dismissed EB-2 Case: Computer Science

identifying data deleted to 
prev~nt clearly unwarranted 
InvaSIon of personal privacy 
PUBLIC COpy 
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: 
SEP 28 2011 
Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and 
Nationality Act, 8 U.S.c. § 1153(b)(2) 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is an advanced computer consulting company. 1 It seeks to employ the beneficiary 
permanently in the United States as a Software Engineer. As required by statute, the petition is 
1 The regulation at 8 C.F.R. § 204.5(c) provides that "[a]ny United States employer desiring and 
intending to employ an alien may file a petition for classification of the alien under ... section 
203(b )(2) of the Act." In addition, the Department of Labor (DOL) regulation at 20 C.F.R. § 656.3 
states: 
Employer means a person, association, firm, or a corporation which currently has a 
location within the United States to which U.S. workers may be referred for 
employment, and which proposes to employ a full-time worker at a place within the 
United States or the authorized representative of such a person, association, firm, or 
corporation. 
From the record, it is unclear that the petitioner will be the beneficiary's direct actual employer or 
whether its employees are outsourced on assignments or consultant projects. The petitioner states 
that it currently has 240 employees, but has filed at least 1,400 immigrant and non-immigrant 
petitions since the priority date of the instant petition. The petitioner states its business activity on 
the Form 1-140 as "computer consulting." 
In determining whether there is an "employee-employer relationship," the Supreme Court of the 
United States has determined that where a federal statute fails to clearly define the term "employee," 
courts should conclude "that Congress intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 
503 U.S. 318, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non­
Violence v. Reid, 490 U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency § 220(2) (1958); Clackamas 
Gastroenterology Associates, P.e. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
Page 3 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968». 
In considering whether or not one is an "employee," U.S. Citizenship and Immigration Services 
(USCIS) must focus on the common-law touchstone of control. Clackamas, 538 U.S. at 450. Factors 
indicating that a worker is an "employee" of an "employer" are clearly delineated in both the Darden 
and Clackamas decisions. 503 U.S. at 323-324; see also Restatement (Second) of Agency § 220(2) 
(1958). Such indicia of control include when, where, and how a worker performs the job; the 
continuity of the worker's relationship with the employer; the tax treatment of the worker; the 
provision of employee benefits; and whether the work performed by the worker is part of the 
employer's regular business. See Clackamas, 538 U.S. at 448-449; cf New Compliance Manual, 
Equal Employment Opportunity Commission, § 2-III(A)(1), (EEOC 2006) (adopting a materially 
identical test and indicating that said test was based on the Darden decision). 
It is important to note that the factors listed in Darden and Clackamas are not exhaustive and must 
be evaluated on a case-by-case basis. Other aspects of the relationship between the parties may affect 
the determination of whether an employer-employee relationship exists. Furthermore, not all or even 
a majority of the listed criteria need be met; however, the fact finder must weigh and compare a 
combination of the factors in analyzing the facts of each individual case. The determination must be 
based on all of the circumstances in the relationship between the parties, regardless of whether the 
parties refer to it as an employee or as an independent contractor relationship. See Clackamas, 538 
U.S. at 448-449; New Compliance Manual at § 2-III(A)(1). 
In Clackamas, the specific inquiry was whether four physicians, actively engaged in medical 
practice as shareholders, could be considered employees to determine whether the petitioner to 
qualify as an employer under the American with Disabilities Act of 1990 (ADA), which necessitates 
an employer have fifteen employees. The court cites to Darden that "We have often been asked to 
construe the meaning of 'employee' where the statute containing the term does not helpfully define 
it." Clackamas, 538 U.S. at 444, (citing Darden, 503 U.S. at 318, 322). The court found the 
regulatory definition to be circular in that the ADA defined an "employee" as "individual employed 
by the employer." Id. (citing 42 U.S.c. § 12111(4». Similarly, in Darden, where the court 
considered whether an insurance salesman was an independent contractor or an "employee" covered 
by the Employee Retirement Income Security Act of 1974 (ERISA), the court found the ERISA 
definition to be circular and adopted a common-law test to determine who would qualify as an 
"employee under ERISA. Id. (citing Darden, 503 U.S. at 323). In looking to Darden, the court 
stated, "as Darden reminds us, congressional silence often reflects an expectation that courts will 
look to the common law to fill gaps in statutory text, particularly when an undefined term has a 
settled meaning in common law. Congress has overridden judicial decisions that went beyond the 
common law." Id. at 447 (citing Darden, 503 U.S. at 324-325). 
