dismissed EB-3 Case: Retail

identieing data deleted to 
prevent clearly unwamnted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: Office: VERMONT SERVICE CENTER Date: MAY 2 6 2006 
EAC-03-158-50644 
PETITION: 
 Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~obek P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a retail convenience storelmini market. It seeks to employ the beneficiary permanently in the 
United States as a manager. As required by statute, a Form ETA 750, Application for Alien Employment 
Certification approved by the Department of Labor, accompanied the petition. The director determined that 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage 
beginning on the priority date of the visa petition and denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. 
The procedural history in this case is documented by the record and incorporated into this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's September 22, 2004 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(i), provides 
for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
Ability of prospective employer to pay wage. Any petition 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. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. 5 204.5(d). The priority date in the instant 
petition is July 29, 2002. The proffered wage as stated on the Form ETA 750 is $745.00 per week, which 
amounts to $38,740.00 annually. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all pertinent 
Page 3 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
appeal includes a copy of Matter of Ranchito Coletero, a copy of a CIS memorandum signed by William Yates 
on May 4,2004, and a copy of an unpublished AAO decision. Other relevant evidence in the record includes the 
petitioner's cash flow statements, a letter from the petitioner's certified public accountant dated June 15, 2004, 
copies of the Form 1040 U.S. Individual Income Tax Returns for the petitioner's owner for 2001,2002, and 2003, 
copies of the Form W-2 Wage and Tax Statements for the owner's wife for 2001,2002, and 2003, the petitioner's 
financial statements, the owner's mortgage payment information, the owner's retirement statement including 
Roth IRAs and money market fund information, the owner's car payoff information, the owner's available line of 
credit information, information regarding 7-Eleven franchising, the owner's bank accounts information, and a 
copy of a summary of Matter of Ranchito Coletero. The record does not contain any other evidence relevant to 
the petitioner's ability to pay the wage. 
Counsel states on appeal that the petitioner's overall financial circumstances should be considered, including the 
owner's personal assets, profitlloss statements, cash flow statements, net current assets, line of credit, and 
payments made to the beneficiary's predecessor. Counsel also states that Matter of Sonegawa applies with 
respect to the petitioner's 2002 reported loss because the petitioner expanded in 2002 and because the petitioner 
experienced a substantial increase in business. Counsel likewise states that this case warrants humanitarian 
consideration. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. 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. Cornm. 1977). See also 8 C.F.R. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, CIS 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. Cornm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on July 20,2002, the beneficiary did not claim to 
have worked for the petitioner. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
without consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for 
determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
-- -- 
1 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case provides no 
reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988). 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. 111. 1982), affd., 703 F.2d 571 (7h Cir. 1983). In K.C.P. Food Co., Inc., the court held that the Immigration 
and Naturalization Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the 
petitioner's corporate income tax returns, rather than the petitioner's gross income. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a sole proprietorship. The record contains copies of the Form 1040 
U.S. Individual Income Tax Returns of the petitioner's owner for 2001, 2002, and 2003. The record before the 
director closed on June 23,2004 with the receipt by the director of the petitioner's submissions in response to the 
request for evidence (RFE). As of that date the federal tax return of the petitioner's owner for 2004 was not yet 
due. Therefore the owner's tax return for 2003 is the most recent return a~ailable.~ 
Unlike a corporation, a sole proprietorship is not legally separate from its owner. 
 Therefore the sole 
proprietor's income and personal liabilities are also considered as part of the petitioner's ability to pay. Sole 
proprietors report income and expenses from their businesses on their individual (Form 1040) federal tax 
returns each year. The business-related income and expenses are reported on Schedule C and are carried 
forward to the first page of the tax return. A sole proprietor must show the ability to cover his or her existing 
business expenses as well as to pay the proffered wage. In addition, the sole proprietor must show sufficient 
resources for his or her own support and for that of any dependents. Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. 111. 1982), affd, 703 F.2d 571 (7th Cir. 1983). 
In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioning entity 
structured as a sole proprietorship could support the owner, his spouse and five dependents on a gross income 
of slightly more than $20,000.00 where the beneficiary's proposed salary was $6,000.00, a figure which was 
approximately thirty percent (30%) of the petitioner's gross income. 
In the instant petition, the tax returns of the petitioner's owner are joint returns of the owner and his spouse. 
Those returns show one dependent son. Therefore the household size of the petitioner's owner is 3 persons. 
For a sole proprietorship, CIS considers net income to be the figure shown on line 35, Adjusted Gross 
Income, of the owner's Form 1040 U.S. Individual Income Tax ~eturn.~ The owner's tax returns show the 
following amounts for adjusted gross income. 
