dismissed EB-3 Case: Stonework

U.S. Department of fIomeland Security 
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PUBLIC COPY 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: -1 Office: NEBRASKA SERVICE CENTER  ate: B 9 2006 
LIN-04-125-51302 
PETITION: Immigrant 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. 9 1153(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner operates a business related to stonework and seeks to employ the beneficiary permanently in 
the United States as a stonecutter. As required by statute, the petition filed was submitted with Form ETA 
750, Application for Alien Employment Certification, approved by the Department of Labor (DOL). As set 
forth in the director's March 25, 2005, denial, the case was denied based on the petitioner's failure to 
demonstrate its ability to pay the proffered wage from the priority date of the labor certification until the 
beneficiary obtains permanent residence. 
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 evidence in the record, including new evidence properly submitted upon appeal.' 
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 the decision. 
Further elaboration of the procedural history will be made only as necessary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
 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 nature, for which qualified workers are not available in the United 
States. 
The regulation 8 C.F.R. fj 204.5(g)(2) states in pertinent part: 
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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 CFR 
fj 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Certification as certified by the U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted for processing by the relevant office within the DOL employment 
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. fj 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 
ofsoriano, 19 I&N Dec. 764 (BIA 1988). 
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Page 3 
system on April 26, 2001. The proffered wage as stated on the Form ETA 750A is $17.53 per hour, 40 hours 
per week for an annual salary of $36,462.40. The labor certification was approved on April 25, 2003.~ The 
petitioner filed an 1-140 Petition for the beneficiary on March 23, 2004.~ Counsel listed the following 
information on the 1-140 Petition related the petitioning entity: established: June 9, 1999; gross annual 
income: $1 15,734.00; net annual income: $44,611; and current number of employees: 2. 
The Service Center denied the petition on March 25, 2005, based on the petitioner's failure to demonstrate its 
ability to pay the beneficiary from the time of the priority date until the beneficiary obtains permanent 
residence. 
The petitioner appealed and the matter is now before the AAO. We will first examine the petitioner's ability 
to pay, and then consider the petitioner's additional arguments on appeal. The evidence in the record of 
proceeding regarding the petitioner's ability to pay includes the petitioner's Forms 1040, for the years 2001, 
and 2002, along with a statement of the owner's estimated household expenses and representative bills, a 
bank letter regarding the petitioning company's bank account, a bank letter regarding the owner's bank 
account, a copy of one check paid to the beneficiary, and a check ledger showing three additional payments to 
the beneficiary. 
First, in determining the petitioner's ability to pay the proffered wage during a given period, Citizenship & 
Immigration Services (CIS) will examine whether the petitioner employed and paid the beneficiary during 
that period. If the petitioner establishes by documentary evidence that it employed the beneficiary at a salary 
equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. 
The petitioner provides that it did not employ the beneficiary until after he obtained work authorization based 
his filed 1-485 Adjustment of Status application. The petitioner has submitted a copy of one check dated 
December 23, 2004 demonstrating payment of wages to the beneficiary in the amount of $2,305. 
Additionally, the petitioner has provided a ledger showing three additional net payments to the beneficiary in 
the amounts of $2,305 on January 31,2005 (for the month of January); $2,218 on February 28,2005 (for the 
month of February); and $2,629.77 on March 31, 2005 (for the month of March). The four payments 
We note that the case involves the substitution of a beneficiary on the labor certification. Substitution of 
beneficiaries is permitted by the DOL. DOL had published an interim final rule, October 23, 1991, which 
limited the validity of an approted labor certification to the specific alien named on the labor certification 
application (See 56 FR 54925, 54930). The interim final rule eliminated the practice of substitution. On 
December 1, 1994, the U.S. District Court for the District of Columbia, acting under the mandate of the U.S. 
Court of Appeals for the District of Columbia in Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994), issued an 
order invalidating the portion of the interim final rule, which eliminated substitution of labor certification 
beneficiaries. The Kooritzky decision effectively led 20 CFR 656.30(~)(1) and (2) to read the same as the 
regulations had read before November 22, 1991, and allow the substitution of a beneficiary. Following the 
Kooritzky decision, DOL processed substitution requests pursuant to a May 4, 1995 DOL Field 
Memorandum, which reinstated procedures in existence prior to the implementation of the Immigration Act of 
1990 (IMMACT 90). DOL delegated responsibility for substituting labor certification beneficiaries to the 
Service based on a Memorandum of Understanding. Procedures for the Service were then set forth in a 
memorandum from Louis Crocetti, INS Associate Commissioner, Substitution of Labor Certification 
Beneficiaries, File No. HQ 204.25P (March 7, 1996). 
3 
 Here, we note that the petitioner failed to file the beneficiary's signed Form ETA 750B with the petition as 
required by the Louis Crocetti, Assoc. Comm., Adjudications, HQ 204.25-P (Mar. 7, 1996), Memo. 