Page 4 
accompanied by a Form ETA 750, Application for Alien 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 and timely? 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 October 17, 2008 denial, the primary 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. On appeal, the AAO has identified additional 
grounds of ineligibility as will be discussed in this decision. 
Section 203(b) of the Act states in pertinent part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. --
(A) In General. -- Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
The Clackamas court considered the common law definition of the master-servant relationship, 
which focuses on the master's control over the servant. The court cites to definition of "servant" in 
the Restatement (Second) of Agency § 2(2) (1958): "a servant is a person employed to perform 
services in the affairs of another and who with respect to the physical conduct in the performance of 
services is subject to the other's control or right to control." [d. at 448. The Restatement additionally 
lists factors for consideration when distinguishing between servants and independent contractors, 
"the first of which is 'the extent of control' that one may exercise over the details of the work of the 
other." [d. (citing § 220(2)(a». The court also looked to the EEOC's focus on control in Skidmore v. 
Swift & Co., 323 U.S. 134, 140 (1944) and that the EEOC considered an employer can hire and fire 
employees, assign tasks to employees and supervise their performance, can decide how the business' 
profits and losses are distributed. [d. at 449-450. 
2 On appeal, counsel submitted a brief but made no specific allegation of error in law or fact. 
Page 5 
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 Form ETA 750 was accepted for processing by any office within 
the employment system of the DOL. See 8 C.F.R. § 204.5(d). The petitioner must also demonstrate 
that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750 as certified 
by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 
(Act. Reg. Comm. 1977). 
Here, the Form ETA 750 was accepted on February 1, 2005. The proffered wage as stated on the 
Form ETA 750 is $80,000 per year. The Form ETA 750 states that the position requires a bachelor's 
degree in computer science, math, or engineering and five years experience in the job offered or the 
related occupation of systems analyst, programmer analyst, or computer professional. Alternatively, 
the petitioner will accept a master's degree in a relevant discipline and two years experience. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly 
submitted upon appeal.3 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. 
On the petition, the petitioner claimed to have been established in 2002 and to currently employ 240 
workers. According to the tax returns in the record, the petitioner's fiscal year is based on a calendar 
year. On the Form ETA 750B, signed by the beneficiary on January 11, 2005, the beneficiary 
claimed to have worked for the petitioner from December 2004 through the date that the Form ETA 
750B was signed. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
a Form ETA 750 establishes a priority date for any immigrant petition later based on the Form ETA 
750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. 
The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977); see also 8 
C.F.R. § 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 
J The submission of additional evidence on appeal is allowed by the instructions to the Form 1-
290B, which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(I). 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). 
Page 6 
of the circumstances affecting the petitioning business will be considered if the evidence warrants such 
consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS 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. 
The beneficiary's Forms W-2 for 2005 to 2007 show compensation received from the petitioner as 
shown in the table below. 
Year 
2005 
2006 
2007 
Beneficiary's actual 
Compensation 
Proffered wage Wage increase needed to 
pay the proffered wage 
Here, the petitioner has established that it paid the beneficiary wages less that the full proffered 
wage. Therefore, the petitioner must establish that it can pay the difference between the wages 
actually paid to the beneficiary and the proffered wage. 
If, as in this case, the petitioner does not establish that it employed and paid the beneficiary an 
amount at least equal to the proffered wage during the required period, USCIS 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 (1
st 
Cir. 
2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010). 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. Sa va , 632 F. Supp. 1049, 1054 
(S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984»; see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.c.P. Food 
Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 
1982), aff'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross receipts and wage 
expense is misplaced. Showing that the petitioner's gross receipts exceeded the proffered wage is 
insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is 
insufficient. 