Tax Adjusted Household Wage increase needed Surplus or 
year gross income expenses to pay the proffered wage deficit 
2002 -$2,043.00 No Information $38,740.00" -$40,783.00 
2003 $21,309.00 No Information $38,740.00" -$17,431.00 
Even though the owner's Form 1040 U.S. Individual Income Tax Return for 2001 appears in the record, it is irrelevant 
because the petitioner has to establish its ability to pay the beneficiary the proffered wage beginning on the priority date, 
which is July 29,2002. 
For the Form 1040 U.S. Individual Income Tax Return for 2003, the Adjusted Gross Income is listed on line 34. 
* The full proffered wage, since the record contains no evidence of any wage payments 
made by the petitioner to the beneficiary in 2002 and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage and pay its 
owner's living expenses in 2002 and 2003. 
Counsel states on appeal that "the law requires that 'overall fiscal circumstances['] of the owner of a sole 
proprietorship should be considered when assessing its ability to pay wages" and cites to Matter of Ranchito 
Coletero, 2002-INA-104 (2004 BALCA). Counsel does not state how the Department of Labor's (DOL) Bureau 
of Alien Labor Certification Appeals (BALCA) precedent is binding on the AAO. While 8 C.F.R. 5 103.3(c) 
provides that precedent decisions of CIS are binding on all its employees in the administration of the Act, 
BALCA decisions are not similarly binding. Precedent decisions must be designated and published in bound 
volumes or as interim decisions. 8 C.F.R. 5 103.9(a). Nevertheless, the AAO does take into consideration the 
overall financial circumstances of the owner of a sole proprietorship, and the AAO will look at each piece of 
relevant evidence in the record. 
Counsel states that "[tlhe Service's reliance on K.C.P. Food Co. Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985) 
is misplaced in light of the fact that the immediate petitioner is a sole proprietorship." As stated above, reliance 
on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang 
v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 1989); K. C. P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 
1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), affd., 703 F.2d 571 (7" Cir. 1983). Regardless, the 
AAO will look at other evidence in the record regarding the owner's overall financial circumstances. 
Counsel states that "the timing of payments from sales impacts the profitlloss figures for tax return purposes." 
Counsel, in talking about timing of payments, seems to be asserting that even though the petitioner's tax returns 
were prepared pursuant to the cash method, the petitioner's profits and losses should be recognized in a different 
manner. The petitioner's tax returns were prepared pursuant to cash convention, in which revenue is recognized 
when it is received, and expenses are recognized when they are paid. This office would, in the alternative, have 
accepted tax returns prepared pursuant to accrual convention, if those were the tax returns the petitioner had 
actually submitted to IRS. 
This office is not, however, persuaded by an analysis in which the petitioner, or anyone on its behalf, seeks to 
rely on tax returns or financial statements prepared pursuant to one method, but then seeks to shift revenue or 
expenses from one year to another as convenient to the petitioner's present purpose. If revenues are not 
recognized in a given year pursuant to the cash accounting then the petitioner, whose taxes are prepared 
pursuant to cash rather than accrual, and who relies on its tax returns in order to show its ability to pay the 
proffered wage, may not use those revenues as evidence of its ability to pay the proffered wage during that 
year. Similarly, if expenses are recognized in a given year, the petitioner may not shift those expenses to 
some other year in an effort to show its ability to pay the proffered wage pursuant to some hybrid of accrual 
and cash accounting. The amounts shown on the petitioner's tax returns shall be considered as they were 
submitted to IRS, not as amended pursuant to the accountant's adjustments. If the petitioner wished to 
persuade this office that accrual accounting supports the petitioners continuing ability to pay the proffered 
wage beginning on the priority date, then the petitioner's accountant was obliged to prepare and submit 
audited financial statements pertinent to the petitioning business prepared according to generally accepted 
accounting principles. 
Page 6 
Counsel states that "[ilndicia of [the] petitioner's ability to pay is further seen in the [clash [fllow 
[sltatements, identifying [the] beneficiary's predecessor's salar[ies]." The record includes the petitioner's 
cash flow statements. 
The petitioner's cash flow statements are essentially unaudited financial statements. The regulation at 8 C.F.R. 
§ 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its ability to pay 
the proffered wage, those financial statements must be audited. As there is no accountant's report accompanying 
these statements, the AAO cannot conclude that they are audited statements. Unaudited financial statements are 
the representations of management. The unsupported representations of management are not reliable evidence 
and are insufficient to demonstrate the ability to pay the proffered wage. 