Page 4 
1 
however are insufficient to demonstrate the petitioner's ability to pay the beneficiary the proffered wage fi-om 
the priority date until the beneficiary ~btains'~ermanent residence. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return. 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 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
The petitioner is a sole proprietor, a business in which one person operates the business in his or her personal 
capacity. Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a corporation, a sole proprietorship does not 
exist as an entity apart from the individual owner. See Matter of United Investment Group, 19 I&N Dec. 248, 
250 (Comm. 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. Sole proprietors report income and expenses from 
their businesses on their individual (Form 1040) federal tax return 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. Sole 
proprietors must show that they can cover their existing business expenses as well as pay the proffered wage 
out of their adjusted gross income or other available funds. In addition, sole proprietors must show that they 
can sustain themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), am, 703 
F.2d 571 (7" 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 himself, his spouse and five dependents on a gross income of 
slightly more than $20,000 where the beneficiary's proposed salary was $6,000 or approximately thirty 
percent (30%) of the petitioner's gross income. 
In the instant case, the sole proprietor supports a family of four, including himself, and his wife, and two 
children in Aurora, Colorado. The tax returns reflect the following information for the following years4: 
If we reduced the owner's adjusted gross income (AGI) by $36,462.40, the proffered wage that the petitioner 
'must demonstrate that it can pay, the owner would be left with an adjusted gross income of -$4,870.40 in 
2002, $48,587.60 in 2001, and we have no information to determine this for the years 2003 or 2004. Based 
4 
 No tax return was submitted for the year 2003, or 2004, which would not have been available at the time 
that the petitioner submitted the 1-140 Petition, but would have been available at the time that the petitioner 
submitted its appeal. 
The owner also reports ownership of a nail salon, which registered a $9,866 loss in 2002, and is reflected in 
the owner's reduced AGI. 
6 
 The owner's AGI reflects a $28,000 capital gain from the sale of stock. 
Great 
Marble and 
Granite 
2002 
2001 
Gross Receipts 
(Schedule C) 
$318,300 
$440,180 
Petitioner's 
AGI (1040) 
$3 1,592' 
$85,050~ 
Wages Paid 
(Schedule C) 
$0 
$0 
Net profit from 
business 
(Schedule C) 
$44,6 1 1 
$61,638 
Page 5 
on the above analysis, the petitioner cannot demonstrate that it can pay the beneficiary the proffered wage in 
2002 and support himself and his family. The petitioner submitted a statement of owner's estimated 
expenses, and copies of bills to document the estimated expenses. The owner's listed estimated expenses 
total $43,400.16 per year, based on monthly bills in the amount of $3,616.68, so that the owner would be able 
to pay the proffered wage in the year 200 1 and still support his family. 
The petitioner also submitted two letters from Premier ~ank:~ one letter confirmed that the individual owner 
had a current bank balance of $61,960.35 as of December 23, 2003; the second letter provided that the 
petitioning business had a balance of $123,863.69 as of December 23,2003, and that the business account had 
a balance of $1 19,723 on April 23, 2001. While the owner's assets are given consideration in the case of a 
sole proprietor, the year specifically in question is 2002. Counsel did not provide any evidence to show that 
the petitioner had sources available to support himself and his family in the year 2002. The personal checking 
only provides his balance at the end of 2003, not the year in question. 
Furthermore, we note regarding the letter concerning the business' bank account, bank statements are not 
among the three types of evidence listed in 8 C.F.R. 8 204.5(g)(2) as acceptable to establish a petitioner's ability 
to pay a proffered wage. This regulation allows for consideration of additional material "in appropriate cases." 
The petitioner has not demonstrated why the documentation specified at 8 C.F.R. tj 204.5(g)(2) is inapplicable or 
otherwise does not provide an accurate financial picture of the petitioner. Further, no evidence was submitted to 
demonstrate that the funds reported in the petitioner's bank statements reflect funds that would be additionally 
available to the amounts shown by the petitioner's tax rem, such as the petitioner's gross receipts, which would 
already be considered as a factor of the petitioner's AGI. As a fundamental point, the petitioner's tax returns are a 
I 
 better reflection of the company's financial picture, since tax returns reflect the company's liabilities. Bank 
statements do not reflect whether the petitioner has any outstanding liabilities. 
On appeal, counsel contends that: (1) the petitioner had the ability to pay until the time that the beneficiary 
"ported" to a new employer under the American Competitiveness in the Twenty-First Century Act (AC21); 
and (2) that the beneficiary would be allowed to port to a new employer since his 1-485 Adjustment of Status 
application8 had been pending for over 180 days and he moved to a same or similar position to work for 
- 
Regarding the petitioner's first argument that the petitioner had the ability to pay the beneficiary, counsel cites 
to the May 4, 2004 William R. Yates, Associate Director for Operations, Determination of Ability to Pay 
under 8 CFR 204.5(g)(2), Memo, and notes correctly that CIS will examine the petitioner's: (1) net income; 
(2) net current assets; or (3) the petitioner's employment of the beneficiary. 
