determining the Petitioner's ability to pay the proffered wage. (See our decisions 
dated April 19, 2018, and September 19, 2018.) We will not revisit the issue in this decision. 
In our previous decisions we determined, with regard to the years 2010-2012, that the sum ofD 
I I 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. In the current motion the 
Petitioner addresses each of these years in tum and asserts that it could have utilized various financial 
resources to eliminate those yearly shortfalls. 
• 2010 - Shortfall: $33,755 
The Petitioner references an earlier decision from 2017 in which we discussed its claim that a credit 
line of $17,723 could have been utilized to cut the shortfall approximately in half. The Petitioner 
1 For each of the years 2010, 201 Land 2012 we subtracted from! I 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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interprets our language in that decision as allowing for the consideration of a petitioner's line of credit, 
as part of an overall assessment of the petitioner's financial situation, in determining whether it has 
the ability to pay a proffered wage. We do not share the Petitioner's interpretation of our previous 
decision. As we stated in that decision, 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. It is not a 
contractual or legal obligation on the part of the bank. See John Downes and Jordan Elliot Goodman, 
Barron's Dictionmy 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). Therefore, we do not regard the claimed 
credit line of $17,723 as representing available funds for wage payments to the Beneficiary in 2010. 
The Petitioner asserts that we erred by not adding back to our calculation of the Petitioner's income in 
2010 the net operating loss (NOL) carryover of -$19,782 recorded on its 2010 federal income tax 
return (Form 1040, page 1, line 21). If we did so, however, we would have to subtract that same 
amount in our calculation of the Petitioner's income in 2009, and we would also have to subtract the 
NOL figure of -$25,273 on the Petitioner's 2009 federal income tax return in our calculation of the 
Petitioner's income in 2008. Such recalculations would undo our previous determinations that the 
Petitioner had the ability to pay the proffered wage in 2009 (see our decision dated March 17, 2020) 
and in 2008 (see our decision dated June 8, 2015). If we accepted the Petitioner's NOL argument for 
2010, therefore, it would undermine its broader claim to have had the continuing ability to pay the 
proffered wage from the priority date onward. 
The Petitioner asserts that it overpaid the monthly minimum amount owed on a credit card by 
approximately $200, for a yearly total of $2,583.98 which was listed as a household expense. Since 
the overpayments were discretionary, the Petitioner states that they could instead have been used for 
wage payments to the Beneficiary. The summary sheet submitted by the Petitioner, however, is not 
an original document or even the copy of an original document. Furthermore, it does not identify the 
credit card holder or the credit card number. Therefore, even if we were to accept the claim that 
discretionary credit card payments could have been used instead to augment the Beneficiary's wages, 
the documentary evidence is deficient. 
The Petitioner claims that its $450 in monthly auto expenses, adding up to $5,400 for the year, were 
double listed as a household expense and a business expense for the UPS stores. According to the 
Petitioner, therefore, $5,400 of additional funds were actually available for wage payments to the 
Beneficiary in 2010. The Petitioner provides no documentary evidence of this claim, however, and 
does not refer to any previous documentation thereof or any previous decision of ours in which this 
item was discussed. Accordingly, there is no support for this claim in the current motion. 
The Petitioner also asserts that $3,750 it paid in 2010 to reserve the UPS franchise for .... l ___ _. 
(purchased in 2012) could instead have been used for wage payments to the Beneficiary. We do not 
agree. The reserve payments in 2010 were an essential step in the Petitioner's purchase of the final 
UPS store in 2012. Accordingly, the Petitioner has not demonstrated that the reserve payments were 
discretionary in nature or available in any way for the alternative purpose of wage payments to the 
Beneficiary in 2010. 
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Finally, the Petitioner asserts once again that equity inl !house could have been utilized for 
wage payments to the Beneficiary in 2010. As discussed in our last decision, however, a personal 
residence is not a readily liquefiable asset for proffered wage purposes, and the Petitioner has not 
submitted any new evidence or legal reasoning on this subject in the current motion. 
• 2011 - Shortfall: $23,377.53 
The Petitioner asserts that we should subtract from the shortfall $13,446.47 paid in 2011 to a part-time 
employeeJ I who could have been replaced by the full-time employment of the Beneficiary. 
However, we already made this subtraction in our decision dated April 19, 2018, in which we reduced 
the originally calculated shortfall of $36,824 to $23,377.53. (See also our subsequent decision dated 
September 19, 2018.) 
