remanded EB-3 Case: Culinary

identifykg dail ;k!eted to 
prevent clta;y unwqmmtd 
invasion of persod ptivacy 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
h4 
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. $ 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. Wiernann, Chief 
Administrative Appeals Office 
Page 2 
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 case will be remanded to the director for Mer 
investigation and entry of a new decision. 
The petitioner is a Korean & Japanese deli and restaurant. It seeks to employ the beneficiary permanently in the 
United States as a Korean specialty cook. 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. 
On appeal, counsel submits additional evidence and asserts that the director erred in his analysis of the evidence 
submitted and maintains that the petitioner has the financial ability to pay the proffered wage. 
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 nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 5 204.5(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 ths 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, 
the day the Form ETA 750 was accepted for processing by any office within the employment system of the 
Department of Labor. See 8 CFR 5 204.5(d). Here, the Form ETA 750 was accepted for processing on March 13, 
2003. The proffered wage as stated on the Form ETA 750 is $1 1.84 per, which amounts to $21,548.80 based on a 
35-hour workweek as stated on the ETA 750. On Part B of the ETA 750, signed by the beneficiary on April 20, 
2001, the beneficiary claims that he has worked for the petitioner since August 1994. 
On Part 5 of the preference petition, filed January 20, 2004, the petitioner claims that it was established in April 
1984, reported a gross annual income of $284,098 in 2001, net annual income of $24,389 in 2001, and currently 
employs four workers. 
The petitioner is structured as a sole proprietorship. In support of its ability to pay the proffered wage, the 
petitioner initially submitted a copy of the sole proprietor's Form 1040, U.S. Individual Income Tax Return for 
2001 and 2002. These returns reflect that the sole proprietor files jointly with his spouse and declares no 
dependents. They contain the following information: 
Page 3 
Petitioner's gross receipts (Schedule C) $284,098 $293,270 
Petitioner's wages paid (Schedule C) $ 43,176 $ 66,030 
Petitioner's total expenses (Schedule C) $ 103,518 $123,406 
Petitioner's net profit (Sched. C ) $ 24,389 $ 5,458 
Total business net income (Form 1040) $ 24,389 $ 5,458 
Sole Proprietor's adjusted gross income (Form 1040) $ 59,968 $ 84,856 
The petitioner also provided copies of the beneficiary's individual income tax returns for 2001 and 2002. The 
original 2001 return was supported by a Wage and Tax Statement (W-2), which shows withholding for social 
tax, but no withholding for federal income taxes, and reflects that the petitioner= 
aid the beneficiary $10,920 in wages. A draft of a Form 1040X, Amended U.S. Individual 
that the beneficiary reported an increase in income due to "error Sch C income not 
reported on original return." No schedule C is included with this document, but the amended amount of income is 
shown to be $2 1,329. 
The beneficiary's 2002 individual income tax return, accompanied by a W-2 issued by 
reflects payment of wages of $23,420. 
On August 3, 2004, the director issued a request for evidence, instructing the petitioner to submit a list of his 
monthly expenses, including rent or mortgage, food, utilities, etc. The director also requested copies of the 
beneficiary's W-2s for 2001, if the beneficiary employed him. 
In response, the petitioner, through counsel, supplied a copy of monthly expenses amounting to $3,45 1 per month 
in 2001. Counsel also resubmitted a copy of the beneficiary's 2001 W-2 showing wages of $10,920, as well as a 
copy of the beneficiary's original Form 1040 for 2001 and the draft of the 2001 amended tax return that were 
initially provided. Additionally, the petitioner provided a copy of a Form 1099-Misc that appears to represent non- 
employee compensation of $10,409 paid to the beneficiary in 2001 by the petitioner, although the year of the form 
appears to be altered. 
