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https://www.uscis.gov/laws/admin-decisions?topic_id=1&newdir=B6+-+Skilled+Workers%2C+Professionals%2C+and+Other+Workers

https://www.uscis.gov/laws/admin-decisions?topic_id=1&newdir=B6+-+Skilled+Workers%2C+Professionals%2C+and+Other+Workers

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The Petitioner, a sole proprietor operating retail shipping stores, seeks to employ the Beneficiary as an administrative assistant.

(b)(6)U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

DATE: MAy 3 1 2013 OFFICE: NEBRASKA SERVICE CENTER FILE:

INRE:

PETITION:

Petitioner: Beneficiary:

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:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

-t.:A Ron Rosenberg Acting Chief, Administrative Appeals Office THE

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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (director). The petitioner subsequently filed a motion to reopen and motion to reconsider which were dismissed by the director as untimely filed. The petitioner then appealed this decision to the Administrative Appeals Office (AAO). Per 8 C.P.R.§ 103.5(a)(l)(i), USCIS regulations require that motions to reopen be filed within 30 days of the underlying decision, except that failure to timely file a motion to reopen may be excused in the discretion of users where it is demonstrated that the delay was reasonable and was beyond the affected party's control. On appeal, counsel asserts that the motion to reopen and the motion to reconsider were filed late for reasons beyond the petitioner's control. Counsel provides affidavits, phone records and medical records to support this assertion. The AAO finds that the late filing was indeed beyond the petitioner's control and will consider the appeal of the instant petition. The appeal will be dismissed.

The petitioner is a shipping/retail business. It seeks to employ the beneficiary permanently in the United States as an administrative assistant. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). 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. The director 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 the decision. Further elaboration of the procedural history will be made only as necessary.

As set forth in the director's denial, the single issue in this 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. § 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.P.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 either 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 ETA Form 9089, Application for Permanent Employment Certification, was accepted for processing by any office within the employment system of the DOL. See 8 C.P.R. § 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary

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had the qualifications stated on its ETA Form 9089, Application for Permanent Employment Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm'r 1977). Here, the ETA Form 9089 was accepted on December 8, 2006. The proffered wage as stated on the ETA Form 9089 is $17.16 per hour ($35,692.80 per year). The ETA Form 9089 states that the position requires 24 months of experience in the proffered position or as an administrator.

The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.1

The evidence in the record of proceeding shows that the petitioner is structured as a sole proprietorship. On the petition, the petitioner claimed to have been established in 2005 and to currently employ five workers. On the ETA Form 9089, signed by the beneficiary on May 7, 2009, the beneficiary does not claim to have worked for the petitioner.

The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA 9089 labor certification application establishes a priority date for any immigrant petition later based on the ETA 9089, 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'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and Immigration Services (USCIS) 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'l Comm'r 1967).

The record closed before the director on February 2009 with the receipt of the petitioner's response to the director's notice of intent to deny (NOID). As of that date, the petitioner's 2008 tax returns were not yet due. However, in response to a request for evidence (RFE) from the AAO, the petitioner submitted his tax returns for 2008 to 2012, along with Internal Revenue Service (IRS) Forms W -2 for the beneficiary for 2008 through 2012.

Upon review of the newly submitted tax returns, it is apparent that the sole proprietor has owned three different UPS stores:

UPS Store ~ - listed as the petitioner in the instant case Federal Employer Identification Number (FEIN)

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).

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UPS Store# No FEIN reported

UPS Store II No FEIN reported

It appears that the entity listed as the petitioner, the UPS Store # at _ is no longer owned by the sole proprietor. The sole proprietor filed a Schedule e

for this entity in 2006 through 2008 but did not file this schedule for the UPS Store # in 2009 through 2012. However, the IRS Forms W-2 submitted by the sole proprietor reflect that the beneficiary was employed by the UPS Store# , FEIN from 2008 through 2012, but the employer's address is listed as . The discrepancies between the employer's name, FEIN and address listed on the submitted IRS Forms W-2 raises doubt about the integrity of the documents submitted and the accuracy of the information reported. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Therefore, the wages reported on the IRS Forms W-2 will not be considered as evidence of the petitioner's ability to pay.

In determining the petitioner's ability to pay the proffered wage during a given period, users 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. As discussed above, in the instant case, the petitioner has not established that it paid the beneficiary the proffered wage for any year from the priority date onward.

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, users will next examine the net income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (151 eir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), ajf'd, No. 10-1517 (6th eir. filed Nov. 10, 2011). 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 eir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas THE

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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), ajf'd, 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'r 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. See Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), ajf'd, 703 F.2d 571 (ih Cir. 1983). In Ubeda, 539 F. Supp. at 650, the court concluded that it was highly unlikely that a petitioner 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 reports the following yearly expenses:

Year Yearly expenses 2006 $38,988 2007 $38,988 2008 $45,240 2009 $48,000 2010 $50,520 2011 $51,240 2012 $53,160

Yearly expenses plus proffered wage $74,680.80 $74,680.80 $80,932.80 $83,692.80 $86,212.80 $86,932.80 $88,852.80

The proprietor's tax returns reflect the following information for the following years:

Year Proprietor's adjusted gross income (AGI) 2006 $7,826 2007 $52,087 2008 $1,558 2009 $325 2010 $14,689 2011 $32,575 2012 $17,692 THE

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Therefore, the sole proprietor's adjusted gross income fails to cover the proffered wage plus the proprietor's yearly expenses for any year from 2006 through 2012.

On appeal, counsel asserts that funds held in the sole proprietor's wife's name in a Wells Fargo Bank Portfolio Management Account should also be considered when analyzing its ability to pay the proffered wage. Under the umbrella of the Portfolio Management account, the sole proprietor's wife appears to have held a checking account, savings account and several timed certificate of deposit accounts (CD). We note that the sole proprietor's income tax returns are filed jointly with his wife and that they live in California, a community property state. Therefore, we may properly consider these funds in calculating the petitioner's ability to pay.

On April 11, 2013, the AAO sent an RFE to the petitioner requesting complete bank account information for 2006 and 2007 so that the sole proprietor's ability to pay could be properly calculated. The petitioner's response included the requested bank account statements, plus bank account statements for 2008 through 2012. We first consider the sole proprietor's bank accounts in 2006. In that year, the sole proprietor must show the ability to pay $66,854.80 (yearly expenses+ proffered wage - AGI) through the bank accounts. According to the bank account statements submitted for 2006 for the sole proprietor's personal bank accounts, the sole proprietor has an average annual balance of $64,738 available. This is not sufficient to establish the sole proprietor's ability to pay the proffered wage in addition to his yearly expenses. Therefore, the petitioner has not established its ability to pay in 2006.2

Counsel further asserts that funds available in the petitioner's business bank account should be considered. The funds in the sole proprietorship's business bank account appear to be included on the Schedule C to IRS Form 1040. The net profit (or loss) is carried forward to page one of the sole proprietor's IRS Form 1040 and included in the calculation ofthe petitioner's AGI. The funds will not be considered for a second time in the analysis of the petitioner's bank accounts.

US CIS may consider the overall magnitude of the petitioner's business activities in its determination ofthe petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 I&N Dec. at 612. The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioner's prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had been included in the

2 After the initial year, the petitioner must show that its bank account balance increased by more than the amount of wages owed plus living expenses. However, when the initial year shows that the petitioner did not have sufficient funds to pay the proffered wage plus living expenses, the calculation for the later years cannot be completed because the petitioner cannot carry a negative balance forward.

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lists of the best-dressed California women. The petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, US CIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. US CIS may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage.

In the instant case, the sole proprietor's business intending to employ the beneficiary routinely lost money showing net income of ($97,796), ($51,442) and ($54,604) for 2006 through 2008 respectively. While the proprietor has been in business approximately eight years, it does not appear that he earns substantial compensation from the business. In addition, there is no evidence in the record of the historical growth of the proprietor's business, of the occurrence of any uncharacteristic business expenditures or losses from which he has since recovered, or of the proprietor's reputation within its industry. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage.

Beyond the decision of the director, it appears that the job location for the proffered position is no longer owned by the sole proprietor. As such, the sole proprietor does not intend to employ the beneficiary at this location. Even if the appeal could be otherwise sustained, the approval of the petition would be subject to automatic revocation due to the termination of your organization's business. See 8 C.F.R. § 205.1(a)(iii)(D).

The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.

ORDER: The appeal is dismissed.

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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W. , MS 2090 Washington, DC 20529-2090


DATE: OFFICE: NEBRASKA SERVICE CENTER FILE: NOV 2 6 2013

INRE: 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. § 1153(b)(3)


INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current iaw or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,

Ron Rosenberg Chief, Administrative Appeals Office

www. uscis.gov

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NON-PRECEDENT DECISION Page 2

DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (director). The petitioner subsequently filed a motion to reopen and motion to reconsider which were dismissed by the director as untimely filed. The petitioner then appealed this decision to the Administrative Appeals Office (AAO). The AAO dismissed the appeal on the merits. The matter is now before the AAO on a motion to reopen and reconsider.

The petitioner is a shipping/retail business. It seeks to employ the beneficiary permanently in the United States as an administrative assistant. As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the United States Department of Labor (DOL).

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. The director denied the petition accordingly. On May 31, 2013, the AAO affirmed the director's decision, holding that the petitioner failed to demonstrate its ability to pay the proffered wage from the priority date onwards and noted further, beyond the decision of the director, that the job offer was not bona fide in that the petitioner no longer operates the petitioning business and, therefore, has no job to offer. The petitioner then filed a motion to reopen and reconsider the AAO decision. We will accept the motion to reopen the matter based on the new information submitted. Thus, the instant motion is granted. 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. § 204.5(g)(2) states in pertinent part:

Ability of prospective employer to pay wage. Any petitiOn filed by or for an employ.t;nent-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 either in the form of copies of annual reports, federal tax returns, or audited financial statements.

As noted in the prior AAO decision, the petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the ETA Form 9089 was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d). Here, the ETA Form 9089 was accepted on December 8, 2006. The proffered wage as stated on the ETA Form 9089 is $17.16 per hour ($35,692.80 per year).

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In the AAO's May 31 , 2013 decision, we specifically reviewed the petitioner's tax returns for 2008 to 2012. The AAO also noted that the entity listed as the petitioner, the

was no longer owned by the sole proprietor and that the IRS Forms W-2 issued by the petitioner to the beneficiary from 2008 to 2012 had a different address than the petitioner although the Federal Employer Identification Number (FEIN) was the same.1 As stated in the previous decision, the discrepancy as to whether the sole proprietor continues to operate

raised doubt about the integrity of the documents submitted and the accuracy of the information reported.

With the motions to reopen and reconsider, counsel stated that the sole proprietor sold in 2008, but that he operates other stores in the same geographical area.2 Counsel

further stated that the beneficiary continued to be employed by the sole proprietor and that an oversight with the payroll company caused the store number to remain the same on the Forms W-2 instead of reflecting the actual store number where the beneficiary is employed. Counsel states that the- FEIN listed on the Forms W-2 correspond to the sole proprietor and his personal Social Security Number and submits a statement from the IRS assigning the FEIN on the Forms W-2 to the sole proprietor. In addition, the petitioner submitted its Quarterly Federal Tax Returns covering the period January 2009 through March 2013 with a business address matching the one on the beneficiary's Forms W-2. The evidence submitted resolves the discrepancy in the FEINs noted in the prior decision and demonstrates that the petitioner did issue the Forms W-2, thus these amounts may be credited to the petitioner in determining its ability to pay the proffered wage. The Forms W-2 state the following wages paid:

• The 2008 Form W-2 states that the petitioner paid the beneficiary $11,908.27. • The 2009 Form W-2 states that the petitioner paid the beneficiary $14,884.04. • The 2010 Form W-2 states that the petitioner paid the beneficiary $18,167.67. • The 2011 Form W -2 states that the petitioner paid the beneficiary $17,533.30. • The 2012 Form W-2 states that the petitioner paid the beneficiary $19,367.65.

Because the amounts paid were less than the proffered wage, the petitioner must demonstrate its ability to pay the difference between the actual wage paid and the proffered wage, which in 2008 was $23,784.53, in 2009 was $20,808.76, in 2010 was $17,525.13, in 2011 was $18,159.50, and in 2012 was $16,325.15.

1 As stated in the previous AAO decision, the sole proprietor filed a Schedule C for this entity in 2006 through 2008 but did not file this schedule for the in 2009 through 2012. However, the IRS Forms W-2 submitted by the sole proprietor reflect that the beneficiary was employed by the FEIN from 2008 through 2012, but the employer's address is listed as 2 The locations claimed by the sole proprietor are all in the Los Angeles metropolitan area. As a result, the DOL had notice of the actual geographic area of intended employment and could accurately determine the prevailing wage for the position. 8 U.S.C. § 204.5(l)(3)(i).

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The previous AAO decision also reviewed the sole proprietor's 2006 through 2012 yearly expenses and Adjusted Gross Income in determining that he did not demonstrate the ability to pay the proffered wage. On motion, counsel noted an error in the prior AAO decision concerning the average annual balance of the sole proprietor's wife's _ Account.3 As counsel states however, the average balance, when added to the sole proprietor's AGI, is still less than the amount needed for household expenses and the proffered wage, so the numerical error, when corrected, does not change the conclusion that the sole proprietor did not demonstrate his ability to pay the proffered wage. Counsel states that the remaining amount "is so miniscule ($1,400.73), it could be easily overcome." Nothing in the regulations allows USCIS to overlook a difference between funds available and the proffered wage plus household expenses of any amount. Instead, a sole proprietor and any other petitioner must demonstrate its ability to pay the full proffered wage and meet his household expenses in every year from the priority date onwards. The AAO will consider the total factual circumstances in its analysis of the totality of the circumstances section below.

Even if the petitioner had submitted evidence of additional available funds to make up the $1,400.73, the amount in the Management Account would be depleted in 2006 and the funds would not be available to pay the proffered wage in subsequent years. Specifically, to pay the proffered wage and household expenses in 2006, the petitioner would use all of the AGI and all of the $65,454.07 from the account. So the balance on the account in 2007 would not have been $76,076.46 as currently appears, but would have instead been $10,622.39.4 The petitioner's AGI in 2007 was $52,087, so the total of the account balance and AGI combined is less than the total of the proffered wage and claimed household expenses. The deficit would thus continue in other years as the account balance would have been depleted in 2006 and 2007, leaving no additional funding to make up required funding in 2008 or any further years.

