sustained EB-3 Case: Construction

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U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC-04-098-5 1793 Office: CALIFORNIA SERVICE CENTER Date: MAY 0 9 2006 
IN RE: Petitioner: 
Beneficiary: 
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. tj 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 
WAC-04-098-5 1793 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition 
will be approved. 
The petitioner is a construction company. It seeks to employ the beneficiary permanently in the United States 
as a plasterer and stucco mason. 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, the petitioner submits a brief statement andlor additional evidence'. 
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 at 8 C.F.R. 4 204.5(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 h 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 C.F.R. 5 204.5(d). Here, the Form ETA 750 was accepted for processing on 
November 2, 2001. The proffered wage as stated on the Form ETA 750 is $24.13 per hour or $50,190.40 per 
year. The Form ETA 750 states that the position requires three (3) years experience in the job offered. On 
the Form ETA 750B, the beneficiary did not claim to have worked for the petitioner2. 
The evidence in the record of proceeding shows that the petitioner is akin to a sole proprietorship and its fiscal 
year is based on calendar year. The petition was filed with Form 1040 US Individual Income Tax Return 
filed by the owners of the petitioner for 2001 and 2002 pertinent to the ability to pay the proffered wage. 
Because the director deemed the evidence submitted insufficient to demonstrate the petitioner's continuing 
ability to pay the proffered wage beginning on the priority date, on July 3, 2004, the director issued a request 
I 
 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). 
2 
 Counsel submits payroll records for the second and third quarters of 2005 showing that the petitioner hired 
and compensated the beneficiary. 
WAC-04-098-5 1793 
Page 3 
for evidence (WE) pertinent to that ability. The director requested evidence of the petitioner's ability to pay 
the proffered wage for years 2001 to the present, especially a tax return for 2003, monthly expenses for the 
sole proprietor's household, the beneficiary's W-2 forms for 2001 through 2003, and Form DE-6 Quarterly 
Wage Report for the last 4 quarters. In response, the petitioner submitted Form 1040 for 2003 and monthly 
expenses for the sole proprietor. 
On October 14, 2004, the director determined that the petitioner failed to establish its ability to pay the 
beneficiary's proffered wage from the priority date to the present based on the adjusted gross incomes 
reflected on the sole proprietor's individual tax returns and denied the petition accordingly. 
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 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. In the instant case, the petitioner did not submit W-2 forms or 
any other compensation documents for the beneficiary and did not claim that he hired and paid the beneficiary 
the proffered wage. 
The evidence shows that the petitioner is a sole proprietorship. The record contains copies of the sole proprietor's 
Form 1040 U.S. Individual Income Tax Return for 2001 through 2003. The record before the director closed on 
September 24,2004 with the receipt by the director of the petitioner's submissions in response to the WE. 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 available. 
Unlike a corporation, a sole proprietorship is not legally separate from its owner. 
 Therefore the sole 
proprietor's income, liquefiable 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. In addition, they must show that they can 
sustain themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 
571 (7'h 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 (approximately thirty percent 
of the petitioner's gross income). 
For a sole proprietorship, CIS considers net income to be the figure shown on line 333, Adjusted Gross 
Income, of the owner's Form 1040 U.S. Individual Income Tax Return. The owner's tax returns demonstrate 
the following financial information concerning the petitioner's ability to pay the proffered wage of 
$50,190.40 per year from the priority date. 
In 2001, the Form 1040 stated adjustable gross income of $24,728. 
3 
 The line for adjusted gross income on Form 1140 is Line 33 for most years, such as 2001 in the instant case, 
however, every year may be different, for instance it is Line 34 for 2003, and Line 35 for 2002. 
WAC-04-098-5 1793 
Page 4 
In 2002, the Form 1040 stated adjustable gross income of $44,760. 
In 2003, the Form 1040 stated adjustable gross income of $47,584. 
The petitioner submitted the sole proprietor's monthly expenses in response to the director's RFE. The 
statement of monthly expenses shows that the sole proprietor's household needs $3,414 per month or $40,968 
per year. The sole proprietor's adjusted gross income reflected on Form 1040 is not sufficient to pay the 
proffered wage for years 2001 through 2003 even without taking the owner's personal living expenses into 
account. Therefore, the petitioner did not establish that the owner could cover his existing business expenses, 
pay the proffered wage as well as sustain himself and his dependents for the years 200 1 through 2003. 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
ability to pay the proffered wage from the priority date. Counsel states that that the petitioner paid to 
subcontractors as cost of labor; that to exorbitant costs of outside contractor/plasterers, the petitioner filed the 
labor certification application to replace these subcontractors with the beneficiary; the amount already paid to 
subcontractors may be added back to the petitioner's ability to pay the proffered wage. The evidence in the 
record does not name these subcontractors, however, counsel submits a letter from the owner of the petitioner 
verifying its intent to hire the beneficiary as an in-house plasterer to substitute those subcontractors to perform 
the same job and the same duties as set forth on the ETA 750. The petitioner also submitted invoices showing 
payment to subcontractors for painting the wall and ceiling, baseboards doors and opening. Schedule C 
attached to the Form 1040 for 2001 through 2003 evidences that the petitioner paid subcontractors $89,670 in 
2001 and $99,595 in 2002, and paid labor cost of $106,700 in 2003, which is greater than the proffered wage 
of $50,190.40 for each of the years. In the case where the petitioner has established that the beneficiary will 
be replacing other workers/subcontractors performing the duties of the proffered position, the wages already 
to those workers/subcontractors may be shown to be 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. Accordingly, after a review 
of the petitioner's federal tax returns and all other relevant evidence, we conclude that in the instant case the 
petitioner has submitted sufficient evidence to establish that it had the ability to pay the proffered wage as of 
the priority date of the petition and continuing to present. 
Counsel's assertions on appeal have overcome the director's finding in his decision to deny the petition. The 
evidence submitted establishes that the petitioner had the continuing ability to pay the proffered wage 
beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
fj 1361. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved.