dismissed EB-3 Case: Retail Shipping

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-UPSS-#5-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 22, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a sole proprietor operating 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 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based 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 2 years of training or experience. 
The Director, Nebraska Service Center, denied the petition. The Director determined that the 
Petitioner had not established its continuing ability to pay the Beneficiary's proffered wage from the 
priority date of December 8, 2006, onward. We dismissed the subsequent appeal that came before. 
us, concluding that the Petitioner had not established its ability to pay the proffered wage. The 
Petitioner filed seven motions to reopen and reconsider. We affirmed our prior decisions regarding 
the Petitioner's ability to pay the proffered wage. In our latest decision we also noted that, with any 
further filings, the Petitioner must establish that a bona fide job offer exists because it appears that 
the Beneficiary may have had a familial relationship with the Petitioner. 
The matter is now before us on an eighth motion to reopen and reconsider. The Petitioner submitted 
additional evidence regarding its ability to pay the proffered wage. The Petitioner also provided 
evidence to demonstrate that the Beneficiary is not related to the Petitioner, including the 
Beneficiary's birth certificate, his parents' marriage certificate, and a letter from an acquaintance of 
the Beneficiary correcting a previous statement that the Beneficiary was related to the Petitioner's 
owner. 
We will deny the motion to reopen and reconsider. 
I. PROCEDURAL HISTORY 
The Director denied the petition on April 13, 2009, concluding that the Petitioner had not established 
its continuing ability to pay the Beneficiary's proffered wage from the priority date of 
December 8, 2006, onward. The Petitioner filed seven motions to reopen and reconsider with us. In 
our last decision on June 8, 2015, we held that the Petitioner had not established its ability to pay the 
proffered wage for 2009 through 2012. We also stated that in any further filings, the Petitioner must 
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Matter ofT-UPSS-#5-
establish the job offer is a bona fide job offer. We specifically noted that a recommendation letter 
for the Beneficiary referred to the Beneficiary as the Petitioner's owner's nephew. 
The matter is again before us on motion to reopen and reconsider. The motion to reopen qualifies 
for consideration under 8 C.F.R. § 103.5(a)(2) because the Petitioner is providing new facts with 
supporting documentation not previously submitted. The Petitioner submitted additional evidence 
on motion and states it has the ability to pay the proffered wage and that the position offered is a 
bona fide job offer. 
The motion to reconsider qualifies for consideration under 8 C.F.R. § l 03.5(a)(3) because the 
Petitioner asserts that we made an erroneous decision through misapplication of law or policy. 
II. LAW AND ANALYSIS 
The first step in sponsoring a foreign national for lawful permanent resident status in the skilled 
worker category is that the petitioner files an ETA Form 9089 (labor certification) with the U.S. 
Department of Labor (DOL). The date the labor certification is accepted for processing by the DOL 
establishes the priority date. See 8 C.F.R. § 204.5(d). The priority date provides the benchmark for 
when a visa will become available for the Beneficiary to adjust to lawful permanent status. Once the 
DOL approves the labor certification, certifying that employment of the foreign national will not 
negatively affect the U.S. labor market, the petitioner submits to U.S. Citizenship and Immigration 
Services (USCIS) a Form 1-140, Immigrant Petition for Alien Worker, and the approved labor 
certification. Then, once USCIS approves the Form l-140 and a visa becomes available based upon 
the priority date, the beneficiary is eligible to become a lawful permanent resident of the United 
States. 
As required by statute, the petition is accompanied by a labor certification approved by the DOL. 
The labor certification was accepted on December 8, 2006. The proffered wage as stated ·on the 
labor certification is $17.16 per hour, or $35,692.80 per year. 
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any pet1t10n filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
Thus, the petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date. See 8 C.F.R. § 204.5(d). The petitioner's ability to pay the proffered wage is an 
essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 
142 (Acting Reg'! Comm 'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is 
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Matter o.fT-UPSS-#5-
realistic, users requires the petitioner to demonstrate financial resources sufficient to pay the 
beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning 
business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 
I&N Dec. 612 (Reg' I eomm'r 1967). 
users considers three aspects in determining whether a sole proprietor has the ability to pay the 
beneficiary's proffered wage: (I) the wages paid to the Beneficiary and whether these wages 
exceeded the proffered wage; (2) the sole proprietor's adjusted gross income (AGI) minus 
expenses; 1 and (3) the totality of the circumstances under Matter ofSonegawa, 12 I&N Dec. 612 
(Reg'! eomm'r 1967). 