The following list takes into account the evidence of funds available and wages paid to the beneficiary:

2006 No wage paid to the beneficiary Household expenses Total obligation

Petitioner's AGI PMA amount available Amount remaining to be paid

+ $35,692.80 $38,988.00 $74,680.80

$7,829.00 $65,454.07 $1,397.73

3 The AAO decision stated an average annual balance of $64,738. The corrected annual balance is $65,454.07. 4 This figure does not consider any reduction of loss of interest or valuation of assets, so the true value on the account may be less.

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2007 No wages paid to the beneficiary Household expenses Total obligation


2008 Difference between actual wage paid and proffered wage Household expenses Total obligation






2011 Difference between actual wage paid and proffered wage Household expenses Total obligation Petitioner's AGI PMA amount remaining Amount remaining to be paid

NON-PRECEDENT DECISION

$35,692.80 + $38,988.00

$74,680.80

$52,087 $0 (used in 2006) $22,593

$23,784.53 + $45,240.00

$69,024.53

$1,558.00 $0 (used in 2006) $67,466.53

$20,808.76 + $48,000.00

$68,808.76

$325.00 $0 (used in 2006) $68,483.76

$17,525.13 + $50,520.00

$68,045.13

$14,689.00 $0 (used in 2006) $53,356.13

$18,159.50 + $51,240.00

$69,399.50 $32,575.00 $0 (used in 2006) $36,824.50 TH

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2012 Difference between actual wage paid and proffered wage $16,345.15 Household expenses __,_+ __ _;,$=5=3-'-",1"""6'"""0:..:.:.0""'0"------Total obligation $69,505.15

Petitioner's AGI PMA amount remaining Amount remaining to be paid

$17,692.00 $0 (used in 2006) $51,813.15

The petitioner's AGI and PMA were insufficient in each year to demonstrate the ability to pay the proffered wage or the difference between the actual wage paid and the proffered wage and the household expenses of the sole proprietor.

Counsel suggests that by using either the sole proprietor's tax refund or property including automobiles, the proffered wage could have been met. The petitioner submitted no evidence to demonstrate that the tax refund reflected on the 2006 Form 1040 constituted additional funds not reflected in the AGI for that year.5 In addition, the petitioner submitted a statement that he owns two automobiles with a combined value of $15,000. He submitted no evidence of his actual ownership or what the cars are actually appraised for. In addition, although counsel indicates that the petitioner would be willing to sell those automobiles to meet his wage obligations, no such statement from the sole proprietor was submitted. 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'r 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm 'r 1972)). The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). As a result, these additional claims cannot form the basis of the sole proprietor' s ability to pay the proffered wage.

Counsel also states that the sole proprietor paid $20,547 in total wages in 2006 and that all or part of that amount would have been available to pay the proffered wage to the beneficiary. The purpose of the instant visa category is to provide employers with foreign workers to fill positions for which U.S. workers are unavailable. If the petitioner is, as a matter of choice, replacing U.S workers with foreign workers, such an action would be contrary to the purpose of the visa category and could invalidate the labor certification. If the petitioner replaced any worker with the beneficiary, it should submit evidence of the identity of the worker(s), wages paid, employment status, and other evidence pertaining to their replacement in any further filings.

As considered in the revious AAO decision, Counsel further asserts that funds available in the petitioner's business bank accounts should be considered. The funds in the sole

5 Tax refunds constitute money paid out of a petitioner's net income that is then returned by the government to the taxpayer upon the realization that a greater amount has been paid than the petitioner's tax obligation for the year. As a result, it does not constitute "income" as the money returned was that claimed as income elsewhere on the tax return.

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proprietorship's business bank account would appear as gross receipts listed on the Schedule C to IRS Form 1040. The net profit (or loss) is carried forward to page one of the sole proprietor's IRS Form 1040 and included in the calculation of the petitioner's AGI. The funds with the business checking account will not be considered for a second time in the analysis of the petitioner's bank accounts.

The cited by counsel as containing assets available to pay the proffered wage is a rollover IRA account. Withdrawals from a traditional IRA before age 59 V2 are considered early withdrawals. The sole proprietor submitted no evidence to demonstrate that he was age 59 Y2 or older in each relevant year or that he would be willing to take an early withdrawal from the account. If an individual takes an early withdrawal from a traditional IRA, then in addition to any regular federal income or state income tax due on the withdrawal, the individual may also be required to pay a 10% tax penalty, with certain exceptions. See 26 U.S.C. § 72(t); 26 U.S.C. § 408. So, for example, if the sole proprietor withdrew the $25 ,524.92 (average balance) from the Merrill Lynch account to meet the wage obligations and is in the 15% federal income tax bracket and the 5% state income tax bracket, the tax burden of the withdrawal would be $3,828 for federal income taxes, $1,276 for state income taxes, and $2,552 for the 10% tax penalty, totaling $7,656. Therefore, a withdrawal of the $25,524.92 would have been valued at $17,868 (total amount less the tax obligation). Therefore, taking into account the tax burden that would result from the sole proprietor's proposed early IRA withdrawals, the average annual balance in 20106 is not sufficient to cover the full proffered wage or household expenses so would be insufficient to demonstrate the ability to pay the proffered wage in that year.

Counsel further states that the value of the UPS stores purchased by the petitioner has increased over the course of the years and that the resulting equity should be considered in determining the sole proprietor's ability to pay the proffered wage. Regarding the sole proprietor's property values, a piece of real property is not a readily liquefiable asset. Further, it is unlikely that a sole proprietor would sell such a significant business asset to pay the beneficiary's wage. USCIS may reject a fact stated in the petition if it does not believe that fact to be true. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). To the extent that counsel claims that the petitioner could obtain an equity line loan against the values of those properties, the sole proprietor submitted no evidence to demonstrate that any sort of equity line loan would be available to pay the proffered wage. In addition, USCIS will give less weight to loans and debt as a means of paying salary since the debts will increase the petitioner's liabilities and will not improve its overall financial position. Although lines of credit and debt are an integral part of any business operation, USCIS must evaluate the overall financial position of a petitioner to determine whether the employer is making a realistic job offer and has the

6 The petitioner submitted statements pre-dating 2010, but counsel on motion argues the amount should be used specifically towards the sole proprietor's 2010 financial obligations. In addition, should the IRA funds be used to satisfy the financial obligations of the sole proprietor in 2009 instead, then the amount available in 2010 would be reduced accordingly. As a result, counsel ' s assertion that the IRA funds can be used in 201 0 and again in 2011 is unsustainable.

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overall financial ability to satisfy the proffered wage. See Matter of Great Wall, 16 r&N Dec. 142 (Acting Reg'! Comm'r 1977).

Finally, users may consider the overall magnitude of the petitioner's business actiVIties in its determination of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 r&N Dec. at 612. The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioner's prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere, As in Sonegawa, users may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. users may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioner' s reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence that users deems relevant to the petitioner' s ability to pay the proffered wage.

As stated in the previous AAO decision, the sole proprietor's business intending to employ the beneficiary routinely lost money showing a net loss of ($97,796), ($51,442) and ($54,604) for 2006 through 2008 respectively. While the proprietor has been in business approximately eight years, it does not appear that he earns substantial compensation from the business. On motion, the petitioner submitted evidence that he purchased additional stores and counsel states that the sole proprietor spent $42,000 remodeling one of the newly acquired stores, however, no evidence was submitted to support this assertion. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 r&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 r&N Dec. 503, 506 (BIA 1980). Counsel also cites start-up costs associated with a new store purchased in 2012. No evidence has been submitted to demonstrate those uncharacteristic expenses. Furthermore, while a onetime loss in 2012 might qualify the petitioner under the terms of Sonegawa, the petitioner has not demonstrated extraordinary circumstances for 2006 through 2011. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage.

Furthermore, as stated in the prior AAO decision and noted above, it appears that the job location for the proffered position is no longer owned by the sole proprietor. As such, the sole proprietor does not intend to employ the beneficiary at this location. Although the petitioner submitted records that it purchased additional locations in the same metropolitan area, no evidence was submitted regarding

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whether the beneficiary is currently employed at any of the locations. In addition, the petitioner did not sell the petitioning location until 2008, but purchased another location in 2007. As a result, it is unclear whether the petitioner offered the beneficiary a position at the newly purchased location or at the petitioning location. It is unclear whether an open position would have been available at any of the new locations or whether, as discussed above, the beneficiary would be displacing another worker at one of the new locations. In any further submissions, the petitioner should also demonstrate that the .beneficiary ' s employment at the newly purchased location will not displace U.S. workers and that it is a bona fide job offer.7

The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127 (BIA 2013). The petitioner has not met that burden.

ORDER: The motion to reopen is granted, the previous AAO decision is affirmed, and the petition remains denied.

7 As noted above, the purpose of the instant visa category is to provide employers with foreign workers to fill positions for which U.S. workers are unavailable. If the petitioner is, as a matter of choice, replacing U.S workers with foreign workers, such an action would be contrary to the purpose of the visa category and could invalidate the labor certification.

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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administra tive Appeals Office (AAO) 20 Massachusells Ave., N. W., MS 2090 Washington, DC 20529-2090


DATE: MAR 1 3 2014 OFFICE: NEBRASKA SERVICE CENTER FILE:


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)


INSTRUCTIONS:

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B)

within 33 days of the date of this decision. Please review the Form · I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,

~,A fO,-I{;fnl Rosenberg Chief, Administrative Appeals Office

www.uscis.gov

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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (the director) on April 13, 2009. The petitioner filed an untimely motion to reconsider on May 19, 2009, which was dismissed on October 15, 2009. The petitioner filed an appeal on November 16, 2009, which was treated as a motion by the director and dismissed. The petitioner appealed the decision to the Administrative Appeals Office (AAO). The appeal was dismissed by the AAO on 'May 31, 2013. The petitioner filed a subsequent motion with the AAO. On November 26, 2013, the AAO granted the motion, affirmed its prior decision, and denied the petition. The matter is now before the AAO on a second motion to reopen and motion to reconsider. The motions will be dismissed, the previous decisions of the AAO will be affirmed, and the petition will be denied.

On motion, counsel submits a Form I-290B, Notice of Appeal or Motion, a brief, 2008 through 2012 Internal Revenue Service (IRS) Forms W-2, Wage and Tax Statements, for employees including the instant beneficiary, information and financial documents on the sole proprietor, and copies of documentation submitted in previous proceedings. The AAO finds that the petitioner has not filed a proper motion to reopen. The regulation at 8 C.P.R. § 103.5(a)(2) states, in pertinent part, that "[a] motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." Based on the plain meaning of "new," a new fact is found to be evidence that was not available and could not have been discovered or presented in the previous proceeding.1

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On motion, counsel states that the petltwner submits additional documentation to establish the petitioner's ability to pay the proffered wage.

On February 5, 2009, the director issued a request for evidence (RFE), instructing the petitioner to submit evidence of the petitioner's ability to pay the proffered wage, including information on household expenses and personal assets of the sole proprietor and his spouse. On April 11, 2013, the AAO issued a notice of intent to deny (NOID) instructing the petitioner to submit evidence of the petitioner's ability to pay the proffered wage, including information on household expenses and personal assets of the sole proprietor and his spouse. The director's decisions and the AAO's following decisions all stated that the petitioner failed to submit sufficient evidence of the petitioner's ability to pay the proffered wage.

The purpose of an RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.P.R. § 103.2(b )(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. § 103.2(b )(14). As in the present matter, where a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal or motion. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA

1The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found, or learned <new evidence> .... " Webster's II New Riverside University Dictionary 792 (1984)(emphasis in original).

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1988). If the petitiOner had wanted the submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence or the AAO's NOID. !d. Under the circumstances, the AAO need not, and does not, consider the sufficiency of the evidence submitted on motion as it does not constitute "new" evidence.

Nor has the petitioner filed a proper motion to reconsider. The regulation at 8 C.F.R. § 103.5(a)(3) states, in pertinent part, that "[a] motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or [USCIS] policy. A motion to reconsider ... must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision." The motion was not accompanied by arguments based on precedent decisions to establish that the decision was based on an incorrect application of law or policy, and does not establish that the decision was incorrect based on the evidence of record at the time of the initial decision. While counsel states reasons for the motion, the petitioner does not cite any precedent decisions or other evidence not already addressed by the AAO to establish that the decision was based on an incorrect application of law or Service policy based on the evidence of record at the time of the initial decision.2 Accordingly, the petitioner's motion to reconsider will be dismissed.

Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S. 314,323 (1992)(citing/NS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden. " INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that burden. The motion to reopen will be dismissed.

Even if the petitioner were able to meet the requirements of a motion and establish that it had the ability to pay the proffered wage, it has not established that the beneficiary meets the minimum requirements of the labor certification.

A petitioner must establish that the beneficiary possessed all the education, training, and experience specified on the labor certification by the petition's priority date. 8 C.F.R. §§ 103.2(b)(l),(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm 'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the beneficiary's qualifications, U.S. Citizenship and Immigration Services (USCIS) must examine the job offer portion of the labor certification to determine the minimum job requirements of the offered position. USCIS may not

2 The AAO agrees with counsel that it erred in stating that the petitioner's shortfall in 2006 was $1,397.73, when the shortfall was $1,400.73 (due to a transposition of the sole proprietor's adjusted gross income (AGI) as $7,829.00, rather than $7,826.00). The AAO also agrees with counsel that it erred in stating that the petitioner's shortfall in 2007 was $22,593.00, when the shortfall was $11,971.41 (due to failure of inclusion of a maximum amount of $10,622.39 residual in the sole proprietor's management account). However, in each relevant year there was a shortfall and counsel has not established that the AAO's decision was based on an incorrect application of law or policy or that the decision, finding that there were shortfalls in the petitioner's ability to pay in each relevant year, was incorrect based on the evidence of record at the time of the decision.

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ignore a term of the labor certification, nor may it impose additional requirements. See K.R.K. irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1, 3 (1st Cir. 1981).

In the instant case, the labor certification states that the offered position requires a U.S. high school diploma or the foreign equivalent, plus 24 months of experience in the job offered or as an administrator. The labor certification states that the beneficiary holds a high school diploma in Romania, conferred in 1991.3 The labor certification also states that the beneficiary qualifies for the offered position based on full-time experience as an administrator with in California, from March 15, 2003 until December 8, 2006, the date on which the labor certification was submitted. The beneficiary signed the labor certification under a declaration that the contents are true and correct under penalty of perjury.