In K.c.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and 
Naturalization Service, now USCIS, had properly relied on the petitioner's net income figure, as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 
The court specifically rejected the argument that USCIS should have considered income before 
expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 
(gross profits overstate an employer's ability to pay because it ignores other necessary expenses). 
Page 7 
With respect to depreciation, the court in River Street Donuts 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. "[USCrS] 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 support." Chi-Feng Chang at 
537 (emphasis added). 
For a C corporation, uscrs considers net income to be the figure shown on Line 28 of the Form 
1120, U.S. Corporation Income Tax Return. The petitioner's 2007 federal income tax return was the 
most recent return available. 
The petitioner's tax returns demonstrate its net income as detailed in the table below. 
2005 2006 2007 
Net income 
Here, while the petitioner can establish its ability to pay for the instant beneficiary in tax years 2005 
through 2007, we are unable to conclude that the petitioner's net income is sufficient to satisfy the 
proffered wage to all of the sponsored beneficiaries in each of the relevant years. 
The petitioner submitted 83 Forms W-2 for 2005; 168 Forms W-2 for 2006; and 213 Forms W-2 for 
2007. However, the petitioner does not indicate whether the submitted Forms W-2 include only 
sponsored beneficiaries or all employees. Also, no evidence was submitted to show the proffered wage 
for sponsored beneficiaries. Given the unclear status of the individuals listed on the petitioner's 
documentation, and the much larger number of additional petitions indicated by the USCIS records, 
the petitioner has failed to establish that it can pay the difference between the actual wages 
Page 9 
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 discretion, consider evidence relevant to the petitioner's 
financial ability that falls outside of a petitioner's net income and net current assets. USCIS 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. 
The AAO recognizes that the petitioner has been in business since 2002. While the evidence in the 
record demonstrates relatively high gross receipts and wages paid to all employees, the petitioner has 
filed at least 1,400 immigrant and non-immigrant petitions since the priority date. Nevertheless, 
unlike Sonegawa, the petitioner has not submitted any evidence, reflecting the company's reputation 
or historical growth since its inception in 2002. Nor has it included any evidence or detailed 
explanation of the corporation's milestone achievements. Finally, the presence of so many 
simultaneously pending immigrant and nonimmigrant petitions in light of its modest business size 
(240 employees) calls into question its ability to pay the proffered wage to the beneficiary. The job 
offer does not appear realistic, evaluating the totality of the circumstances. 
Based on the above, the evidence submitted does not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date. 
Beyond the decision of the director,s the petition may not be approved because it is concluded that the 
labor certification is not valid for the area of intended employment stated on the petition. 
The DOL regulation, in effect at the time the petition was filed, at 20 C.F.R. § 656.30(c)(2) states 
that: 
A labor certification involving a specific job offer is valid only for the particular job 
opportunity and for the area of intended employment stated on the Application for 
S An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003). 
Page 10 
Alien Employment Certification form. 
In the instant case, the certified Form ETA 750 states that the beneficiary will be employed in 
However, the Form 1-140 states that the beneficiary will be employed in 
and various unanticipated locations throughout the USA." A labor 
certification is only for the specific job offer in the area of intended employment described on 
the application form. See 20 C.F.R. § 656.30(c)(2). USCIS must determine whether the job offered 
on the petition is the same as the job described in the labor certification. If the worksite of the 
offered position is not in the same Metropolitan Statistical Area (MSA) as the worksite specified on 
the labor certification, then the petition will be denied. Here, 
• are in different MSAs. Accordingly, it is concluded that there has been a material change in the 
location of the job opportunity, and the petition cannot be approved for this reason.
6 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the 
proffered wage beginning on the priority date. Additionally, the labor certification is not valid for 
the area of intended employment stated on the petition. The petition will be denied for the above 
stated reasons, with each considered as an independent and alternative basis for denial. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
6 According to the Rhode Island Office of the Secretary of State's website, the petitioner's corporate 
status in Rhode Island was revoked on October 7,2005. Therefore, even if the Form ETA 750 was 
valid for the Form 1-140 as an "unanticipated location," there is currently no job offer in Rhode 
Island.