In addition to counsel's statement indicating that the beneficiary has replaced or will replace the owner's wife, the 
record also contains copies of the Form W-2 Wage and Tax Statements for the owner's wife for 2001,2002, and 
2003. The record does not, however, verify her full-time employment, or provide evidence that the petitioner has 
replaced or will replace her with the beneficiary. In general, wages already paid to others are not available to 
prove the ability to pay the wage proffered to the beneficiary at the priority date of the petition and continuing to 
the present. Moreover, there is no evidence that the position of the owner's wife involves the same duties as 
those set forth in the Form ETA 750. The petitioner has not documented the position, duty, and termination of 
the worker who performed the duties of the proffered position. If the owner's wife performed other kinds of 
work, then the beneficiary could not have replaced her. 
Counsel states that "[tlhe Roth IRA when valued in combination with [the] petitioner's other assets, more 
than demonstrates [the] petitioner's ability to pay the proffered wage." The record contains the owner's 
retirement statement for April 2004 for the owner's Roth IRA, which includes time deposits and money 
market funds, of $9,873.84. The record also includes bank accounts information dated June 9,2004 regarding 
the owner's money market funds and Roth IRAs. While Roth IRAs do represent a form of liquid assets 
available to pay the wage, the market value of $9,873.84 cannot be considered because it does not take into 
account penalties that will be assessed if money is withdrawn prior to the owner meeting all the qualifications 
for a Roth IRA withdrawal, and the record does not contain information regarding the amount the owner will 
actually have after penalties have been assessed. Moreover, $9,873.84 is not enough to cover the difference 
between the proffered wage and the petitioner's adjusted gross income for 2003. Furthermore, the AAO 
cannot determine the amount of money the owner had in his Roth IRAs in 2002 and 2003 as the retirement 
statement is for April 2004 and the other bank accounts information were dated June 9, 2004. 
Counsel states that the owner's other assets include its checking account balance, money market and 
individual retirement accounts, home equity, and net worth of franchise, and the amounts for those assets for 
2002 and 2004 are indicated on the petitioner's cash flow statements. The record also contains information 
regarding the owner's mortgage payment. The AAO, as shown above, has already addressed the owner's 
cash flow statements, where information regarding the owner's checking account is listed, and retirement 
accounts. Moreover, home equity and net worth of franchise are not liquid assets. Thus, they cannot be 
considered as available cash for the sole proprietor to pay the proffered wage andlor personal expenses. 
Additionally, using the home's equity would involve obtaining a loan and creating a debt. Similarly, the net 
worth of the franchise would only be valued if the petitioner sought a loan or sold the business. 
Counsel states that "[the owner] has paid off his BMW," and the record contains the owner's car payoff 
information. However, the car payoff information does not indicate the amount the owner paid. Additionally, 
the fact that the owner paid off his car on June 4, 2003 is irrelevant to the petitioner's ability to pay the 
proffered wage because it does not show that the amount of cash used for payment was available in 2002 and 
that amount was definitely not available in 2003 to pay the proffered wage because it was used to pay for the 
car. 
Counsel states that "[tlhe Service erred as a matter of law when it failed to make a positive ability to pay 
determination based on net current assets." Counsel also states that "the record demonstrates that the 
petitioner's current net assets as judge by the funding source or franchise owner's current net assets, were 
valued at $85,343.00 . . . as of December 31, 2002 . . . and $222,602.00 . . . as of June 14,2004." The record 
contains a copy of the Yates memorandum regarding net current assets. 
Net current assets are the difference between the petitioner's current assets and current liabilities, and CIS may 
review the petitioner's net current assets as an alternative means of determining the petitioner's ability to pay 
the proffered wage. However, unlike corporate tax returns, the Form 1040 U.S. Individual Income Tax 
Return does not have a Schedule L listing a petitioner's assets and liabilities. Thus, absent an audited 
statement, CIS generally does not look at a sole proprietorship's net current assets. Moreover, counsel fails to 
indicate where the figure for the petitioner's net current assets come from as they do not appear in the cash 
flow statements or the balance summary. Even if the figures are from the cash flow statements or the balance 
summary, both documents are unaudited and thus are not persuasive evidence. 
The record includes a copy of the petitioner's financial statements, titled "balance summary." This financial 
statements is unaudited, and as stated earlier, unaudited financial statements are the representations of 
management. The unsupported representations of management are not reliable evidence and are insufficient to 
demonstrate the ability to pay the proffered wage. 
Counsel points to the owner's available line of credit, and the record contains the owner's available line of 
credit information. In calculating the ability to pay the proffered salary, CIS will not augment the petitioner's net 
income or net current assets by adding in credit limits, bank lines, or lines of credit. A "bank line" or "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 
Barron's Dictionary of Finance and Investment Terms, 45 (1998). 