The record lacks evidence that the beneficiary obtained the foreign equivalent of a U.S . high school diploma. The record also lacks an expert evaluation of the beneficiary's foreign educational credentials, showing that he obtained the equivalent of a U.S. high school degree before the petition's priority date of December 8, 2006. The record therefore does not establish that the beneficiary meets the educational requirement for the offered position.

The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(A) states:

Any requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien.

The record contains an August 8, 2007 experience letter from owner, on California, letterhead stating that the company employed the

beneficiary as an administrator from March 2003 until the date on which the letter was signed . However, the address and phone number on the letter is inconsistent with public information regarding is located at

California not at •· California ' listed on the letter. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

The letter describes the beneficiary's job duties as the administrator of a nursing home. Nursing home administrators in California require state licensure. Cal. Health & Safety Code § 1416. Attached please find a copy of the applicable regulations. Online records of the California Department of Public Health do not indicate that the state ever licensed the beneficiary as a nursing home administrator. See "L & C Certification Search Page," Cal. Dep't of Pub. Health, at

3 The ETA Form 9089 does not state the name or address of the school that issued the beneficiary's high school diploma.

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http://www.apps.cdph.ca.gov/cvl/SearchPage.aspx (accessed February 4, 2014). The beneficiary's apparent lack of required licensure casts doubt on his claimed qualifying experience as a nursing home administrator. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Matter ofHo, 19 I&N Dec. at 591-92.

Additionally, a labor certification remains valid only for the particular job opportunity, the alien for whom the certification was granted, and the area of intended employment stated on the ETA Form 9089. 20 C.F.R. § 656.30(c)(2); see also Sunoco Energy Dev. Co., 17 I&N Dec. 283 (Reg'l Comm'r 1979) (affirming a petition's denial where the petitioner intended to employ the beneficiary outside the area of intended employment specified on the labor certification); Matter of Izdebska, 12 I&N Dec. 54 (Reg'l Comm'r 1966) (upholding a petition's denial where the petitioner did not intend to employ the beneficiary as a live-in domestic worker as stated on the labor certification). The term "area of intended employment" means "the area within normal commuting distance of the place (address) of intended employment." 20 C.F.R. § 656.3. Any place within the worksite's Metropolitan Statistical Area (MSA) is considered within normal commuting distance of the place of intended employment. !d.

As discussed in the AAO's previous decisions, the record shows that the petitioner originally offered the beneficiary the position of administrative assistant at its California location. However, the record indicates that the petitioner sold that location in 2008 and has not owned or operated it since. On motion, counsel asserts that, after the sale of the location, the petitioner continued to offer the beneficiary the same position at its location in

California, which is within the same MSA as ' Counsel states that the instant motion includes "Petitioner's Declaration." However, the motion of record does not contain a declaration from the petitioner.

The record does not demonstrate the petitioner's continued intention to permanently employ the beneficiary in the offered position and in the area of intended employment specified on the labor certification. Counsel's assertion does not constitute evidence. See Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980); see also Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190, 193 (Reg' 1 Comm ' r 1972)) (going on record without supporting documentary evidence is insufficient to meet the standard of proof in these proceedings).

Finally, online California records state that the beneficiary has been a licensed registered nurse since 2009. The beneficiary's licensure in an umelated occupation casts further doubt on the petitioner's intention to permanently employ the beneficiary in the offered position. See Matter of Ho, 19 l&N Dec. at 591-92.

The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not sustained that burden. 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable requirements shall be dismissed." Accordingly, the motions will be dismissed, the proceedings will not be reopened or reconsidered and the previous decisions of the director and the AAO will not be disturbed. THE

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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090


DATE: JUN 2 0 2014 OFFICE: NEBRASKA SERVICE CENTER FILE:


PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3) ofthe Immigration and Nationality Act, 8 U.S .C. § 1153(b)(3)


INSTRUCTIONS:

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,


www.uscis.gov

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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center (the director) on April 13, 2009. The petitioner filed an untimely motion to reconsider on May 19, 2009, which the director rejected on October 15, 2009. The petitioner filed an appeal on November 16, 2009, which the director treated as a motion and dismissed. The petitioner appealed the decision to the Administrative Appeals Office (AAO). On May 31, 2013 we dismissed the appeal. The petitioner filed a subsequent motion. On November 26, 2013, we granted the motion, affirmed the prior decision, and denied the petition. The petitioner filed a second motion which we dismissed on March 13, 2014. The matter is now before us on a third motion to reopen and motion to reconsider. The motions will be dismissed pursuant to 8 C.F.R. §§ 103.5(a)(1)(i) and 103.5(a)(4).

The director found that the petitioner had not established the ability to pay the proffered wage. On appeal, we sent a notice of intent to dismiss and request for evidence, seeking additional evidence of the petitioner's ability to pay. Upon consideration of the petitioner's response, we dismissed the appeal, finding that the petitioner had not established the ability to pay the proffered wage. We also indicated that the petition may be moot, as the petitioner no longer owned the location of the store where the beneficiary was to be employed. On motion, upon further review and consideration, we found that the record did not establish the petitioner's ability to pay the proffered wage. We again found no evidence that the petitioner intended to employ the beneficiary at an owned location. We affirmed our previous decision. We dismissed the petitioner's second motion for failure to establish the requirements of a motion to reopen or a motion to reconsider. In that decision we also found beyond the decision of the director that the beneficiary was not qualified to perform the duties of the position as of the priority date. The petitioner has filed a third motion to reopen and reconsider

United States Citizenship and Immigration Services (USCIS) regulations require that motions to reconsider be filed within 30 days of the underlying decision. 8 C.F.R. § 103.5(a)(1)(i). The motion to reconsider was not filed within the required time period and must be dismissed. Similarly, USCIS regulations require that motions to reopen be filed within 30 days of the underlying decision, except that failure to timely file a motion to reopen may be excused in the discretion of USCIS where it is demonstrated that the delay was reasonable and was beyond the affected party's control. /d. In this matter, the motion was filed on April 16, 2014, 34 days after the AAO's March 13, 2014 decision. The record indicates that the AAO's decision was mailed to both the petitioner at its business address and to its counsel of record. As the record does not establish that the failure to file the motion within 30 days of the decision was reasonable and beyond the affected party's control, the motion is untimely and must be dismissed for that reason.

In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not sustained that burden. Accordingly, the motions will be dismissed, the proceedings will not be reopened or reconsidered, and the previous decisions of the director and the AAO will not be disturbed.

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U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090


DATE: AUG 2 0 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: .


PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3)(A) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3)(A)


INSTRUCTIONS:

Enclosed please find the decision ofthe Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,

Jd41v fo1L-


www. uscis.gov

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NON-PRECEDENTDEC§ION Page 2

DISCUSSION: The Director, Nebraska Service Center (Director), denied the immigrant visa petition and dismissed the petitioner's motion to reopen as untimely. The Director treated the petitioner's appeal from the motion's dismissal as a motion and dismissed it. The Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. We granted the petitioner's first motion to reopen and reconsider, and affirmed our appellate decision. We dismissed the petitioner's second and third motions to reopen and reconsider. The matter is now before us on the petitioner's most recent motion to reopen. The motion will be granted, our dismissal of the petitioner's third motion to reopen and reconsider will be affirmed, our prior decisions will remain unchanged, and the petition will remain denied.

The petitioner operates a retail shipping business. It seeks to employ the beneficiary permanently in the United States as an administrative assistant. The petition requests classification of the beneficiary as a skilled worker under section 203(b)(3)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3)(A)(i).

The Director concluded that the petitioner did not establish its continuing ability to pay the proffered wage from the petition's priority date onward. Accordingly, he denied the petition on April 13, 2009.

We dismissed the petitioner's appeal on the same ground on May 31, 2013. We also concluded that the petitioner did not establish a continuing intention to employ the beneficiary in the offered position. On March 13, 2014, we dismissed the petitioner's third motion to reopen and reconsider as untimely.

In the instant motion, the petitioner asks us to excuse the untimely filing of its third motion to reopen and reconsider. It asserts that the one-day delay in the motion's filing was reasonable and beyond its control. We will grant the motion because it is timely and states new facts supported by affidavits and other documentary evidence. See 8 C.F.R. § 103.5(a)(2).

A motion to reopen or reconsider must be filed within 30 days of the underlying decision. 8 C.F.R. § 103.5(a)(l)(i). If the decision was served by ordinary mail, as in the instant case, an additional three days is added to the filing deadline. 8 C.F.R. § 103.5a(b). USCIS may excuse the untimely filing of a motion to reopen "where it is demonstrated that the delay was reasonable and was beyond the control ofthe applicant or petitioner." 8 C.F.R. § 103.5(a)(1)(i).

In the instant case, the petitioner attributes the delay in filing its third motion to reopen and reconsider to "misleading information" on the website of United States Citizenship and Immigration Services (USCIS). In a sworn declaration, counsel states that she noticed an address stated on the USCIS website at which the agency's "lockbox" office in Phoenix, Arizona accepts courier deliveries. In reliance on this information, counsel stated that she arranged for the motion to be hand-delivered to the address on April 15, 2014, the 33rd and final day of the period in which to file a motion to reopen and reconsider our March 13, 2014 decision. THE

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The petitioner submits evidence that the lockbox and another USCIS office in Phoenix rejected a messenger's attempts to hand-deliver the motion on April 15. The evidence shows that, after the users offices rejected the filings, the messenger sent the motion by courier to the lockbox, which received it on April 16, the 34th day after our decision. The petitioner also submits April 16 printouts of pages on the USCIS website. One page states a lockbox address in Phoenix "[f]or Express mail and courier deliveries."

We do not find the petitioner's delay in filing its third motion to reopen and reconsider to be reasonable and beyond its control. The information on the USCIS website page upon which counsel relies does not state that the Phoenix lockbox accepts hand-deliveries. Rather, the page states that the address is "for Express mail and courier deliveries." Similarly, the AAO's March 13, 2014 decision, the Instructions to Form I-290B, Notice of Appeal or Motion, and the regulations do not indicate that a petitioner may hand deliver a motion to USCIS. Counsel therefore unreasonably assumed that officials at the lockbox address would accept its third motion by hand delivery on the final day of the filing deadline.

Another USCIS website page submitted by the petitioner is entitled "Tips for Filing Forms with USCIS." This page states that additional instructions about filing forms is available by calling USCIS's National Customer Service Center or by scheduling an "InfoPass" appointment at a local USCIS office. See USCIS, http://www.uscis.gov/forms-filing-tips (accessed Aug. 4, 2014). It is unclear whether counsel called the customer service center or scheduled an InfoPass appointment before the deadline's last day to ascertain whether the lockbox would accept a hand delivery. Therefore, we do not find that the motion's delay was beyond the petitioner's control.

Motions to reopen or reconsider immigration proceedings are disfavored because of a strong public interest in promptly ending litigation. INS v. Abudu, 485 U.S. 94, 107 (1988). A movant seeking to reopen a proceeding bears a "heavy burden." !d. at 110; see also Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013) (stating that a petitioner in visa petition proceedings bears the burden of establishing eligibility for the immigration benefit sought). The petitioner in the instant case has not met that burden. Accordingly, the motion will be dismissed, the proceedings will not be reopened, and our previous decisions will not be disturbed.

ORDER: The motion is dismissed.

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lJ.S. Department of Homeland. :Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave. , N .W., MS 2090 Washington, DC 20529-2090


DATE: NOV 1 8 2014 OFFICE: NEBRASKA SERVICE CENTER FILE:

TNRE: Petitioner: Beneficiary:

PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3)(A) ofthe Immigration and Nationality Act, 8 U.S .C. § 1153(b)(3)(A)


INSTRUCTIONS:

This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at

http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5 . Do not file a motion directly with the AAO.

Thank you,

~·t/( f1,-Ron Rosenberg Chief, Administrative Appeals Office

www.uscis.gov

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DISCUSSION: The Director, Nebraska Service Center (the director), denied the immigrant visa petition and dismissed the petitioner's motion to reopen as untimely. The Director treated the petitioner's appeal from the motion's dismissal as a motion and dismissed it. The Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. We granted the petitioner's first motion to reopen and reconsider, and affirmed our appellate decision. We dismissed the petitioner' s second, third and fourth motions to reopen and reconsider. The matter is now before us on the petitioner's most recent motion to reopen and motion to reconsider. The motions will be dismissed, our prior decisions will be affirmed, and the petition will remain denied.

The petitioner operates a retail shipping business. It seeks to employ the beneficiary permanently in the United States as an administrative assistant. The petition requests classification ofthe beneficiary as a skilled worker under section 203(b)(3)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3)(A)(i). The director concluded that the petitioner did not establish its continuing ability to pay the proffered wage from the petition's priority date onward. Accordingly, he denied the petition on April 13, 2009.

We dismissed the petitioner's appeal on the same ground on May 31, 2013. We also concluded that the petitioner did not establish a continuing intention to employ the beneficiary in the offered position. On August 20, 2014, we granted the petitioner's fourth motion to reopen and reconsider, affirmed our dismissal of the petitioner's third motion to reopen and reconsider and affirmed our prior decisions.

We conduct appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). We consider all pertinent evidence in the record, including new evidence properly submitted upon motion. On motion, counsel submits a brief, a declaration from the beneficiary and a declaration from counsel.

8 C.F.R. § 1 03.5(a) provides, in pertinent part:

(3) Requirements for motion to reconsider. A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

On motion counsel contends that the delay in filing was reasonable and beyond control of the petitioner and attorney of record. Counsel contends that she reasonably expected that the Phoenix · lockbox would accept a filing made by a messenger service because the address was listed as accepting "Express mail and courier deliveries." In support of her contention, counsel cites to businessdictionary.com which defines "courier service" as meaning "fast, door to door, local or international, pickup and delivery service for high-value goods or urgently required documents." 1

1 It is noted that the "messenger service" utilized by counsel is not a courier service but rather a service processor. See www.

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The term "courier delivery" is generally accepted as referring to overnight or same day delivery of documents by services such as · ·· See www.l Moreover, lockboxes and other government addresses do not accept hand delivery of documents due to mail screening requirements, unless instructions specifically state that hand-deliveries are accepted. Furthermore, as with any entity which does not accept the "mailbox rule," receipt by any other entity such as a courier service does not suffice to show filing of an appeal or motion and failure of a courier or overnight delivery service does not excuse filing deadlines.