The Petitioner states that it has "uncovered" al I account in 2011 with a year-end balance 
of $27,722.77. As evidence thereof the Petitioner submits a copy of a one-page document with the 
header 'I I / Online Banking / Accounts Overview" and a footer showing a website 
address and the date of 12/22/2011, which listsl I business and personal accounts as well as 
an investment account withl I in the amount indicated above. This document has 
apparently never been submitted before, and the Petitioner provides no explanation for the omission 
of evidence so critical to the issue of whether the Petitioner had the ability to pay the proffered wage 
in 2011. After deducting 30 percent for taxes and an early withdrawal penalty, the Petitioner claims 
that a balance of $19,406 would have been available for wage payments to the Beneficiary. The 
regulation at 8 C.F.R. § 103.5(a)(2) states that a motion to reopen must state "new facts" and be 
supported by documentary evidence. The I I investment account held byl I in 
2011 is not a "new fact" at this stage of the proceedings. Moreover, the evidence submitted by the 
Petitioner is not an original document. Rather, it appears to be a photocopy with a header and footer 
that do not correspond, spacing-wise, to the contents that fill only the upper left portion of the one­
page document. These formatting attributes, in addition to the nearly decade-old date, raise questions 
about the document's authenticity. For the reasons discussed above we determine that the Petitioner 
has not submitted sufficient evidence of the alleged! I investment account in 2011. 
The Petitioner also asserts that the 2011 shortfall should be reduced by $2,820.17 for discretionary 
credit card overpayments, $763 for an NOL deduction on his federal income tax return that should be 
added to the AGI amount, and an additional sum for the equity inl I house. For the reasons 
discussed in our foregoing review of the year 2010, we do not regard any of these items as representing 
available funds to make wage payments to the Beneficiary in 2011. 
• 2012- Shortfall: $50,943.72 
The Petitioner asserts that we should subtract from the shortfall $14,518 paid in 2012 to part-time 
employee! ~ who could have been replaced by the full-time employment of the Beneficiary. 
Unlike for 2011, however, there is no Form W-2, Wage and Tax Statement, in the record that 
documents the alleged emlloyment and wages paid to I I in 2012. Absent documentary 
evidence oflemployment and compensation in 2012, the Petitioner's claim that we 
should reduce the shortfall by $14,518 has no merit. 
4 
The Petitioner reiterates its claim that an unconditional loan froml IBankl I of 
$546,000 could have been used to make wage payments to the Beneficiary in 2012. Copies of the 
loan documents are submitted, which do not confirm the Petitioner's claim as to the availability of 
funds for wage payments. A letter to the Petitioner from I I dated May 10, 2012, states that 
the purpose of the loris "[t]olprovide long term financing for the start-up of a third The UPS Store 
franchise location [in California] and for debt consolidation. The letter then states that the 
"$546,000 Loan [is] to be used as described in the following preliminary outline of the sources and 
uses of Project Funds:" The letter then lists 14 items with their respective expenditures, none of which 
included money for wage payments to the Beneficiary. A subsequent letter from the law firm I I I I to the Beneficiary, dated August 10, 2012, confirms that "[t]he proceeds of the Loan 
will be used for refinance of debt, working capital, to purchase equi]'.!ment and invento], closing fees 
and to make leasehold improvements to the premises [ of UPS storel (including a 
construction contingency and interest reserve)." Thus, the loan documents submitted on motion 
indicate that all of the funding made available by thel I loan of $546,000 was to be used for the 
start-up of the Petitioner's third UPS store. None was made available for wage payments to the 
Beneficiary. 
The Petitioner also asserts that the 2012 shortfall should be reduced by $8,673.74 for discretionary 
credit card payments. As stated previously in this decision with respect to the years 2010 and 2011, 
we do not regard discretionary credit card payments as representing available funds to make wage 
payments to the Beneficiary in 2012. 
• Sonegawa Analysis 
Finally, the Petitioner asserts once again that the totality of its circumstances during the decade and a 
half of its business operations establishes its continuing ability to pay the proffered wage from the 
priority date onward. consistent with Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
We already applied the Sonegawa analysis in our previous decision and determined that the totality of 
its circumstances did not establish the Petitioner's ability to pay the proffered wage during the years 
2010-2012. The current motion does not warrant another Sonegawa analysis. 
III. CONCLUSION 
The Petitioner has not submitted any new facts and supporting documentation to establish its ability 
to pay the proffered wage in the years 2010, 2011, or 2012. Nor has the Petitioner shown that our 
previous decision that the Petitioner did not establish its ability to pay the proffered wage in 2010, 
2011, or 2012 was based on any incorrect applications of law or policy. Thus, the Petitioner has not 
established its continuing ability to pay the proffered wage from the priority date of December 8, 2006, 
onward. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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