In the instant case, the issue is whether the Petitioner had the ability to pay the Beneficiary's 
proffered wage in 2009, 2010, 2011, and 2012. The following chart demonstrates the shortfall that 
must be covered after subtracting from the sole proprietor's AGI the sole proprietor's household 
expenses and deficiencies in the Beneficiary's wages paid in the relevant years: 
Year Shortfall the 
sole proprietor 
must cover 
2009 $4988.93 
2010 $33,755.11 
2011 $36,824.50 
2012 $51,793.15 
This demonstrates that from 2009 through 2012, the Petitioner has a total shortfall of $127,361.69 
after considering the sole proprietor's living expenses and the deficiencies in wages paid for these 
years. We will consider the Petitioner's assertions in each of these years individually and in the 
totality of circumstances as to whether it has the ability to pay the proffered wage. 
At the outset, the Petitioner states that certain assets before 2009 should be considered toward its 
ability to pay the proffered wage. The Petitioner states that it had several bank accounts in 2006 
which added together had an annual average balance of $4503.09. It is unclear how those amounts 
would have remained available to pay any part of the deficiencies from 2009 through 2012. 
Therefore, we will not view the amounts in these bank accounts toward the deficiencies for the years 
at issue. 
1 Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual owner. See Matter of 
United Investment Group, 191&N Dec. 248,250 (Comm'r 1984). Therefore the sole proprietor's adjusted gross income, 
assets and personal liabilities are also considered as part of the petitioner's ability to pay. See O'Conner v. Atty. Gen., 
1987 WL 18243 (D. Mass. Sept. 29, 1987) (indicating that the personal assets and income of the sole proprietors are 
relevant to a determination of the ability of the sole proprietorship to pay the proffered wage). 
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(b)(6)
Matter of T-UPSS-#5-
A. 2009 
Counsel asserts in her brief that the shortfall of $4988.93 in 2009 could be met by the sole 
proprietor 's willingness to sell his car or by utilizing one of the Petitioner 's business lines of credit. 
First, the record contains a declaration from the sole proprietor indicatin g that in 20 13, the 
value of his car was $6085 . He states that it would have been worth much more in prior 
years. However, the record does not contain sufficient evidence of the condition of this car for the 
relevant years at issue to substantiate its value and whether it would have covered the shortfall from 
2009 through 2012. At most, it appears that this would have only overcome the shortfali in 2009, 
not from 20 10 onward. Without additional evidence of the condition and value of t he sole 
proprietor's car in 2009 , we cannot consider the potent ial sale of this car towards the ability to pay 
the proffered wage. 
Second, the Petitioner states that it can utilize business or personal lines of credit to cover the 
shorttall in 2009. Comparab le to the limit on a credit card, the Petitioner's business line of credit 
cannot be treated as cash or as a cash asset. However, if a petitioner wishes to rely on a line of credit 
as evidence of ability to pay, it must submit documentary evidence , such as a detailed business plan 
and audited cash flow statements , to demonstr ate that the line of credit will augment and not weaken 
its overall financial position. Finally , USCIS will give less weight to loans and debt as a means of 
paying salary since the debts will increase a petitioner's liabilities and will not improve its overall 
financial position. Although lines of credit and debt are an integral part of any business operation, 
USCJS must evaluate the overalJ financial position of a petitioner to determine whether the employer 
is making a realistic job offer and has the overall financial ability to satisfy the proffered wage . See 
Matter ofGr eat Wall, 16 I&N Dec. 142. 
The record contains a copy of the Petitioner ' s Statement, 
indicating that as of December 12, 2009 , the Petitioner had available credit of S9669. The Petitioner 
states that one of his Jines of credit averages $7718 . As stated above, we will not treat business I ines 
of credit as cash or a cash asset. The Petitioner has not provided sufficient evidence to demonstrate 
that its line of credit improve s and not weakens .its financial position. Therefore, the Petitioner has 
not established its ability to pay the proffered wage in 2009. 
B. 2010 
We s
tated previously that the annual shortfall for 2.010 was $33,755.11. The sole proprietor s tates 
that, because he ov.ns multiple stores, this shortfall could have been covered by the average balances 
m Jts store's credit line of$17,723.58 and the average of the sole proprietor's personal 
credit line of $16,912.41 . · 
We do not agree with the Petitioner's statement that the remaining shortfall of $33,755. 11 could 
have been cover ed by the these credit lines. First, we note that the Petitioner has not established that 
the Beneficiary will we be employed at the store in California. The Petitioner has not 
provided docum entation that establishes whether the credit lines for the store in could 
be used for obligations at another one of the sole proprietor's stores. It appears that a credit line for 
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(b)(6)
Matter ofT-UPSS-#5-
the store in would be tied to transactions arising within that store. In addition, as stated 
above, we will not treat the Petitioner 's business line of credit as cash or a cash asset. The Petitioner 
has not submitted documentary evidence, such as a detailed business plan and audited cash flow 
statements, to demonstrate that the line of credit will augment and not weaken its overall financial 
position. The evidence submitted on motion contains the sole proprietor' s 
personal account which had an average credit line of $16,9 12.41 in 2010. The record does not 
establish how the sole proprietor's bank would allow him to use this personal line of credit to pay the 
Beneficiary 's proffered wage. The record does not establish what this account is generally used for 
and how the needs ordinarily met by this account could be met in other ways. Even if the evidence 
in the record resolved the issues noted above, the amount of this credit line is $16,912.41, which is 
insufficient to pay the shortfall of$33 ,755.11 for 2010. Therefore, the Petitioner has not established 
that it could cover the shortfall for 2010. 