8 C.F.R. § 1 03.5(a) provides, in pertinent part:

(2) Requirements for motion to reopen. A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence ...

Counsel bases the motion to reopen on ineffective assistance of counsel. Any appeal or motion based upon a claim of ineffective assistance of counsel requires:

(1) that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard,

(2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and

(3) that the appeal or motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not why not.

Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1 st Cir. 1988).

In support of this assertion, counsel submits a declaration from the petitioner and herself stating that the petitioner and counsel entered into an agreement that counsel would timely file a motion to reopen our March 13, 2014 decision and that counsel failed to timely file the motion because the hand delivered motion was not accepted at the lockbox. The petitioner states that he did not chose to file a complaint against counsel for ineffective assistance because counsel assured the petitioner that she would take the necessary steps to correct the mistake. However, counsel fails to establish that the petitioner was prejudiced by her performance as a representative. See Matter of Lozada at 638 (one must show, moreover, that he was prejudiced by his representative's performance). In establishing that counsel's failure to timely file the third motion we look to whether the documents and arguments submitted by counsel in filing the third motion to reopen to reopen and motion to reconsider were sufficient to overcome our March 13, 2014.

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certification and to establish the petitioner's ability to pay the proffered wage. Counsel also contended that our decision was based on an incorrect application of Matter of Soriano, 19 I&N Dec. 764 (BIA 1988) when we failed to accept additional documentation regarding the petitioner's ability to pay the proffered wage on motion.

As discussed in our March 13, 2014 decision, the director issued a request for evidence (RFE), instructing the petitioner to submit evidence of the petitioner's ability to pay the proffered wage, including information on household expenses and personal assets of the sole proprietor and his spouse. We also issued a notice of intent to deny (NOID) instructing the petitioner to submit evidence of the petitioner' s ability to pay the proffered wage, including information on household expenses and personal assets of the sole proprietor and his spouse. The director's decisions and our denial of the appeal and dismissal of the first motion all stated that the petitioner failed to submit sufficient evidence of the petitioner's ability to pay the proffered wage, including information on household expenses and personal assets of the sole proprietor and his spouse.

Upon filing the second motion to reopen, the petitioner sought to submit additional documents regarding the petitioner's ability to pay the proffered wage, including information on household expenses and personal assets of the sole proprietor and his spouse. Our March 13, 2014 decision found that the petitioner had been put on notice of the deficiencies in the evidence regarding the petitioner's ability to pay the proffered wage and had been given four other opportunities to respond to those deficiencies. We held that we would not accept the evidence offered on the second motion regarding the petitioner' s ability to pay the proffered wage as ample opportunity had been provided to the petitioner to rectify the deficiencies regarding the ability to pay. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence, our NOID or during any of the other motions and appeal it had previously filed. !d.

On the third motion counsel again submitted additional documentation to establish the petitioner's ability to pay the proffered wage. As discussed above, under the circumstances, we need not, and do not, consider the sufficiency of the evidence submitted on the third motion regarding the petitioner' s ability to pay the proffered wage as it does not constitute "new" evidence.

Alternatively, counsel contended that Matter of Soriano dictated that we should have remanded the original appeal decision to the director because we solicited copies of the petitioner's 2008 tax returns, an updated list of monthly household expenses and missing 2007 bank statements, documents which were submitted for the first time on appeal. However, unlike the Board of Immigration Appeals (BIA) we conduct appellate review of facts on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).2 Further, counsel had been given an additional opportunity to overcome any deficiencies found in the petitioner's 2008 tax returns, updated list of monthly

2 The BIA applies the "clearly erroneous" standard to review all factual determinations, including findings as to credibility of testimony. 8 C.F.R. § 3.1 (d)(3); see Matter ofS-H- , 23 I&N Dec. 462, 464 (BIA 2002).

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household expenses and missing 2007 bank statements when we issued our November 26, 2013 decision in response to the petitioner's first motion before our office.

In the third motion, counsel did not establish that our March 13, 2014 decision was based on an incorrect application of law or policy or that the decision was incorrectly based on the evidence of record at the time of the decision. Accordingly, even if it had been timely filed we would have dismissed the third motion to reopen and motion to reconsider. Thus, the petitioner was not prejudiced by counsel ' s failure to timely file the third motion.

In our March 13, 2014 decision we noted that, even if the petitioner were able to meet the requirements of a motion and established that it had the ability to pay the proffered wage, it had not established that the beneficiary meets the minimum requirements of the labor certification. We also noted that there were additional concerns regarding the location of the proffered position and whether there was a permanent job offer. In response to our March 13, 2014 decision, counsel contended that these issues had not been previously raised by the director or in our NOID and submitted evidence of the beneficiary's education and documentation to clarify the inconsistencies we noted in the beneficiary's qualifying experience letter. Counsel requested that the case be remanded to the director for adjudication because the petitioner had provided independent, objective evidence to resolve the inconsistencies. However, our March 13, 2014 decision was based on failure to meet the requirements of a motion to reopen or a motion reconsider regarding our November 26, 2013 decision finding that the petitioner had failed to establish its ability to pay the proffered wage. The statements made regarding the beneficiary's qualifications and permanent job offer did not form the basis of our March 13, 2014 decision to dismiss the second motion to reopen and motion to reconsider. As indicated in our previous decisions such statements are only issued as a notice to the petitioner of issues which need to be addressed beyond the decision of the director if the petitioner were to file another Form I -140 immigrant petition based on the instant labor certification or file a motion to reopen or motion to reconsider our decision. As discussed above, the petitioner has failed to establish that its response to our March 13, 2014 decision meets the requirements of a motion to reopen or motion to reconsider.3

Accordingly, the motions will be dismissed, the proceedings will not be reopened or reconsidered and the previous decisions of the director and the AAO will not be disturbed.

ORDER: The motions are dismissed.

3 We withdraw our statements regarding the beneficiary's qualifying education and experience as the petitioner has provided documentation to establish the beneficiary's possession of a High School diploma and resolved the inconsistencies in the beneficiary's qualifying experience letter.

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DATE: JAN 3 0 2015

IN RE: Petitioner:

Beneficiary:

lJ.S. Department of Homeland Security U.S. Citizenship and Immigration Services

Administrative Appeals Office (AAO)

20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090


OFFICE: NEBRASKA SERVICE CENTER FrLE:

PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section

203(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3)(A)


INSTRUCTIONS:


This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency

policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to

your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B)

within 33 days of the date of this decision. Please review the Form I-290B instructions at

http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements.

See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,

��/-r;:, Ron Rosenberg

Chief, Administrative Appeals Office

www.uscis.gov

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DISCUSSION: The Director, Nebraska Service Center, (director) denied the immigrant visa petition and dismissed the petitioner's motion to reopen as untimely. The director treated the petitioner's appeal from the motion's dismissal as a motion and dismissed it. The Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. We granted the petitioner's first motion to reopen and reconsider, and affirmed our appellate decision. We dismissed the petitioner's second, third, and fourth motions to reopen and reconsider. The matter is again before us on motion to reopen and motion to reconsider. The case will be reconsidered, our prior decisions will be affirmed, and the petition will remain denied.

The petitioner operates a retail shipping business. It seeks to employ the beneficiary permanently in the United States as an administrative assistant. The petition requests classification of the beneficiary as a skilled worker or professional under section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3). The director concluded that the petitioner did not establish its continuing ability to pay the proffered wage from the petition's priority date onward. Accordingly, he denied the petition on April 13, 2009.

We affirmed the director's decision and dismissed the petitioner's appeal on May 31, 2013. We also concluded that the petitioner did not establish a continuing intention to employ the beneficiary at the stated location. On November 26, 2013, we reopened the matter on the petitioner's motion. After a thorough discussion of the record we affirmed our previous decision and again dismissed the appeal. The petitioner filed a second motion to reopen and reconsider and on March 13, 2014, we dismissed the motion because it did not satisfy the requirements of a motion to reopen or the requriements of a motion to reconsider.1 The petitioner filed a third motion to reopen and motion to reconsider, which we dismissed as untimely on June 20, 2014. On a fourth motion to reopen and motion to reconsider, the petitioner asserted that the delay in the filing of the previous motion was reasonable and beyond its control. We denied the fourth motion to reopen and motion to reconsider on August 20, 2014, because we determined that the petitioner had failed to establish that its delay in filing the third motion was beyond its control.

On a fifth motion to reopen and motion to reconsider the petitioner asserts that we erred in not accepting new evidence submitted with its second motion to reopen and motion to reconsider. The motion to reconsider qualifies for consideration under 8 C.F.R. § 103.5(a)(3) because the petitioner's counsel asserts that we made an erroneous decision through misapplication of law or policy?

1 ln addition, we noted that the petitioner had not established that the petitioner satisfied the educational requirements stated in the labor certification. We further noted that the sole-proprietor petitioner sold the business in 2008 and we questioned the petitioner's continuing intent to employ the beneficiary at the location identified on the labor certification. Finally, we noted that the beneficiary had been licensed in California as a registered nurse since 2009 and questioned the beneficiary's continuing intent to be employed in the job offered on the labor certification. 2 The regulations at 8 C.F.R. § 103.5(a)(2) state, in pertinent part, that "[a] motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." In this matter, the petitioner presented no new facts or evidence on motion that could be considered a proper basis for a motion to reopen. Therefore, the filing will not be considered a proper basis for a motion to reopen. THE

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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. Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(3)(A)(ii), provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees and are members of the professions.


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 either 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 ETA Form 9089 was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d). Here, the ETA Form 9089 was accepted on December 8, 2006. The proffered wage as stated on the ETA Form 9089 is $17.16 per hour ($35,692.80 per year). The submitted Internal Revenue Service (IRS) Forms W-2 state the following wages were paid to the beneficiarl by the petitioner:

Wages Paid 2006 None submitted 2007 None submitted 2008 $11,908.27 2009 $14,884.04 2010 $18,167.67 2011 $17,533.30 2012 $19,367.65

The petitioner did not establish that it paid the beneficiary any wages in 2006 or 2007, but it did establish that it paid partial wages from 2008 through 2012. As the proffered wage is $35,692.80 per year, the petitioner must establish that it can pay the difference between the proffered wage and the wages actually paid to the beneficiary.

3 The petitioner indicated that the beneficiary will replace several part-time workers. The record does not, however, name these workers, state their wages, verify their employment, or provide evidence that the petitioner has replaced or will replace them with the beneficiary. In general, wages already paid to others are not 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.

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The petitioner is a sole proprietorship, a business in which one person operates the business in his or her personal capacity. See 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 1 040) 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), affd, 703 F.2d 571 (7th 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's tax returns state that he supported a family of two in 2006 and 2007, a family of three in 2008 and 2009, and a family of four since 2010.

Difference between Claimed Total Sole proprietor's Annual proffered wage and Annual obligation Adjusted Gross Shortfall

wages paid to Household Income (AGI) beneficiary Expenses

2006 $35,692.80 $38,988.00 $74,680.80 $7,829.00 $66,851.80 2007 $35,692.80 $38,988.00 $74,680.80 $52,087.00 $22,593.80 2008 $23,784.53 $45,240.00 $69,024.53 $1,558.00 $67,466.53 2009 $20,808.76 $48,000.00 $68,808.76 $325.00 $68,483.76 2010 $17,525.13 $50,520.00 $68,045.13 $14,689.00 $53,356.13 2011 $18,159.50 $51,240.00 $69,399.50 $32,575.00 $36,824.50 2012 $16,325.15 $53,160.00 $69,485.15 $17,692.00 $51,793.15

The petitioner submitted documentation regarding his investment portfolio and counsel asserts on motion that the correct balance in that portfolio is $65,454.07, not $64,738 as we had calculated in a previous decision. Nevertheless, the shortfall in the petitioner's adjusted gross income (AGI) (as compared to the total obligation as reflected in the chart above) would have depleted the funds in the investment account in 2006 and investment funds would not be available to make up the shortfall in subsequent years. Specifically, to pay the proffered wage and household expenses in 2006, the petitioner would have needed to use all of the AGI and all of the $65,454.07 from the investment account. Accordingly, the balance on the account in 2007 would not have been $76,076.46 as the THE

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statement suggests, but would instead have been $10,622.39.4 The petitioner's AGI in 2007 was $52,087.00, so the total of the investment account balance and AGI combined is less than the total of the proffered wage and claimed household expenses. The deficit would thus continue in subsequent years as the account balance would have been depleted in 2006 and 2007, leaving no additional resources to make up required funding in 2008 or any further years.

The petitioner has asserted that amounts claimed as depreciation on its taxes "would have been available as cash flow" and should have been considered in the determination of its ability to pay the proffered wage. With respect to depreciation, the court in River Street Donuts, LLC v. Napolitano,

558 F.3d 111 (1st Cir. 2009), noted:

The AAO recognized that a depreciation deduction is a systematic allocation of the cost of a tangible long-term asset and does not represent a specific cash expenditure during the year claimed. Furthermore, the AAO indicated that the allocation of the depreciation of a long-term asset could be spread out over the years or concentrated into a few depending on the petitioner's choice of accounting and depreciation methods. Nonetheless, the AAO explained that depreciation represents an actual cost of doing business, which could represent either the diminution in value of buildings and equipment or the accumulation of funds necessary to replace perishable equipment and buildings. Accordingly, the AAO stressed that even though amounts deducted for depreciation do not represent current use of cash, neither does it represent amounts available to pay wages.

We find that the AAO has a rational explanation for its policy of not adding depreciation back to net income. Namely, that the amount spent on a long term tangible asset is a "real" expense.

River Street Donuts at 118. "[USCIS] and judicial precedent support the use of tax returns and the net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these figures should be revised by the court by adding back depreciation is without suppm1." Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 537 (N.D. Texas 1989) (emphasis added). Accordingly, these funds will not be considered in the determination of the petitioner's ability to pay the proffered wage.

The petitioner emphasized that it could have used loans to pay the proffered wage. However, as stated in our previous decisions, USCIS will give less weight to loans and debt as a means of paying salary since the debts will increase the petitioner's liabilities and will not improve its overall financial position. Although lines of credit and debt are an integral part of any business operation, users must evaluate the overall financial position of a petitioner to determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy the proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). Counsel contests our

4 This figure does not consider any reduction of loss of interest or valuation of assets, so the true value on the account may be less.