The director determined that the evidence submitted did not establish that the petitioner had the continuing ability 
to pay the proffered wage beginning on the priority date, and, on March 28, 2005, denied the petition. The 
director noted that the petitioner's adjusted gross income of $59,968 less the yearly household expenses of 
$41,412 for 2001 would have left $18,556 available to be applied toward the proffered wage. He further noted 
that the wages of $10,920 reflected on the beneficiary's 2001 W-2 were not sufficient to cover the proffered 
wage. The director, however, identified the proffered wage as $24,627.20, rather than $21,548.80. 
On appeal, counsel asserts that the director failed to consider the appropriate proffered wage and also failed to 
consider the Form 1099 issued to the beneficiary in 2001. Counsel resubmits the beneficiary's 2001 and 2002 tax 
returns along with copies of the 10991W-2(s) issued and additionally submits copies of the beneficiary's individual 
tax returns and corresponding W-2s for 2003 and 2004. In both 2003 and 2004, the beneficiary's W-2(s) reflect 
that the petitioner paid him $23,920. The beneficiary's 2003 tax return was amended to reflect additional 
deductions and a change in filing status. 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (CIS) will first examine whether the petitioner may have 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. Lesser amounts will also be considered, and if either the petitioner's 
net income or net current assets can cover any difference between the actual wages paid the beneficiary and the 
proffered wage during a given period, then the petitioner is deemed to have established its ability to pay the 
certified salary for that period. In the instant case, as noted above, the W-2s and (Form 1099) submitted with the 
petitioner's evidence reflect the beneficiary's compensation as follows: 
In determining the petitioner's ability to pay the proffered wage, CIS will generally examine the net income figure 
reflected on the petitioner's federal income tax return, without consideration of depreciation or other expenses. In 
K.C.P. Food Co. v. Sava, 623 F. Supp. 1080, 1084 (S.D.N.Y. 1985), the court found that CIS had properly relied 
upon the petitioner's net income figure as stated on the petitioner's corporate income tax returns, rather than on the 
petitioner's gross income. 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. l? Feldman, 736 F.2d 1305 (9~ Cir. 
1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Tex. 1989); Ubeda v. Palmer, 539 F. 
Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7& Cir. 1983). 
As discussed above, the petitioner is a sole proprietorship; a business in which an individual 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. As noted above, 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), afd, 703 F.2d 57 1 
(7~ Cir. 1983). Because the overall circumstances of a sole proprietor are part of the review of the ability to pay a 
certified wage, sole proprietors often provide summaries of their monthly household expenses. 
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, starting with 2001, the difference between the wages reflected on the beneficiary's W-2 and 
the proffered wage of $21,548.80 is $10,628.80. After deducting household annual expenses of $41,412 from the 
sole proprietor's adjusted gross income of $59,968, the remaining sum of $18,556 appears to be sufficient to 
cover the $10,628.80 deficit. The remainder of the wages shown to be paid to the beneficiary in 2002,2003, and 
2004 exceed the proffered wage of $21,548.80 and would appear to establish the petitioner's ability to pay the 
certified salary. This case will be remanded, however, in order to secure specific corroboration fiom the 
petitioner that the wages and compensation that have been shown to be paid to the beneficiary are corroborated by 
the petitioner's actual records such as the wages and salaries reflected on Schedule C of the sole proprietor's tax 
returns, including 2003 and 2004, as well as state wage or unemployment reports identifying the employees and 
their wages. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). It is also recommended that the 
petitioner be requested to explain the 2001 Form 1099 alteration of the year and why the position is described as a 
new position on part 6 of the 1-140, if, as claimed by the beneficiary, it has employed him since 1994. It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and 
attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the 
truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582,591-592 (BIA 1988). 
In view of the foregoing the director's decision is withdrawn. The case is remanded to the director to request 
additional evidence fiom the petitioner pursuant to the requirements of 8 C.F.R. 4 204.5(g)(2). Similarly, the 
petitioner may provide additional evidence within a reasonable period of time to be determined by the director. Upon 
receipt of all the evidence, the director will review the entire record and enter a new decision. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for further 
action consistent with the foregoing and entry of a new decision, which, if adverse to the 
petitioner, is to be certified to the AAO for review.