sustained EB-3 Case: Floor Sanding

fmEYC COPY 
U.S. Department of flomeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
B6 
/ 
Office: VERMONT SERVICE CENTER Date: 0 2 2006 
EAC 05 124 50855 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant of the Immigration and 
Nationality Act, 8 U.S.C. 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
ed your case. Any further inquiry must be made to that office. 
, Robert 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 (MO) on appeal. The appeal will be sustained. 
The petitioner is a floor sanding and finishing business. It seeks to employ the beneficiary permanently in the 
United States as a floor sander. 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 6, 2005 denial, the single issue in ths 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)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 153(b)(3)(A)(iii), 
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 unskilled labor, not of a temporary or 
seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. 9 204.5(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. 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 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 CFR 8 204.5(d). The priority date in the instant petition is April 
30,200 1. The proffered wage as stated on the Form ETA 750 is $9.54 per hour. or $1 9,843.20 annually. 
The MO takes a de novo look at issues raised in the denial of ths 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 MO considers all pertinent 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
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. 9 103.2(a)(l). The record in the instant case 
appeal includes counsel's brief, a copy of the United States Department of Health and Human Services' (HHS) 
Poverty Guidelines and Federal Register References, and a swom affidavit from the petitioner. Other relevant 
evidence in the record includes the owner's 2001 through 2003 Forms 1040, U.S. Individual Income Tax Returns, 
including Schedule C, Profit or Loss from Business. The record does not contain any other evidence relevant to 
the petitioner's ability to pay the proffered wage. 
The petitioner's 2001 through 2003 Forms 1040 reflect adjusted gross incomes of $41,102, $51,828, and $33,979, 
respectively. The petitioner's 2001 through 2003 Forms 1040, Schedule Cs, also reflect net incomes from 
business as $42,730, $49,338, and $34,505, respectively. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $19,843.20 
based on its federal income tax returns, the owner's social security benefits of approximately $13,196 per 
year, and the poverty guidelines. 
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. Comm. 1977). See also 8 C.F.R. fj 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. Comm. 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 consideredprima 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 April 27, 2001, the beneficiary claims to 
have been employed by the petitioner since December 1997. However, counsel has not provided any Forms 
W-2, Wage and Tax Statements, or Forms 1099-MISC, Miscellaneous Income, issued by the petitioner for the 
beneficiary indicating that the petitioner employed the beneficiary during the pertinent years. In his swom 
affidavit on appeal, the petitioner does state that during the years 2001 through 2004, the beneficiary was 
compensated $1 1,368, $14,699, $14,614, and $1 5,084, respectively. The petitioner further states that the 
beneficiary is currently earning $10.00 per hour for his services. 
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, 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 (9th Cir. 1984); see also Chi-Feng 
Chang v. Thornburgh, 7 19 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). 
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). 
The petitioner is a sole proprietorship, 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), afd, 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 or approximately thirty 
percent (30%) of the petitioner's gross income. 
In the instant case, the sole proprietor supported a family of one. In 2001, the petitioner's adjusted gross 
income was $41,102 or $21,258.80 greater than the proffered wage of $19,843.20. If the nontaxable part of 
the petitioner's social security benefits of $4,250 were added to the petitioner's adjusted gross income, the 
result would be $45,352 or $25,508.80 greater than the proffered wage of $19,843.20. In 2002, the 
petitioner's adjusted gross income was $51,828 or $31,984.80 greater than the proffered wage of $19,843.20. 
If the nontaxable part of the petitioner's social security benefits of $1,929 were added to the petitioner's 
adjusted gross income, the result would be $53,757 or $33,913.80 greater than the proffered wage of 
$19,843.20. In 2003, the petitioner's adjusted gross income was $33,979 or $14,135.80 greater than the 
proffered wage. If the nontaxable part of the petitioner's social security benefits of $8,219 were added to the 
petitioner's adjusted gross income, the result would be $42,198 or $22,354.80 greater than the proffered wage 
of $19,843.20. The petitioner is obligated to establish that he has sufficient funds to pay the difference 
between the proffered wage of $19,843.20 and the actual wages paid to the beneficiary in the pertinent years. 
According to the petitioner's sworn affidavit, those differences were $8,478.20 in 2001, $5,144.20 in 2002, 
$5,229.20 in 2003, and $4,759.20 in 2004. Even though counsel did not submit a copy of the petitioner's 
monthly expenses (It is noted that the director failed to request this information.), it appears that the petitioner 
possessed sufficient funds to pay the proffered wage in 200 1 through 2003. 
It is noted that counsel contends that the petitioner has established its ability to pay the proffered wage and to 
sustain himself based on the poverty guidelines. However, the AAO does not recognize the Poverty 
Guidelines, issued by the Department of Health and Human Services, as an appropriate guideline to a 
petitioner's reasonable living expenses, and, therefore, will not consider them when determining the ability to 
pay the proffered wage. The poverty guidelines issued by the Department of Health and Human Services are 
used for administrative purposes - for instance, for determining whether a person or family is financially 
' 
eligible for assistance or services under a particular Federal program. 
 The only time CIS uses the poverty 
guidelines is in connection with Form 1-864, Affidavit of 
2 
 The Affidavit of Support is utilized at the time a beneficiary adjusts or consular processes an approved 
immigrant visa to provide evidence to CIS that the beneficiary is not inadmissible pursuant to section 
212(a)(4) of the INA as a public charge. The beneficiary in this matter has not advanced to a consular 
processing or adjustment of status phase of the proceeding. 
Again, while the petitioner did not provide a list of his monthly expenses, for the reasons discussed above, the 
assertions of counsel on appeal and the evidence submitted on appeal overcomes the decision of the director. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has been met. 
ORDER: The appeal is sustained.