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conclusion and asserts that "paying the salary of an employee who produces value for the business by providing essential services would in fact improve the overall financial position of the Petitioner." However, it is noted that the shortfalls detailed above all occurred with the beneficiary in place as an employee since 2008. Counsel did not explain how the beneficiary could have produced more "value for the business" beyond what he was already producing there while the shortfalls were happening.

The petitioner asserts that all of his assets should be taken into account and has proposed numerous alternative ways of overcoming the shortfalls in AGI, as compared to the total obligation of his claimed household living expenses and the difference between the proffered wage and the wages actually paid to the beneficiary since the priority date. The sole-proprietor petitioner cited his bank account balances (the petitioner claimed average account balances of $4,503.09 in 2006) and stated that he would have been willing to sell his automobile and motorcycle (total claimed value of $8,940), withdraw (or take a loan against) his 401(k) account (claimed value of $33,988.01), and access his home equity (claimed value of $46,143.43) in order to overcome the shortfall between AGI and the sole-proprietor's total obligations. The petitioner also pointed out that it paid down the principal loans on two stores in 2008 by a total of $30,000 and asserted that that money could have been used to pay the proffered wage.

We are not persuaded that the sole-proprietor petitioner would have emptied his bank accounts, sold his vehicles, emptied his retirement account, and depleted his home equity in order to pay the proffered wage. users may reject a fact stated in the petition if it does not believe that fact to be true. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. INS, 876 F.2d 1218, 1220 (51h Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Moreover, even if we believed that the sole-proprietor petitioner would have used all of the claimed resources to pay the proffered wage, it is noted that the claimed resources total $123,574.53 and would not have been sufficient to overcome the total shortfall of $367,369.67 for all relevant years.

users may consider the overall magnitude of the petitioner's business activities in its determination

of the petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 I&N Dec. at 612. The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioner's prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, USCIS may, at its THE

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discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. users may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioner's business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence that users deems relevant to the petitioner's ability to pay the proffered wage.

Unlike the petitioner in Sonegawa, the petitioner in the current case has not established the historical growth of its business or its reputation within its industry. In fact, the current petitioner claimed a significant decrease (more than 50% decrease, from $118,779 in 2007 to $57,794 in 2008) in gross income from 2007 to 2008, and almost no gain from 2009 through 2012. Nor has the current petitioner claimed the occurrence of any uncharacteristic business expenditures or losses during the years in question. 5 The petitioner's revenues, payroll, and other financial information contained on its tax returns are not sufficient to establish its ability to pay the proffered wage despite its shortfall in AGI. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage from the priority date onwards.

Furthermore, as we stated in our prior decision and as noted above, it appears that the job location for the proffered position is no longer owned by the sole proprietor. As such, the sole proprietor does not intend to employ the beneficiary at this location. Although the petitioner submitted records that it purchased additional locations in the same metropolitan area, no evidence was submitted regarding whether the beneficiary is currently employed at any of the locations. In addition, the petitioner did not indicate on the labor certification that the offered job would involve travel or work at multiple locations. This issue must be addressed in any further filings.

The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.e. § 1361; Matter of Otiende, 26 I&N Dec. 127 (BIA 2013). The petitioner has not met that burden.

ORDER: The motion to reconsider is granted, our previous decisions are affirmed, and the petition remains denied. ·

5 The petitioner asserted that money spent on remodeling in 20 II should have been considered in the determination of its ability to pay the proffered wage. However, while the petitioner claimed to have spent $47,875.49 for remodeling, no evidence has been submitted to substantiate that claim. Furthermore, even if the petitioner did document that expense, it is noted that these funds would have been in sufficient to overcome the total shortfall of $367,369.67. Unlike the petitioner in Sonegawa, the current petitioner did not suffer uncharacteristic setbacks in a single year, but has experienced shortfalls in every year since the priority date.

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DATE: JUN 0 8 2015

IN RE: Petitioner: Beneficiary:

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services

Administrative Appeals Office (AAO)

20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090


OFFICE: NEBRASKA SERVICE CENTER FILE:

PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3)(A)


INSTRUCTIONS:


This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at

http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C .P.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,

M-10.-Ron Rosenberg

Chief, Administrative Appeals Office

www.uscis.gov

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DISCUSSION: The Director, Nebraska Service Center (Director), denied the immigrant visa petition and denied the petitioner's motion to reopen as untimely. The Director treated the petitioner's appeal from the motion's dismissal as a motion and denied it.1 The Administrative Appeals Office dismissed the petitioner's subsequent appeal. The petitioner filed six motions to reopen and reconsider with our office, two of which we granted and four of which we denied.2

Before us now is the petitioner's seventh motion to reopen and reconsider. The motion will be granted, our prior decisions will be affirmed in part and withdrawn in part, the appeal will be dismissed, and the petition will remain denied.

The petitioner is a sole proprietor who operates retail shipping stores. He seeks to employ the beneficiary permanently in the United States as an administrative assistant. The petition requests classification of the beneficiary as a skilled worker under section 203(b )(3)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3)(A)(i). An ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL), accompanies the petition.

The Director concluded that the record did not establish the petitioner's continuing ability to pay the proffered wage from the petition's priority date of December 8, 2006 onward. Accordingly, he denied the petition on April l3, 2009.

On May 31, 2013, we affirmed the Director's decision and dismissed the petitioner's appeal. We also concluded that the record did not establish the petitioner's intention to employ the beneficiary in the offered position specified on the accompanying labor certification.

On November 26, 2013, we reopened the matter on the petitioner's motion, affirming our prior decision and again dismissing the appeal. We denied the petitioner's second motion on March 13, 2014, finding that it did not satisfy regulatory requirements. We denied the petitioner's third motion as untimely on June 20, 2014. We denied his fourth and fifth motions on August 20, 2014 and November 18, 2014, respectively, finding that he failed to establish that the delay in filing his third motion was beyond his control. We granted the petitioner's sixth motion on January 30, 2015 and affirmed our prior decisions.

In his current motion, the petitioner asserts that we erred in determining his ability to pay the proffered wage by disregarding assets and substituting our business judgment for his. He submits additional evidence in support of his ability to pay and argues that we erred in finding that he does not intend to employ the beneficiary in the offered position.

1 The Director's decision erroneously states that the petitioner lacked the right to appeal from the motion's denial. The Director also applied the wrong standard of proof, finding that the record did not provide "irrefutable evidence" to excuse the motion's untimeliness. Petitioners in visa petitions need only establish facts by a preponderance of evidence. See, e.g., Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). However, the record shows that the errors did not prejudice the petitioner because the Director forwarded the petitioner's following appeal to our office, and we found the petitioner's delay in filing the untimely motion to be reasonable and beyond his control. See 8 C.F.R. § 103.5(a)(l)(i) �describing the circumstances under which we may excuse the untimely filing of a motion).

In our most recent decision, we miscounted the number of motions filed by the petitioner. THE

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The motion states new facts, which are supported by affidavits and documentary evidence. It also alleges that we incorrectly applied law or U.S. Citizenship and Immigration Services (USCIS) policy. We therefore grant the motion to reopen and reconsider. See 8 C.F.R. §§ 103.5(a)(2), (3) (stating the requirements for motions to reopen and reconsider).

We exercise review on a de novo basis. See 5 U.S.C. § 557(b) (stating that an administrative agency generally has all the powers on review that it would have in making the initial decision).

The Petitioner's Ability to Pay the Proffered Wage

A petitioner must demonstrate his or her continuing ability to pay a proffered wage from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to pay must include copies of annual reports, federal income tax returns, or audited financial statements. /d.

In the instant case, the petition's priority date is December 8, 2006, the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). The ETA Form 9089 states the proffered wage for the offered position of administrative assistant as $17.16 per hour, or $35,692.80 per year for a 40-hour work week.

A petitioner's continuing ability to pay a proffered wage is an essential element in evaluating whether his or her job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142, 144 (Acting Reg'l Comm'r 1977). We generally require a petitioner to demonstrate financial resources sufficient to pay a beneficiary's proffered wage. However, we also consider the totality of the circumstances affecting a petitioner's business. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967).

In the instant case, the record contains copies of the petitioner's federal income tax returns, Internal Revenue Service (IRS) Forms W-2 Wage and Tax Statements, payroll records, and statements of numerous bank and investment accounts from 2006 through 2012. Because the petitioner is a sole proprietor, we consider his personal assets and income in determining his ability to pay the proffered wage. See O'Conner v. Att'y Gen. of US., Civ. A. No. 87-0434-Z, 1987 WL 18243, *1 (D. Mass. Sept. 29, 1987); see also Matter of Ranchito Coletero, 2002-INA-105, 2004 WL 192974, *3 (BALCA 2004) (en bane) (holding that a sole proprietorship's overall financial circumstances should be considered when assessing an employer's ability to pay the wage of the alien). A sole proprietor must demonstrate continuing abilities to pay the proffered wage and to support him- or herself and any dependents. See Ubeda v. Palmer, 539 F. Supp. 647, 650 (D. lll. 1982), aff'd by, Ubeda v. Palmer, 703 F.2d 571 (7th Cir. 1983) (finding a sole proprietor's ability to pay an annual proffered wage of $6,000 "highly unlikely" where his annual net taxable income was $13,000 and he supported himself, his wife, and his five children, one of whom was severely disabled).

In determining sole proprietors' abilities to pay, we first examine whether they employed the beneficiaries during the relevant time periods. Sole proprietors establish their abilities to pay if they demonstrate that their payments to the beneficiaries during the periods equaled or exceeded the proffered wages. THE

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In the instant case, the Forms W -2 state that the petitioner paid the beneficiary the following annual amounts:

• $11,908.27 in 2008; • $14,884.04 in 2009; • $18,167.67 in 2010; • $17,533.30 in 2011; and • $19,367.65 in 2012.

The petitioner did not submit any evidence that he paid the beneficiary in 2006 or 2007. Also, none of the annual amounts stated on the Forms W -2 from 2008 through 2012 equal or exceed the annual proffered wage of $35,692.80. The record therefore does not establish the petitioner's ability to pay the proffered wage based solely on the wages he paid the beneficiary.

However, the petitioner need only demonstrate an ability to pay the annual differences between the amounts he paid the beneficiary and the proffered wage. Thus, the petitioner must demonstrate an ability to pay the full proffered wage of $35,692.80 in 2006 and 2007, but need only establish an ability to pay: $23,784.53 in 2008; $20,808.76 in 2009; $17,525.13 in 2010; $18,159.50 in 2011; and $16,325.15 in 2012.

If sole proprietors do not establish that they paid beneficiaries amounts equal to or greater than the proffered wages, we next examine the annual adjusted gross income amounts on their tax returns and their stated annual living expenses. If sole proprietors' annual adjusted gross incomes equal or exceed the sums of the annual proffered wages and their annual living expenses, then they establish their abilities to pay the annual proffered wages.3

As indicated in our most recent decision, the following table shows the petitioner's annual living expenses, the annual differences to be paid between the proffered wage and the amounts he paid the beneficiary, his total annual obligations to demonstrate an ability to pay, his annual adjusted gross income amounts, and the annual shortfalls in his ability to pay.4

3 The petitioner's tax returns for 2006 through 2012 indicate that he filed joint returns with his wife. Because the petitioner and his wife live in California, a "community property" state, we consider assets and liabilities in either or both of their names in determining the petitioner's ability to pay. See See v. See, 64 Cal. 2d 778 (1966) (holding that most property acquired during a marriage in California is legally presumed to be owned jointly by both spouses). The tax returns indicate that the couple had no dependents in 2006 and 2007, one dependent in 2008 and 2009, and two dependents in 2010, 2011, and 2012. 4 As the petitioner argues on motion, our most recent decision misstated the petitioner's adjusted gross income and annual shortfall in 2006. The following table correctly states his adjusted gross income as $7,826 and the annual shortfall as $66,854.80 in 2006. THE

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Year Wage Living Total Adjusted Annual Differences Expenses Obligation Gross Income Shortfall

2006 $35,692.80 $38,988.00 $74,680.80 $ 7,826.00 $66,854.80 2007 $35,692.80 $38,988.00 $74,680.80 $52,087.00 $22,593.80 2008 $23,784.53 $45,240.00 $69,024.53 $ 1,558.00 $67,466.53 2009 $20,808.76 $48,000.00 $68,808.76 $ 325.00 $68,483.76 2010 $17,525.13 $50,520.00 $69,399.50 $14,689.00 $53,356.13 2011 $18,159.50 $51,240.00 $69,399.50 $32,575.00 $36,824.50 2012 $16,325.15 $53,160.00 $69,485.15 $17,692.00 $51,793.15

The petitioner asserts that a variety of accounts demonstrate his ability to pay the annual shortfalls reflected in the table from 2006 through 2012.

2006

To overcome the $66,854.80 shortfall in 2006, the petitioner argues that funds in a "Portfolio Management Account" (PMA) in his wife's name were available to pay the proffered wage.5 The record indicates that the PMA held $77,674.93 in assets at the end of 2006. The petitioner's 2006 tax return does not reflect the receipt of any interest income from the PMA. Notwithstanding this discrepancy, the preponderance of the evidence establishes the petitioner's ability to pay the proffered wage in 2006 based on the PMA. 6

2007

The petitioner first argued that his wife had another PMA with an average balance of $76,076.46 that was available to pay the 2007 shortfall of $22,593.80. However, in deciding the petitioner's first motion, we found that the 2006 and 2007 PMA statements referred to the same account.7 We therefore found that the petitioner would have largely depleted the PMA to pay the proffered wage in 2006 and that insufficient PMA funds would be available to pay the proffered wage in 2007 and later years.

The petitioner apparently concedes that the 2006 and 2007 PMA statements reflect funds in the same account. Since our decision on the petitioner's first motion, the petitioner has not argued that the 2007 PMA statements refer to another account. The record therefore indicates that the PMA statements refer to the same account.

5 The record indicates that the PMA included checking and savings accounts and renewable, three-month certificates of deposits (COs). The early withdrawal penalties on the COs were three months' interest on the amount of principal withdrawn. 6 In prior decisions, we applied the average balance of the PMA in 2006, which was $65,454.07. However, because the record shows little fluctuation in the PMA's monthly balances in 2006, we find that the PMA's year-end balance more accurately reflects the total available funds for the year. 7 The 2007 monthly PMA statements include some, but not all, of the individual account numbers stated on the 2006 monthly PMA statements.

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After applying funds from the PMA to pay the proffered wage in 2006, $10,820.13 would have remained in the account in 2007.8 If the petitioner used the PMA's remaining assets toward the proffered wage in 2007, he would still need to demonstrate an ability to pay the remaining required amount of $11,773.67.