We have reviewed the petitioner's net income above, under which test the petitioner cannot demonstrate its 
ability to pay the beneficiary the proffered wage from the priority date until the beneficiary obtains permanent 
' 
residence. Counsel then contends that the bank account records demonstrate that the petitioner had the ability 
to pay since the back accounts represent the petitioner's net current assets. Counsel's statement does not 
account for the petitioner's liabilities, only the petitioner's assets. With respect to the petitioner's business 
accounts, the petitioner's tax returns provide the best documentation regarding the company's assets, 
The letters that Premier Bank provided were signed by 
 Senior Banking Associate. It is 
unclear whether is related to the petitioner. 
8 
On July 3 1, 2002, the Service published an interim rule allowing for the concurrent filing of Form 1-140 and 
Form 1-485. See: Federal Register: July 31,2002, (Volume 67, Number 147), page 49561. 
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Page 6 
I 
exhibiting cash, and gross income, minus the business' expenses (or liabilities). For this reason, we find that 
the petitioner's ,bank accounts cannot be viewed separately without considering other factor, such as 
liabilities. Therefore, we cannot conclude based on the bank letters provided alone that the petitioner has met 
the net current assets test, without factoring in the petitioner's liabilities. The petitioner has not provided an 
audited financial statement outlining both its assets and its liabilities, so that we are unable to calculate the 
petitioner's net current assets. 
Counsel then contends that the Yates memo allows for approval of the petition where the petitioner can 
demonstrate that it paid the beneficiary the proffered wage. The petitioner has provided evidence to 
demonstrate that it paid the beneficiary the proffered wage after he began working in the form of a copy of 
one check, and a ledger showing three additional payments. This evidence, however, relates to late 2004, and 
early 2005, and by itself would be insufficient to demonstrate the petitioner's ability to pay in the years 2002, 
2003, or 2004. 
Next, counsel contends that the beneficiary would be eligible to "port" to a new employer based on AC21 
9 106(c), which added a new subsection ('j) to section 204 of the INA, which states: 
Job Flexibility for Long Delayed Applicants for Adjustment of Status to Permanent 
Residence - A petition under subsection (a)(l)(D) for an individual whose application for 
adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 
180 days or more shall remain valid with respect to a new job if the individual changes jobs 
or employers if the new job is in the same or a similar occupational classification as the job 
for which the petition was filed. 
In the case at hand, the beneficiary's 1-485 Adjustment of Status application was filed on March 23, 2004 at 
the same time that the petitioner filed the 1-140 on behalf of the beneficiary. Counsel contends that after 180 
. 
 days, the beneficiary accepted an offer of employment form another company. Counsel references an Exhibit 
E regarding details of the beneficiary's new employment. We note that the record before us does not contain 
any Exhibit E, or the letter from the beneficiary's new employer. As we do not have the exact date that the 
beneficiary started with the new petitioner, it is unclear whether the beneficiary ported from an unapproved 
petition, or ported later from the denied petition. If the petition was unapproved at the time that the 
beneficiary ported, we would look to guidance provided by the May 12,2005, William R. Yates Memorandum, 
"Interim Guidance for Processing Form 1-140 Employment-Based Immigrant Petitions and Form 1-485 and H- 
IB Petitions Affected by [AC21]. " 
The Yates Memo, in pertinent part, provides for the following: 
Question 1. 
 How should service centers or district offices process unapproved 1-140 
petitions that were concurrently filed with 1-485 applications that have 
been pending 180 days in relation to the 1-140 portability provisions 
under 5 106(c) of AC21? 
Answer: 
 If it is discovered that a beneficiary has ported off of an unapproved 1-140 
and 1-485 that has been pending for 180 days or more, the following 
procedures should be applied: 
A. Review the pending 1-140 petition to determine if the preponderance of the 
evidence establishes that the case is approvable or would have been 
- Page 7 
approvable had it been adjudicated within 180 days. 
 If the petition is 
approvable but for an ability to pay issue or any other issue relating to a time 
after the filing of a petition, approve the petition on it's [sic] merits. Then 
adjudicate the adjustment of status application to determine if the, new 
position is the same or similar occupational classification for 1-140 
portability purposes. 
B. If additional evidence is necessary to resolve a material post-filing issue such 
as ability to pay, an RFE can be sent to try to resolve the issue. When a 
response is received, and if the petition is approvable, follow the procedures 
in part A above. 
(Emphasis in original). 
Based on the foregoing, the instant petition cannot be approved as the petitioner has failed to demonstrate its 
ability to pay the proffered wage from the time of the priority date until the beneficiary obtains permanent 
residence, and the instant petition cannot be approved. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. The beneficiary's Adjustment of Status application will be returned to the 
Director, Nebraska Service Center, so that the director may review the beneficiary's claim for portability under 
the provisions of AC21 (as the director is the individual with jurisdiction over the beneficiary's 1-485).