Since the line of credit is a "commitment to loan" and not an existent loan, the petitioner has not established that 
the unused funds from the line of credit are available at the time of filing the petition. As noted above, a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Moreover, the petitioner's existent loans will be reflected in the balance sheet provided in the tax return or audited 
financial statement. Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a 
cash asset. However, if the petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner 
must submit 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. Finally, CIS will 
give less weight to loans and debt as a means of paying salary since the debts will increase the fm's liabilities 
and will not improve its overall financial position. Although lines of credit and debt are an integral part of any 
business operation, CIS must evaluate the overall 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 of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
Counsel cites to Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967) and states that Matter of Sonegawa applies 
with respect to the petitioner's 2002 reported loss because the petitioner expanded in 2002 and experienced a 
substantial increase in business after the expansion. The record includes information regarding 7-Eleven 
Page 8 
franchising. Matter of Sonegawa relates to petitions filed during uncharacteristically unprofitable or difficult 
years but only in a framework of profitable or successful years. The petitioning entity in Sonegawa had been in 
business for over 11 years and routinely earned a gross annual income of about $100,000.00. During the year in 
which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old 
and new locations for five months. There were large moving costs and also a period of time when the petitioner 
was unable to do regular business. The Regional Commissioner determined that the petitioner's prospects for a 
resumption of successful business operations were well established. The petitioner was a fashion designer whose 
work had been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and 
society matrons. The petitioner's clients had been included in the lists of the best-dressed California women. The 
petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges and 
universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the 
petitioner's sound business reputation and outstanding reputation as a couturiere. 
Nothing in the record, aside from counsel's assertion, indicates that the petitioner underwent expansion in 
2002, and the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The petitioner did not have an 
adjusted gross income that covered the annual proffered wage in 2002 and 2003. The petitioner's adjusted gross 
income in 2001 was $40,238.00, and it is unlikely that the petitioner could have paid the expenses of a 
household of 3 in 2001 with $1,498.00, which is the amount left over after subtracting the proffered wage. 
Thus, unlike the petitioner in Sonegawa with one uncharacteristically unprofitable or difficult year but only in 
a framework of profitable or successful years, the record indicates that all three of the years the AAO 
reviewed were unprofitable years. 
Counsel also states that "the fact this franchise has been in operation since 1997, supports seven (7) 
employees, and has increased its revenues from $867,771.00 to $1,865,423.00 in just two years, there should 
be no question that this petitioner both had a reasonable expectation of paying the proffered wage, and the 
ability to pay and continue to pay the proffered wage." The facts that the petitioner has been in operation for 
9 years and employs 7 employees are not in and of themselves unique factors. Moreover, the petitioner's 
certified public accountant's assertion that the petitioner was listing the money used to buy the franchise in its 
2001 and 2002 tax returns calls into question when the current owner acquired the franchise and how long has 
he personally been the owner. The fact that the petitioner increased its revenues in 2 years is likewise not a 
unique factor, especially since the AAO cannot determine the profitability of the petitioner for the years 
before 2001 andlor after 2003 based on the evidence in the record. As stated earlier, the petitioner in this case 
is distinct from the petitioner in Sonegawa, and the totality of the circumstances in this case do not show that 
the petitioner has the ability to pay the proffered wage. 
Counsel cites to an unpublished AAO decision in stating that the reasonable expectation of increased business 
can be considered. While 8 C.F.R. 5 103.3(c) provides that precedent decisions of CIS are binding on all its 
employees in the administration of the Act, unpublished decisions are not similarly binding. Precedent decisions 
must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 5 103.9(a). 
The Form 1040 U.S. Individual Income Tax Returns for 2001 and 2002 include "7-Eleven charges" under the 
Schedule C, Part V as other expenses. A letter from the petitioner's certified public accountant dated June 15, 
2004 states that the charges were paid prior to operation of the franchise and thus should not be included. The 
AAO would consider not looking at the 7-Eleven charges if it was a one-time expense and the record contains 
documents showing that the charges were in fact money used to buy the franchise. However, the charges 
appear on two different tax returns, in 2001 and 2002, and nothing in the record aside from the certified 
Page 9 
public accountant's statement indicate that the charges were in fact the cost of the franchise and/or not 
recurring annual fees. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Corn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Corn. 1972)). 
Counsel states that "[tlhis case is an exceptional case warranting humanitarian consideration." This is not a 
legal argument, which counsel concedes, and thus is irrelevant to whether the petitioner has the ability to pay. 
After a review of the evidence, it is concluded that the petitioner has not established its ability to pay the salary 
offered as of the priority date of the petition and continuing until the beneficiary obtains lawful permanent 
residence. The decision of the director to deny the petition was correct, based on the evidence in the record 
before the director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
[note re potentially 2 full-time jobs??] 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.