The petitioner argues that he owned a car and a motorcycle that he could have sold to pay the remaining required amount. The record contains copies of a vehicle registration renewal notice regarding the car and a registration card regarding the motorcycle. The record also contains documentation, as of 2013, valuing the car at $6,508 and the motorcycle at $2,855. The petitioner argues that the vehicles would have been worth more in 2007.

The car's registration renewal notice does not identify the petitioner as the car's registrant or owner. The record therefore does not establish that the petitioner owned the car and could have sold it. See Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal. , 14 I&N Dec. 190, 193 (Reg'l Comm'r 1972) (stating that uncorroborated statements are insufficient to meet the burden of proof in visa petition proceedings).

The motorcycle registration card identifies the petitioner. However, the record does not establish that the motorcycle's sale would have generated enough revenue to pay the entire remaining required amount in 2007. Estimating the motorcycle's value at $4,000 in 2007, the petitioner would still need to demonstrate an ability to pay an additional $7,773.67.

The petitioner argues that he had available funds in two credit union accounts. However, the record contains only 2006 statements from these accounts. The record does not establish the account balances or the petitioner's ownership of the accounts after 2006. The record establishes that the petitioner had an average balance of $2,011.28 in his personal bank account in 2007. Crediting that amount would leave a remaining required amount of $5,762.39.

The record indicates that the petitioner could have used funds in his 401(k) retirement account from a prior employer to pay the proffered wage. The record indicates that the 401(k) account held

$35,319.44 at the end of 2007. The IRS imposes an additional 10 percent tax on early IRA withdrawals before the age of 59V2. See Internal Revenue Serv., "Topic 424 - 401(k) Plans," available at http://www.irs.gov/taxtopics/tc424.html (accessed Apr. 13, 2015). Therefore, no more than $31,787.50 would have been available from the petitioner's 401(k) in 2007 to pay the proffered wage.9 However, that amount would have been more than sufficient to pay the proffered wage that year.

Counsel asserted that the petitioner could have avoided early withdrawal penalties by obtaining a low-interest loan for most of the 401(k)'s value. However, the record does not contain evidence of the petitioner's ability to obtain such a loan. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984)

8 In past decisions, we incorrectly stated the remaining PMA balance in 2007 as $10,622.39. The corrected figure of $10,820.13 does not include any lost interest or valuation of assets. 9 USCIS records indicate that the petitioner was less than 591/z years old in 2008.

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(noting that a counsel's unsupported assertions do not establish facts of record). The record therefore does not establish that option.

2008

To fund the annual shortfall of $67,466.53 in 2008, the petitioner could have used the remaining $26,025.11 from his 401(k) account. This would have reduced the shortfall to $41,441.42.

The petitioner argues that $30,000 he used in 2008 to pay down principal on two loans for his stores could have been available to pay the proffered wage. The record contains evidence indicating that the petitioner paid two $15,000 loan-reduction amounts on August 12, 2008. Although foregoing the loan reduction payments would have presumptively resulted in additional interest payments in later years, the documentation indicates that the $30,000 in loan-reduction amounts was available to pay the proffered wage. However, the petitioner would still need to establish an ability to pay a remaining amount of $11,441.42 in 2008.

The petitioner also argues that he received $30,000 in capital gains from selling his store in California in 2008. The petitioner's 2008 tax return reflects a long-term capital gain of

$30,000 in goodwill from a sale on August 1, 2008. The petitioner states that he deposited the funds from this gain in a business checking account, a statement of which shows a substantial deposit in August 2008. The record therefore establishes sufficient money available from the proceeds of the sale and the petitioner's ability to pay the proffered wage in 2008.

2009

In a March 1, 2015 affidavit, the petitioner attested that he employed three part-time workers -including the beneficiary - in the full-time, offered position in 2009 and 2010. The petitioner stated that he would not have needed the other two part-time workers if he employed the beneficiary fulltime in the position.10 The record contains Forms W-2 showing that the petitioner paid the two other workers a total of $26,965.33 in 2009. Thus, after applying these available funds to the annual shortfall of $68,483.76 in 2009, the petitioner would still need to demonstrate an ability to pay $41,518.43 in 2009.

The petitioner argues that an average balance of $39,439.17 was available in a business checking account. However, the record shows that this is the same checking account into which the petitioner deposited the proceeds from the sale of the store. Thus, $11,441.42 used from the sale proceeds to pay the proffered wage in 2008 would not have been available in 2009. Therefore, this account would have contained no more than $27,997.75. The petitioner would still need to demonstrate an ability to pay a remaining $13,520.68 in 2009.

10 The petitioner asserts that his operations would realize significant efficiencies by employing one full-time worker in the offered position.

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The petitioner argues that $24,737 in depreciation amounts purportedly reflected on his 2009 tax return was available to pay the proffered wage. However, as we have indicated in previous decisions, we do not recognize depreciation amounts as funds available to pay a proffered wage. Rather, we consider depreciation to represent actual business costs - the annual wear and tear, deterioration, or obsolescence of buildings, machinery, vehicles, furniture, and equipment. See River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009) (holding that we have "a rational explanation" for not recognizing depreciation as amounts available to pay wages). Thus, while depreciation does not reflect cash expenditures in a given year, we do not consider it as available to pay wages.

The petitioner also asserts that an average balance of $2,558.81 in his personal bank account was available to pay the proffered wage in 2009. However, that amount would be insufficient to pay the remaining annual shortfall of $13,445.79. That account also appears to be the same account from which $2,011.28 would have been taken to pay the proffered wage in 2007. The record therefore does not establish what the account's balance would have been in 2009. Thus, the record does not establish the petitioner's ability to pay the proffered wage in 2009.

2010

To overcome the annual shortfall of $53,356.13 in 2010, the petitioner asserts that the amounts he paid the two other part-time workers in the offered position would have been available to pay the full-time, proffered wage to the beneficiary. The record contains copies of Forms W-2 indicating that the petitioner paid a total of $19,601.02 to the two other workers in 2010. After including these wage amounts, the petitioner must demonstrate an ability to pay a remaining annual shortfall of $33,755.11.

The petitioner also argues that he had an equity line of credit available to pay the proffered wage. As we have stated in prior decisions, because lines of credit are unenforceable commitments to loan, we do not recognize them as establishing an ability to pay as they are not available and/or guaranteed. See Rahman v. Chertoff, 641 F. Supp. 2d 349, 351-52 (D. Del. 2009) (holding that we reasonably disregarded a petitioner's line of credit in determining its ability to pay a proffered wage). Also, although the record contains 2007 statements indicating available credit from a home equity line, the record does not contain evidence of an available equity line in 2010. Thus, the record does not establish the petitioner's ability to pay in 2010.

2011

To overcome the annual shortfall of $36,824.50 in 2011, the petitioner argues that he could have foregone $41,875.49 he purportedly spent on business remodeling and construction-related costs. However, the petitioner does not point to any evidence of record to corroborate these costs, and we are unable to find any. See Matter of Soffici, 22 I&N Dec. at 165 (citation omitted) (stating that assertions uncorroborated by documentary evidence are insufficient to meet the· burden of proof in visa proceedings). The record therefore does not establish the petitioner's ability to pay the proffered wage in 2011. THE

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2012

In 2012, the petitioner argues that he received an unconditional loan guaranty of $545,000 through the U.S. Small Business Administration, a portion of which he purportedly could have used to overcome the annual shortfall of $51,793.15. However, the petitioner does not refer to any corroborating evidence of record regarding the loan guarantee, and we are unable to find any. See Matter of Soffici, 22 I&N Dec. at 165 (stating that assertions uncorroborated by documentary evidence are insufficient to meet the burden of proof in visa petition proceedings). Therefore, the record does not establish the petitioner's ability to pay the proffered wage in 2012.

Thus, based on examinations of the wages the petitioner paid the beneficiary, the petitioner's adjusted gross income, and his personal assets, the record does not establish his continuing ability to pay the proffered wage from 2009 through 2012.

As previously indicated, we may consider the overall magnitude of the petitioner's business activities in determining his ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. at 614-15. In Sonegawa, the petitioner conducted business for more than 11 years, routinely earning a net annual income of about $100,000. However, its most recent federal tax return did not reflect its ability to pay the proffered wage. During the year of the petition's filing, the petitioner relocated its business, causing it to pay rent on two locations for five months, incur substantial moving costs, and briefly cease business. Despite these difficulties, the Regional Commissioner determined that the petitioner would likely resume successful business operations and had established its ability to pay. The petitioner- was a fashion designer whose work was featured in national magazines. Her clients included the then Miss Universe, movie actresses, society matrons, and women on lists of the best-dressed in California. The petitioner also lectured at design and fashion shows throughout the United States and at California universities.

As in Sonegawa, we may consider evidence of the petitioner's ability to pay beyond the figures stated on his tax returns. We may consider such factors as: the number of years he has conducted business; the established historical growth of his business; his number of employees; the occurrence of any uncharacteristic business expenditures or losses; his reputation within his business's industry; and any other evidence of his ability to pay the proffered wage.

In our prior decisions, we viewed the petitioner's business activities too narrowly, focusing on the store indicated on the petition and the accompanying labor certification. However, as previously discussed, the petitioner sold that store in 2008 and his business has expanded to include three stores. Since starting the business in 2005, the record shows that the petitioner's number of employees, annual gross incomes, and annual wages paid have substantially increased.

However, unlike the petitioner in Sonegawa, whose tax returns reflected an insufficient ability to pay in one year because of uncharacteristic expenses, the petitioner has not demonstrated his ability to pay for a four-year period and has not established uncharacteristic expenses in those years. Also, the IRS Schedules C, Profit or Loss from Business, in the petitioner's tax returns indicate that his individual stores reported losses as often as profits from 2006 through 2012. THE

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Thus, assessing the totality of the circumstances in this case, the record does not establish the petitioner's continuing ability to pay the proffered wage. After careful reconsideration, we will therefore affirm our dismissal of the appeal.

The Petitioner's Intention to Employ the Beneficiary in the Offered Position

A labor certification remains valid only for the particular job opportunity, the alien, and the geographic area of intended employment stated on it. 20 C.P.R. § 656.30(c)(2). The term "area of intended employment" means "the area within normal commuting distance of the place (address) of intended employment." 20 C.P.R. § 656.3. Any place within the Metropolitan Statistical Area (MSA) of the place of intended employment is deemed to be within normal commuting distance. /d.

A petitioner must intend to employ a beneficiary pursuant to the terms and conditions of the accompanying labor certification. See Matter of Sunoco Energy Dev. Co., 17 I&N Dec. 283, 284 (Reg'l Comm'r 1979) (upholding the denial of a visa petition because the petitioner did not intend to employ the beneficiary in the geographic area of intended employment stated on the labor certification); see also Che-Li Shen v. INS, 749 F.2d 1469, 1472-73 (lOth Cir. 1984) (finding a beneficiary ineligible for a visa petition where the petitioner moved its business outside the geographic area of intended employment stated on the labor certification).

In the instant case, the accompanying labor certification states the area of intended employment for the offered position of administrative assistant as California. However, the record indicates that, after filing the labor certification application on December 8, 2006 and the petition on August 16, 2007, the petitioner sold his store in in August 2008. In his March 1, 2015 affidavit, the petitioner attested that he now intends to employ the beneficiary in the offered position at his store in California, which he bought in 2007.

Online DOL information indicates that which are both located in are within the same MSA. See U.S. Dep't of Labor, Foreign Labor Data

Center, at http://www .flc.data.center .com/Oes WizardStep2.aspx?stateName=California (accessed Mar. 18, 2015).11 Therefore, the record indicates that the job offer is in the geographic area of intended employment stated on the labor certification.

In our most recent decision, we mistakenly faulted the petitioner for not demonstrating his current employment of the beneficiary at one of his stores in the geographic area of intended employment. Our regulations do not require a petitioner to currently employ a beneficiary. See 8 C.P.R. § 204 .5(a)(c) (stating that any U.S. employer "desiring and intending" to employ an alien may file a petition). Moreover, as the petitioner argues on motion, the record establishes that he has employed the beneficiary in the geographic area of intended employment since 2008.

11 The record indicates that all of the petitioner's stores - including his two others in same MSA.

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A labor certification employer must also maintain a U.S. location to which domestic workers may be referred for employment. 20 C.P.R. § 656.3 (defining the term "employer" for labor certification purposes). However, the record establishes that the petitioner has continuously operated his business in the U.S. since filing the labor certification application and that all of his stores have the same federal employer identification number (FEIN). See 20 C.P.R. § 656.3 (stating that a labor certification employer must possess an FEIN); see also Internal Revenue Serv., "Understanding Your EIN," 3, available at, http://www.irs.gov/pub/irs-pdf/p1635.pdf (accessed Mar. 26, 2015) (stating that a sole proprietor does not need a new FEIN to change or add locations). The petitioner therefore satisfies the definition of an "employer" for labor certification purposes.

We also faulted the petitioner in our most recent decision for failing to state on the labor certification that the offered position involves travel or work at multiple locations. See 20 C.P.R.§ 656.17(±)(4) (requiring print advertisements to indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants would likely have to reside to perform the job opportunity). However, the record does not indicate that the offered position involves travel or work at multiple locations. In a declaration dated January 14, 2014, the petitioner stated that his store in became his "headquarters" after he sold the

store and that he now intends to employ the beneficiary in The record therefore does not indicate that the job opportunity involves work at multiple locations or travel beyond a normal commute to and from

In our March 13, 2014 decision, we found that the beneficiary's licensure in the unrelated occupation of registered nurse cast doubt on the petitioner's intention to employ him in the offered position. However, the record establishes that the petitioner has employed the beneficiary, albeit on a part-time basis, at one of his retail shipping stores since 2008. The petitioner also attested to his intention to employ the beneficiary in the offered position.

The record establishes that the petitioner meets the definition of an "employer" for labor certification purposes and that the job opportunity and the geographic area of intended employment are as stated on the labor certification. We will therefore withdraw the portions of our prior decisions finding that the job opportunity had changed.