C. 2011 
The Petitioner states on motion that he incurred a total of $41,875.49 for remodeling and buildout 
costs and an fee in 2011. USCIS may consider the overall 
magnitude of the petitioner's business activities in its determination of the petitioner's ability to pay 
the proffered wage. See Matter ofSonegawa, 12 l&N Dec. 612 (Reg'l Comm'r 1967). On motion, 
the sole proprietor submitted an invoice for remodeling to his store in for $5000, a 
buildout ledger stating costs of $18,069 .63, and an order workbook stating costs of $18,0805.86 for 
store in which together equal the $41,875.49 costs. The record contains the sole 
proprietor's Form 1040, Schedule C, for 2011 which state repair and maintenance costs of $6447 at 
the store and $1402 at the store in It is unclear why the repair and 
maintenance costs documented by the Petitioner for 2011 were not included on the Form 1040 for 
that year. 
Under Sonegawa, in addition to providing evidence of unexpected costs incurred, the Petitioner 
would also need to provide evidence of its ability to pay the proffered wage in the surrounding years 
and additional evidence such as the established historical growth of the petitioner's business, the 
overall number of employees , the petitioner 's reputation within its industry, whether the beneficiary 
is replacing a former employee or an outsourced service, and evidence that the financial impact of 
the costs incurred indicating that the financial picture of that year was much different from the prior 
years. The following chart indicates the gross receipts and expenses stated on the sole proprietor's 
Forms 1040, Schedule C, for 2009 through 2012. 
-
Store CA) Store CAJ 
Year Gross receipts Expenses Gross receipts Expenses 
2009 $326,271 $210,146 $445,626 . $259,635 
2010 $340,141 $180,155 $261,031 $268,923 
2011 $341,237 $203,349 $434,976 $261,721 
2012 $339,946 $199,271 $460,141 $257,998 
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(b)(6)
Matter ofT-UPSS-#5-
Apart from the amount of gross receipts in 2010 at the store in these figures indicate 
that the Petitioner's gross receipts and expenses have remained fairly consistent. The record does 
not contain sufficient evidence establishing its established historical growth or other pertinent factors 
similar to Sonegawa. Therefore, the Petitioner has not established that it could cover the shortfall of 
$36,824.50 for 2011. 
D. 2012 
On motion, the Petitioner states that the SBA unconditional loan guaranty received from the 
in the amount of $545,000 may be used to cover the $51,793.15 shortfall in 2012. 
The Petitioner states that "the loan was approved for payment of operating costs the business may 
incur, such as lease, payroll, etc., as well as leasehold improvements, equipment and inventory." 
The sole proprietor has multiple stores in different locations and states that we should consider a 
loan to its and locations in the amount of $20,069.88 and a loan for working 
capital to the Petitioner for $37,823.04. We note that $316,321.40 of this loan is stated on the 
statements as "Debt Refinance" and the record does not provide evidence of the purpose of the loans 
to the and stores in the amount of $20,069.88 at each location. Therefore, 
the Petitioner has not established that 
it had the ability to pay the shortfall of $51,793.15 for 2012. 
E. Totality ofthe Circumstances 
As indicated above under Matter of Sonegawa, USCIS may, at its discretion, consider evidence 
relevant to the petitioner's financial ability in the totality of the circumstances. In the instant case, 
the sole proprietor has had shortfalls in covering his personal expenses and the Beneficiary's 
proffered wage in the amounts of $68,483.76, $53,356.13, $36,824.50, and $51,793.15 for 2009, 
2010, 2011, and 2012, respectively. The Petitioner states that we should consider the amounts stated 
in the business checking accounts. However these amounts would be listed on the Schedule C of the 
IRS Form 1040. The net profit or loss is carried forward to page one of the Petitioner's IRS Form 
1040 and this is included in the calculation of his adjusted gross income. We will not count these 
amounts twice in our calculation of the Petitioner's ability to pay the proffered wage. The Petitioner 
indicates that he incurred losses in 2007 after purchasing two stores in the amount of $645,000. 
However, the years 2009 through 2012 are the years at issue on motion, not 2007. The Petitioner 
states that it was approved for an unconditional SBA guaranty loan for $545,000. However, as noted 
above, $316,321.40 of this loan is stated as "Debt Refinance" and the record does not contain 
specific evidence regarding how the 
loans are to be used at the and stores in 
the amount of $20,069.88 for each store. 
