sustained EB-3 Case: Tailoring

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
ide-ng d.ta &Wed to 
prevent clearly unwarranted 
invasion of privacy 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
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FILE: Office: VERMONT SERVICE CENTER 
 Date: HAY 1 5 2006 
EAC 03 126 51 143 
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. 5 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 50 
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. A 
subsequent motion to reopen was dismissed by the director. The petition is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is an alteration and tailoring business. It seeks to employ the beneficiary permanently in the 
United States as an alteration tailor. 
 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, noting 
that the petitioner's owners appeared to have underestimated their monthly expenses. 
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 October 5, 2004 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)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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 slulled 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. § 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 $ 204.5(d). The priority date in the instant petition is April 6, 
2001. The proffered wage as stated on the Form ETA 750 is $10.35 per hour or $21,528 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 copies of the owner's 2002 and 2003 Forms 1040, U.S. Individual Income Tax Return, including 
Schedule C, Profit or Loss from Business, a copy of the 2001 Federal Poverty Guidelines published by the U.S. 
Department of Health and Human Services (HHS)~, a copy of a contract with the U.S. Army Reserve Officers' 
Training Corps (R.O.T.C.) by a family member, a copy of a memorandum by William R. Yates, Associate 
Director for Operations, dated May 4, 2004, a copy of the owners' personal financial statement as of April 6, 
200 1, and a copy of the minutes of the Eastern Service Center (ESC)/AILA Liaison Teleconference of November 
26, 1994. Other relevant evidence in the record includes the owner's 2001 Form 1040, U.S. Individual Income 
Tax Return, including Schedule C, Profit or Loss from Business and an itemized list of the owners' monthly 
expenses. The petitioner's adjusted gross incomes for the years 2001 through 2003 were $57,041, $57,423, and 
$58,402, respectively. The owners' personal financial statement reflects a net worth of $555,980 as of April 6, 
2001, and their monthly expenses totaled $2,650 per month or $3 1,800 per year. The record does not contain any 
other evidence relevant to the petitioner's ability to pay the proffered wage. 
On appeal, counsel states that the petitioner has established its ability to pay the proffered wage of $21,528 
based on its monthly expenses of $3 1,800 which are higher than the Federal Poverty Guidelines for a family 
of seven in 2001. Counsel further alleges that the petitioner has established its ability to pay the proffered 
wage through the owners' personal assets and by adhering to the instructions provided by the Yates Memo 
and the minutes of the ESCIAILA Liaison Teleconference 
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 lawfi-11 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. 9 204.5(g)(2). h 
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 
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. 
 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). 
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 Support. 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. 
Page 4 
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 January 28, 2003 (as a substituted 
beneficiary), the beneficiary did not include the petitioner as a past or present employer. Therefore, the 
petitioner has not established that it employed the beneficiary in 2001 through 2003. In addition, 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 in 2001 
through 2003. 
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. 1 049, 1 054 (S.D.N.Y. 1 986) 
(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), afd, 703 F.2d 571 (7th Cir. 1983). 
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" 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 seven in 2001, a family of six in 2002, and a 
family of four in 2003. In 2001, the petitioner's adjusted gross income of $57,041 was $3,713 more than the 
proffered wage of $2 1,528 and the owners' expenses of $3 1,800 together. Therefore, the petitioner has 
established its ability to pay the proffered wage in 2001. In 2002, the petitioner's adjusted gross income of 
$57,423 was $4,095 more than the proffered wage of $21,528 and the owners' expenses of $31,800 together. 
Therefore, the petitioner has established its ability to pay the proffered wage in 2002. In 2003, the 
petitioner's adjusted gross income of $58,402 was $5,074 more than the proffered wage of $21,528 and the 
owners' expenses of $3 1,800 together. Therefore, the petitioner has established its ability to pay the proffered 
wage in 2003. 
Page 5 
While it is understandable that the director has reservations regarding the petitioner's ability to pay the 
proffered wage of $21,528 and still support a family of four to seven members, the monthly statement of 
expenses covers all of the necessary elements, and if understated, the petitioner's tax returns reflected 
additional funds of approximately $3,000, $4,000, and $5,000 in the pertinent years (2001 through 2003). 
After a review of the record, it is concluded that the petitioner has 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. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal 
overcome 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 not been met. 
ORDER: The appeal is sustained.