Bona Fides of the Job Opportunity

A labor certification employer must attest that "[t]he job opportunity has been and is clearly open to any U.S. worker." 20 C.P.R. § 656.10(c)(8). "This provision infuses the recruitment process with the requirement of a bona fide job opportunity: not merely a test of the job market." Matter of Modular Container Sys., Inc., 89-INA-228, 1991 WL 223955, *7 (BALCA July 16, 1991) (en bane) (referring to the former, identical regulation at 20 C.P.R. § 656.20(c)(8)). We may deny a petition accompanied by a labor certification that does not comply with DOL regulations. See Sunoco Energy Dev., 17 I&N Dec. at 284 (upholding a petition's denial where the accompanying labor certification was invalid for the area of intended employment). To provide an "opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an employer must disclose any familial relationship(s) between the foreign THE

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worker and the owners, stockholders, partners, corporate officers, and incorporators by marking 'yes' to Question C.9 on the ETA Form 9089." U.S. Dep't of Labor, Office of Foreign Labor Certification, "OFLC Frequently Asked Questions & Answers," "Familial Relationships,"

http://www.foreignlaborcert.doleeta.gov/faqsanswers.cfm (accessed May 4, 2015). "A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. It also includes relationships established through marriage, such as in-laws and step-families." /d.

In the instant case, the petitioner attested on the accompanying labor certification that "[t]he job opportunity has been and is clearly open to any qualified United States worker." ETA Form 9089, Question N.8.; 20 C.F.R. § 656.10(c)(8). Also, in response to Question C.9 on the ETA Form 9089, which asks: "Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien?" the petitioner indicated: "No."

However, despite the petitioner's negative response to Question C.9 on the ETA Form 9089, he submitted a letter that identifies the beneficiary as the nephew of a woman with the same last name as the petitioner. The April 10, 2014 letter from states that the beneficiary helped the woman care for Mr. father during the last years of his life.

The record does not indicate whether the woman to which the letter refers has a familial relationship with the petitioner. In any future filings regarding this petition, the petitioner must indicate whether the beneficiary is related to him. If so, the petitioner must document the relationship. See 20 C.P.R.

§ 656.17(1) (detailing documentation required by DOL if an alien has a familial relationship with an employer). He may also submit additional evidence regarding whether the offered position was clearly available to U.S. workers. See Modular Container Sys., 1991 WL 223955 at *8 (stating. that a determination of a bona fide job opportunity requires consideration of a variety of factors, including whether the alien: was in a position to control or influence hiring decisions regarding the job opportunity; was an incorporator or founder of the company; is involved in the company's management; or has qualifications that are identical to specialized or unusual job duties or requirements stated on the labor certification).

Conclusion

The petitioner's motion to reopen and reconsider will be granted. The record does not establish the petitioner 's continuing ability to pay the proffered wage from the petition's priority date. We will therefore affirm the appeal's dismissal.

The appeal will be dismissed for the reason stated above. In visa petition proceedings, a petitioner bears the burden of establishing eligibility for the benefit sought. See section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. at 128. The instant petitioner has not met that burden. THE

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Non-Precedent Decision of the Administrative Appeals Office

DATE: JULY 22, 2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a sole proprietor operating retail shipping stores, seeks to employ the Beneficiary as an administrative assistant. It requests classification of the Beneficiary as a skilled worker under the third preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident status to work in a position that requires at least 2 years of training or experience.

The Director, Nebraska Service Center, denied the petition. The Director determined that the Petitioner had not established its continuing ability to pay the Beneficiary's proffered wage from the priority date of December 8, 2006, onward. We dismissed the subsequent appeal that came before. us, concluding that the Petitioner had not established its ability to pay the proffered wage. The Petitioner filed seven motions to reopen and reconsider. We affirmed our prior decisions regarding the Petitioner's ability to pay the proffered wage. In our latest decision we also noted that, with any further filings, the Petitioner must establish that a bona fide job offer exists because it appears that the Beneficiary may have had a familial relationship with the Petitioner.

The matter is now before us on an eighth motion to reopen and reconsider. The Petitioner submitted additional evidence regarding its ability to pay the proffered wage. The Petitioner also provided evidence to demonstrate that the Beneficiary is not related to the Petitioner, including the Beneficiary's birth certificate, his parents' marriage certificate, and a letter from an acquaintance of the Beneficiary correcting a previous statement that the Beneficiary was related to the Petitioner's owner.

We will deny the motion to reopen and reconsider.

I. PROCEDURAL HISTORY

The Director denied the petition on April 13, 2009, concluding that the Petitioner had not established its continuing ability to pay the Beneficiary's proffered wage from the priority date of December 8, 2006, onward. The Petitioner filed seven motions to reopen and reconsider with us. In our last decision on June 8, 2015, we held that the Petitioner had not established its ability to pay the proffered wage for 2009 through 2012. We also stated that in any further filings, the Petitioner must

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establish the job offer is a bona fide job offer. We specifically noted that a recommendation letter for the Beneficiary referred to the Beneficiary as the Petitioner's owner's nephew.

The matter is again before us on motion to reopen and reconsider. The motion to reopen qualifies for consideration under 8 C.F.R. § 103.5(a)(2) because the Petitioner is providing new facts with supporting documentation not previously submitted. The Petitioner submitted additional evidence on motion and states it has the ability to pay the proffered wage and that the position offered is a bona fide job offer.

The motion to reconsider qualifies for consideration under 8 C.F.R. § l 03.5(a)(3) because the Petitioner asserts that we made an erroneous decision through misapplication of law or policy.

II. LAW AND ANALYSIS

The first step in sponsoring a foreign national for lawful permanent resident status in the skilled worker category is that the petitioner files an ETA Form 9089 (labor certification) with the U.S. Department of Labor (DOL). The date the labor certification is accepted for processing by the DOL establishes the priority date. See 8 C.F.R. § 204.5(d). The priority date provides the benchmark for when a visa will become available for the Beneficiary to adjust to lawful permanent status. Once the DOL approves the labor certification, certifying that employment of the foreign national will not negatively affect the U.S. labor market, the petitioner submits to U.S. Citizenship and Immigration Services (USCIS) a Form 1-140, Immigrant Petition for Alien Worker, and the approved labor certification. Then, once USCIS approves the Form l-140 and a visa becomes available based upon the priority date, the beneficiary is eligible to become a lawful permanent resident of the United States.

As required by statute, the petition is accompanied by a labor certification approved by the DOL. The labor certification was accepted on December 8, 2006. The proffered wage as stated ·on the labor certification is $17.16 per hour, or $35,692.80 per year.


Ability of prospective employer to pay wage. Any pet1t10n 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 either in the form of copies of annual reports, federal tax returns, or audited financial statements.

Thus, the petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date. See 8 C.F.R. § 204.5(d). 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 'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is

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realistic, users 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' I eomm'r 1967).

users considers three aspects in determining whether a sole proprietor has the ability to pay the beneficiary's proffered wage: (I) the wages paid to the Beneficiary and whether these wages exceeded the proffered wage; (2) the sole proprietor's adjusted gross income (AGI) minus expenses; 1 and (3) the totality of the circumstances under Matter ofSonegawa, 12 I&N Dec. 612 (Reg'! eomm'r 1967).

In the instant case, the issue is whether the Petitioner had the ability to pay the Beneficiary's proffered wage in 2009, 2010, 2011, and 2012. The following chart demonstrates the shortfall that must be covered after subtracting from the sole proprietor's AGI the sole proprietor's household expenses and deficiencies in the Beneficiary's wages paid in the relevant years:

Year Shortfall the sole proprietor must cover

2009 $4988.93 2010 $33,755.11 2011 $36,824.50 2012 $51,793.15

This demonstrates that from 2009 through 2012, the Petitioner has a total shortfall of $127,361.69 after considering the sole proprietor's living expenses and the deficiencies in wages paid for these years. We will consider the Petitioner's assertions in each of these years individually and in the totality of circumstances as to whether it has the ability to pay the proffered wage.

At the outset, the Petitioner states that certain assets before 2009 should be considered toward its ability to pay the proffered wage. The Petitioner states that it had several bank accounts in 2006 which added together had an annual average balance of $4503.09. It is unclear how those amounts would have remained available to pay any part of the deficiencies from 2009 through 2012. Therefore, we will not view the amounts in these bank accounts toward the deficiencies for the years at issue.

1 Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual owner. See Matter of United Investment Group, 191&N Dec. 248,250 (Comm'r 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. See O'Conner v. Atty. Gen., 1987 WL 18243 (D. Mass. Sept. 29, 1987) (indicating that the personal assets and income of the sole proprietors are relevant to a determination of the ability of the sole proprietorship to pay the proffered wage).

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A. 2009

Counsel asserts in her brief that the shortfall of $4988.93 in 2009 could be met by the sole proprietor's willingness to se11 his car or by utilizing one of the Petitioner's business lines of credit. First, the record contains a declaration from the sole proprietor indicating that in 2013, the

value of his car was $6085. He states that it would have been worth much more in prior years. However, the record does not contain sufficient evidence of the condition of this car for the relevant years at issue to substantiate its value and whether it would have covered the shortfall from 2009 through 2012. At most, it appears that this would have only overcome the shortfall in 2009, not from 2010 onward. Without additional evidence of the condition and value of the sole proprietor's car in 2009, we cannot consider the potential sale of this car towards the ability to pay the proffered wage.

Second, the Petitioner states that it can utilize business or personal lines of credit to cover the shortfall in 2009. Comparable to the limit on a credit card, the Petitioner's business line of credit cannot be treated as cash or as a cash asset. However, if a petitioner wishes to rely on a line of credit as evidence of ability to pay, it must submit documentary evidence, such as a detailed business plan and audited cash flow statements, to demonstrate that the line of credit will augment and not weaken its overall financial position. Finally, USCIS will give less weight to loans and debt as a means of paying salary since the debts will increase a petitioner's liabilities and will not improve its overall financial position. Although lines of credit and debt are an integral part of any business operation, USCJS must evaluate the overalJ financial position of a petitioner to determine whether the employer is making a realistic job offer and has the overall tinancial ability to satisfy the proffered wage. See Matter ofGreat Wall, 16 I&N Dec. 142.

The record contains a copy of the Petitioner' s Statement, indicating that as of December 12, 2009, the Petitioner had available credit of S9669. The Petitioner states that one of his lines of credit averages $77l8. As stated above, we will not treat business lines of credit as cash or a cash asset. The Petitioner has not provided sufficient evidence to demonstrate that its line of credit improves and not weakens .its financial position. Theretore, the Petitioner has not established its ability to pay the proffered wage in 2009.

B. 2010

We stated previously that the annual shortfall for 2010 was $33,755.11. The sole proprietor states that, because he ovms multiple stores, this shortfall could have been covered by the average balances m JtS store's credit line of$17,723.58 and the average ofthe sole proprietor's personal credit line of $16,912.41. ·

We do not agree with the Petitioner' s statement that the remaining shortfall of $33,755. 11 could have been covered by the these credit lines. First, we note that the Petitioner has not established that the Beneficiary will we be employed at the store in California. The Petitioner has not provided documentation that establishes whether the credit lines for the store in could be used for obligations at another one of the sole proprietor's stores. It appears that a credit line for

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the store in would be tied to transactions arising within that store. In addition, as stated above, we will not treat the Petitioner' s business line of credit as cash or a cash asset. The Petitioner has not submitted documentary evidence, such as a detailed business plan and audited cash flow statements, to demonstrate that the line of credit wi ll augment and not weaken its overall financial position. The evidence submitted on motion contains the sole proprietor' s personal account which had an average credit line of $16,912.41 in 2010. The record does not establish how the sole proprietor's bank would allow him to use this personal line of credit to pay the Beneficiary's proffered wage. The record does not establish what this account is generally used for and how the needs ordinarily met by this account could be met in other ways. Even if the evidence in the record resolved the issues noted above, the amount of this credit line is $16,912.41 , which is insufficient to pay the shortfall of$33,755.11 for 2010. Therefore, the Petitioner has not established that it could cover the shortfall for 20 I 0.

c. 2011

The Petitioner states on motion that he incurred a total of $41,875.49 for remodeling and buildout costs and an fee in 2011. USCIS may consider the overall magnitude of the petitioner's business activities in its determination of the petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'! Comm' r 1967). On motion, the sole proprietor submitted an invoice for remodeling to his store in for $5000, a buildout ledger stating costs of $18,069.63, and an order workbook stating costs of $18,0805.86 for store in which together equal the $41,875.49 costs. The record contains the sole proprietor's Form 1040, Schedule C, for 2011 which state repair and maintenance costs of $6447 at the store and $1402 at the store in It is unclear why the repair and maintenance costs documented by the Petitioner for 2011 were not included on the Form 1040 for that year.

Under Sonegawa, in addition to providing evidence of unexpected costs incurred, the Petitioner would also need to provide evidence of its abi lity to pay the proffered wage in the surrounding years and additional evidence such as the established historical growth of the petitioner's business, the overall number of employees, the petitioner' s reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, and evidence that the financial impact of the costs incurred indicating that the financial picture of that year was much different from the prior years. The following chart indicates the gross receipts and expenses stated on the sole proprietor's Forms 1040, Schedule C, for 2009 through 2012.

-Store CA) Store CA)

Year Gross receipts Expenses Gross receipts Expenses 2009 $326,271 $210,146 $445,626 . $259,635 2010 $340,141 $180,155 $261,03 1 $268,923 2011 $341 ,237 $203,349 $434,976 $261 ,721 2012 $339,946 $199,271 $460,141 $257,998

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Apart from the amount of gross receipts in 2010 at the store in these figures indicate that the Petitioner's gross receipts and expenses have remained fairly consistent. The record does not contain sufficient evidence establishing its established historical growth or other pertinent factors similar to Sonegawa. Therefore, the Petitioner has not established that it could cover the shortfall of $36,824.50 for 2011.

D. 2012

On motion, the Petitioner states that the SBA unconditional loan guaranty received from the in the amount of $545,000 may be used to cover the $51,793.15 shortfall in 2012.

The Petitioner states that "the loan was approved for payment of operating costs the business may incur, such as lease, payroll, etc., as well as leasehold improvements, equipment and inventory." The sole proprietor has multiple stores in different locations and states that we should consider a loan to its and locations in the amount of $20,069.88 and a loan for working capital to the Petitioner for $37,823.04. We note that $316,321.40 of this loan is stated on the statements as "Debt Refinance" and the record does not provide evidence of the purpose of the loans to the and stores in the amount of $20,069.88 at each location. Therefore, the Petitioner has not established that it had the ability to pay the shortfall of $51,793.15 for 2012.