On motion, the Petitioner cites the court's decision in Construction and Design Co. v. USCIS, 563 
F.3d 593 (7th Cir. 2009), for the proposition that net income may not accurately reflect a 
corporation's ability to pay the proffered wage. We do not find the court's decision in Construction 
and Design to be particularly supportive or persuasive of the Petitioner's position in this case. The 
facts of Construction and Design are distinguishable from the instant facts in that Construction and 
Design dealt with an S corporation whereas the instant Petitioner is a sole proprietor. This is a major 
difference here because a sole proprietor is able to utilize many other avenues for demonstrating the 
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(b)(6)
Matter ofT-UPSS-# 5-
ability to pay the proffered wage such as providing evidence of assets compared with personal 
liabilities. Further, Construction and Design dealt with the issue of the conversion of an 
independent contractor to a permanent employee. !d. at 596. This matter did not arise with the same 
circuit as Construction and Design . We are bound by the Act, agency regulations , precedent 
decisions of the agency and published decisions from the circuit court of appeal s from whatever 
circuit that the action arose. See N.L.R.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 
(9th Cir. 1987). Additionally, the comt's holding in Construction and Design affirmed the district 
court's decision in denying the work visa sought by the petitioner. !d. at 598. 
Thus , assessing the totality of the circumstances in this individual case, it is concluded that the 
petitioner has not established that it had the continuing ability to pay the proffered wage. 
F. 2013 to 2015 
The Petitioner did not submit any evidence regarding its ability to pay the proffered wage for 2013 , 
2014 , and 2015. Therefore , the Petitioner has not demonstrated its continuing ability to pay the 
proffered wage. 
G. Whether the Job Offered is a Bona Fide Job Offer 
We 
indicated in our prior decision that in any further filings the Petitioner must demonstrate that the 
Beneficiary is not related to the Petitioner's sole proprietor. The record contains an original letter 
from the Beneficiary's acquaintance referring to the Beneficiary as the sole proprietor's nephew. 
We noted this fact in our prior decision and indicated that this may be an indication that the instant 
position offered is not a bonafid e job offer. On motion , the Petition er submitted a letter, dated June 
30, 2015 , from the same acquaintance indicating that he was mistaken about any relationship 
between the Beneficiary and the sole proprietor and stating that he now understands they are not 
relatives , just acquaintances. The Petitioner also submitted the Beneficiary 's birth certificate and the 
marriage certificate of his parents. We note that a search of government databases indicates that the 
Beneficiary entered the United States on a B-1 visa in 2001 and stated his address as 
in California, which was the same address as the sole proprietor. This tends to indicate 
that the Beneficiary knew the sole proprietor before the job offer was made and the evidence in the 
record has not demonstrated the extent of the relationship. Thus, although the sole proprie tor denies 
that a familial relationship exists, it appears that the Beneficiary had close ties to the Petitioner's 
owner prior to the filing of the instant petition. 
Under 20 C.F.R. §§ 626.20(c)(8) and 656.3 , the petitioner has the burden when asked to show that a 
valid employment relationship exists , that a bona .fide job opportunity is available to U.S. workers. 
See Matt er ofAmger Corp., 87-INA-545 (BALCA 1987). USCIS must consider the merits of a 
petitioner 's job offer to determine whether the job offer is realistic. See Matter o f Great Wall, 16 
I&N Dec. 142. A relationship invalidatin g a bona fide job offer may arise where the beneficiary is 
related to the petitioner by "blood" or it may "be financial , by marriage, or throu gh friendship ." See 
Malter of Sunmart 374, 00-INA-93 (BALCA May 15, 2000). In our previous decision , we cited 
Modular Container Systems, Inc., 1989-INA-228 (BALCA Jul. 16, 1991) (en bane), regarding 
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Matter ofT-UPSS-#5-
evidence that the Petitioner could submit to demonstrate that the position offered was clearly open to 
U.S. workers. These factors include whether the Beneficiary is in a position to control or influence 
hiring decisions; whether he was an incorporator or founder of the company; whether he is involved 
in the management of the company; or whether he has qualifications for the job that are identical to 
specialized or unusual job duties and requirements stated in the application. Id The Petitioner has 
not provided any evidence regarding these factors to establish that the job offered was clearly open 
to U.S. workers. The Petitioner has not met its burden of establishing that the instant position is a 
bonafide job offer. 
III. CONCLUSION 
For the foregoing reasons, we conclude that the Petitioner has not established its ability to pay the 
Beneficiary's proffered wage from 2009 onward or that the job offered constituted a bonafide job 
offer. 
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; Matter o[Otiende, 26 1&N Dec. 127, 128 
(BIA 2013). The Petitioner has not met that burden. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofT-UPSS-#5-, 10# 15104 (AAO July 22, 2016) 
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