E. Totality of the Circumstances

As indicated above under Matter of Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability in the totality of the circumstances. In the instant case, the sole proprietor has had shortfalls in covering his personal expenses and the Beneficiary's proffered wage in the amounts of $68,483.76, $53,356.13, $36,824.50, and $51,793.15 for 2009, 2010, 2011, and 2012, respectively. The Petitioner states that we should consider the amounts stated in the business checking accounts. However these amounts would be listed on the Schedule C of the IRS Form 1040. The net profit or loss is carried forward to page one of the Petitioner's IRS Form 1040 and this is included in the calculation of his adjusted gross income. We will not count these amounts twice in our calculation of the Petitioner's ability to pay the proffered wage. The Petitioner indicates that he incurred losses in 2007 after purchasing two stores in the amount of $645,000. However, the years 2009 through 2012 are the years at issue on motion, not 2007. The Petitioner states that it was approved for an unconditional SBA guaranty loan for $545,000. However, as noted above, $316,321.40 of this loan is stated as "Debt Refinance" and the record does not contain specific evidence regarding how the loans are to be used at the and stores in the amount of $20,069.88 for each store.

On motion, the Petitioner cites the court's decision in Construction and Design Co. v. USCIS, 563 F.3d 593 (7th Cir. 2009), for the proposition that net income may not accurately reflect a corporation's ability to pay the proffered wage. We do not find the court's decision in Construction and Design to be particularly supportive or persuasive of the Petitioner's position in this case. The facts of Construction and Design are distinguishable from the instant facts in that Construction and Design dealt with an S corporation whereas the instant Petitioner is a sole proprietor. This is a major difference here because a sole proprietor is able to utilize many other avenues for demonstrating the

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ability to pay the proffered wage such as providing evidence of assets compared with personal liabilities. Further, Construction and Design dealt with the issue of the conversion of an independent contractor to a permanent employee. /d. at 596. This matter did not arise with the same circuit as Construction and Design. We are bound by the Act, agency regulations, precedent decisions of the agency and published decisions from the circuit court of appeals from whatever circuit that the action arose. See N.L.R.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987). Additionally, the court's holding in Construction and Design affirmed the district court's decision in denying the work visa sought by the petitioner. !d. at 598.

Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage.

F. 2013 to 2015

The Petitioner did not submit any evidence regarding its ability to pay the proffered wage for 2013, 2014, and 2015. Therefore, the Petitioner has not demonstrated its continuing ability to pay the proffered wage.

G. Whether the Job Offered is a Bona Fide Job Offer

We indicated in our prior decision that in any further filings the Petitioner must demonstrate that the Beneficiary is not related to the Petitioner' s sole proprietor. The record contains an original letter from the Beneficiary's acquaintance referring to the Beneficiary as the sole proprietor's nephew. We noted this fact in our prior decision and indicated that this may be an indication that the instant position offered is not a bonafide job offer. On motion, the Petitioner submitted a letter, dated June 30, 2015, from the same acquaintance indicating that he was mistaken about any relationship between the Beneficiary and the sole proprietor and stating that he now understands they are not relatives, just acquaintances. The Petitioner also submitted the Beneficiary' s birth certificate and the marriage certificate of his parents. We note that a search of government databases indicates that the Beneficiary entered the United States on a B-1 visa in 2001 and stated his address as in California, which was the same address as the sole proprietor. This tends to indicate that the Beneficiary knew the sole proprietor before the job offer was made and the evidence in the record has not demonstrated the extent of the relationship. Thus, although the sole proprietor denies that a familial relationship exists, it appears that the Beneficiary had close ties to the Petitioner's owner prior to the filing of the instant petition.

Under 20 C.F.R. §§ 626.20(c)(8) and 656.3, the petitioner has the burden when asked to show that a valid employment relationship exists, that a bona fide job opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987). USCIS must consider the merits of a petitioner's job offer to determine whether the job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142. A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by "blood" or it may "be financial , by marriage, or through friendship." See Matter of Sunmart 374, 00-INA-93 (BALCA May 15, 2000). In our previous decision, we cited Modular Container Systems. Inc., 1989-INA-228 (BALCA Jul. 16, 1991) (en bane), regarding

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evidence that the Petitioner could submit to demonstrate that the position offered was clearly open to U.S. workers. These factors include whether the Beneficiary is in a position to control or influence hiring decisions; whether he was an incorporator or founder of the company; whether he is involved in the management of the company; or whether he has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application. Id The Petitioner has not provided any evidence regarding these factors to establish that the job offered was clearly open to U.S. workers. The Petitioner has not met its burden of establishing that the instant position is a bonafide job offer.

III. CONCLUSION

For the foregoing reasons, we conclude that the Petitioner has not established its ability to pay the Beneficiary's proffered wage from 2009 onward or that the job offered constituted a bonafide job offer.

In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter o[Otiende, 26 1&N Dec. 127, 128 (BIA 2013). The Petitioner has not met that burden.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter ofT-UPSS-#5-, 10# 15104 (AAO July 22, 2016)

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Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 10, 2017

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a sole proprietor operating retail shipping stores, seeks to employ the Beneficiary as an administrative assistant. It requests classification of the Beneficiary as a skilled worker under the third preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident status to work in a position thatrequires at least 2 years of training or experience.

The Director, Nebraska Service Center, denied the petition. The Director determined that the Petitioner had not established its continuing ability to pay the Beneficiary' s proffered wage from the priority date of December 8, 2006, onward. We dismissed the subsequent appeal that came before us, concluding that the Petitioner had not established its ability to pay the proffered wage. The Petitioner then filed eight motions to reopen and reconsider which were denied. In our last decision, we affirmed our prior decisions and concluded that the Petitioner had not established its ability to pay the proffered wage for 2009 through 2015 and that the Petitioner had not established the existence of a bonafide job offer. ,

The matter is now before us on a ninth motion to reopen and reconsider. On motion, the Petitioner has submitted a statement regarding the concerns raised in our previous decisions highlighting specific details regarding his assets that he states sufficiently establish his ability to pay the proffered wage. The Petitioner further provides some additional financial documentation and asserts that the job offered was a bonafide job opportunity.

Upon review, we will deny the motion to reopen and reconsider.

I. LAW

A. General Requirement for Motions

The provision at 8 C.F.R. § 103.5(a)(l)(i) limits a U.S. Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or reconsider the decision to instances where "proper cause" has been ·shown for such action. Thus, to merit reopening or reconsideration, the submission must not only meet the formal requirements for filing (such as, for instance, submission THE

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of a Form I-290B, Notice of Appeal or Motion, that is properly completed and signed, and accompanied by the correct fee), but the Petitioner must also show proper cause for granting the motion., As stated in the provision at 8 C.P.R. § 103.5(a)(4), "Processing motions in proceedings before the Service," "[a] motion that does not meet applicable requirements shall be dismissed."

B. Requirements for Motions to Reconsider

The regulation at 8 C.P.R. § 1 03.5(a)(3), "Requirements for motion to reconsider," states:

A motion to reconsider must [(1)] state the reasons for reconsideration and [(2)] be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must [(3)], when tiled, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision.

These provisions are augmented by the related instruction at Part 4 of the Form l-290B, which states: "Motion to Reconsider: The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions when filed and must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of record at the time of decision." ·

A motion to reconsider contests the correctness of the prior decision based on the previous factual record, as opposed to a motion to reopen which seeks a new hearing based on new facts. Compare 8 C.P.R. § 103.5(a)(3) and 8 C.P.R. § 103.5(a)(2). A motion to reconsider should not be used to raise a legal argument that could have been raised earlier in the proceedings. See Matter of Medrano , 20 I&N Dec. 216, 219 (BIA 1990, 1991) ("Arguments for consideration on appeal should all be submitted at one time, rather than in piecemeal fashion."). Rather, any "arguments" that are raised in a motion to reconsider should flow from new law or a de novo legal determination that could not have been addressed by the affected party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (examining motions to reconsider under a similar scheme provided at 8 C.F.R. § 1003.2(b)); see also Martinez-Lopez v. Holder, 704 F.3d 169, 171-72 (lst Cir. 2013). Further, the reiteration ofprevious arguments or general allegations of error in the prior decision will not suffice. Instead, the affected paf!y must state the specific factual and legal issues raised on appeal that were decided in error or overlooked in the initial decision. See 0-S-G-, 24 I&N Dec. at 60.

C. Requirements for Motions to Reopen

The regulation at 8 C.P.R. § I 03.5(a)(2), "Requirements for motion to reopen," states: "A motion to reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be supported by affidavits or other documentary evidence." This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: "Motion to Reopen: The motion must

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state new facts and must be supported by affidavits and/or documentary evidence demonstrating eligibility at the time the underlying petition or application was filed."

Further, the new facts must possess such significance that, "if proceedings ... were reopened, with all the attendant delays, the new evidence offered would likely change the result in the case." lvfatter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 (lOth Cir. 2013).

II. ANALYSIS

A. Motion to Reconsider

A motion to reconsider must state the reasons for reconsideration and be supported by cit~tions to pertinent statutes, regulations, and/or precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. See 8 C.F .R. § 103 .5( a)(3) (detailing the requirements for a motion to reconsider). Here, the Petitioner does not assert that our prior decision was based on an incorrect application of law or policy, nor does it cite to any pertinent statutes, regulations, or precedent decisions. Therefore, we will deny the Petitioner's motion to reconsider.

B. Motion to Reopen

A motion to reopen must state the new facts to be provided in the reopened proceeding and must be supported by affidavits or other documentary evidence. 8 C.F.R. § 1 03.5(a)(2). Any new facts submitted must also be of such significance that they would likely change the outcome of the case. In this case the Petitioner submits additional financial documentation for 2013 through 201 5 and a statement concerning the bona .fide nature of the job; but, as will discussed below, the evidence submitted is not sufficient to change the outcome of the case.

Regarding the Petitioner's ability to pay the proffered wage, we held in our prior decision that the Petitioner has not established its ability to pay the proffered wage of $35,692.80 from 2009 through 2015. The regulation 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 either in the form of copies of annual reports, federal tax returns, or audited financial statements.

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Thus, the petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date. See 8 C.F.R. § 204.5(d). The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter qf"Great Wall, 16 I&N Dec. 142 (Acting Reg' I Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2), In evaluating whether a job offer is realistic, USCIS 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 ql Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).

The new evidence submitted by the Petitioner with this motion pertains to 2013 through 2015. The new evidence is sufficient to establish the Petitioner's ability to pay the proffered wage in 2014 and

- ~015. However, it does not establish the Petitioner's ability to pay the proffered wage in 2013. According to the documents submitted, the Petitioner paid the Beneficiary $23,450.84 in 2013, which is $12,241.96 less than the proffered wage. In the same year, the Petitioner had an adjusted gross income of $61,335 .and annual expenses of $53,160, leaving only $8175 available. This amount is not sufficient to cover the difference between the proffered wage and the wages paid to the Beneficiary. 1 As such, the Petitioner has not established its ability to pay the proffered wage in 2013. On motion, the Petitioner asserts that an "SBA Unconditional loan guaranty" would have been available to pay the wage obligation. As we noted in our last decision, if the Petitioner wishes to rely on loans as evidence of ability to pay, the Petitioner must submit documentary evidence to demonstrate that the loan will augment and not weaken its overall financial position. Here, the Petitioner has not done so; therefore, we will not consider the Petitioner's loan guaranty toward the ability to pay the proffered wage.

Regarding the Petitioner's ability to pay in 2009 through 2012, we note that our prior decision included a year by year account of the Petitioner's financial information and a detailed analysis of the evidence, including the Petitioner's claims that the sale of his car could have covered the deficiency in 2009, that lines of credit were available for 2010, that funds spent on remodeling in 2011 could have been used to pay the Beneficiary's wages, and that an unconditional loan guaranty could have covered the shortfall in 2012. For•this motion, the Petitioner reiterates the claims that were previously responded to, but does not submit any new facts or evidence in regard to its ability to pay in 2009 through 2012. As was noted in our prior decision, we do not find the value of the car, credit lines, and loans sufficient to establish the Petitioner's ability to pay the deficiencies in the years in question.

1 Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual owner. See Matter of United Investment Group, 19 l&N Dec. 248, 250 (Comm ' r 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. See 0 'Conner v. Atty. Gen., 1987 WL 18243 (D. Mass. Sept. 29, 1987) (indicating that the personal assets and income of the sole proprietors are relevant to a determination of the ability of the sole proprietorship to pay the proffered wage).

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Although the Petitioner submits some new facts supported by documentary evidence on motion, they are not of such significance that they would overcome our prior decision finding that the Petitioner has not established its continuous ability to pay the proffered wage.

Regarding the bonafide nature of the job opportunity, we noted in our prior decision that a search of government databases indicates that the Beneficiary entered the United States on a B-1 visa in 200 l and stated his address as in California, which was the same address as the sole proprietor. We stated that this made it appear that the Beneficiary knew the sole proprietor before the job offer was made and that he had close ties to the Petitioner, thus calling into question the existence of a bonafide job offer. We further discussed the factors that may determine whether a bona fide job offer exists. On motion, the Petitioner submits a statement indicating that he never lived at the address. However, the Petitioner did not otherwise address or submit any additional evidence to establish that the job opportunity was bonafide. We find that in the totality of the circumstances, the Petitioner has not submitted sufficient evidence to overcome this concern. The Petitioner must support its assertions with relevant, probative, and credible evidence sufficient to meet its burden of proof. See Matter of Chawathe, 25 I&N Dec. at 369. Here, the Petitioner has not provided sufficient evidence to establish the existence of a bonafide job otTer.

"There is a strong public interest in bringing [a case] to a close as promptly as is consistent with the interest in giving the [parties] a fair opportunity to develop and present their respective cases." INS v. Abudu, 485 U.S. 94, 107 (1988). Motions for the reopening of immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94). A party seeking to reopen a proceeding bears a "heavy burden" of proof. INS v. Abudu, 485 U.S. at 110. With the current motion, the Petitioner has not met that burden. As such, we will deny the motion to reopen.

III. CONCLUSION

For the foregoing reasons, we conclude that the Petitioner has not established its ability to pay the Beneficiary's proffered wage from 2009 through 2013 or that the proffered position constituted a bonafide job opportunity. '

In visa petition proceedings, it is the petitioner' s burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 136L The Petitioner has not met that burden.

ORDER: The motion to reopen is denied.

FU&THER ORDER: The motion to reconsider is denied.

Cite as Matter of ID# 112844 (AAO Feb. 10, 2017)

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