dismissed EB-2 Case: Computer Science

INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland S(>Curity 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W., MS 2090 
Washinglon. DC 20529-20q0 
FILE: 
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. § IIS3(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 your 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 1-290B, 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. 
P Rhew 
Chief, Administrative Appeals Office 
www.uscis.go\' 
Page II 
dated August 6, 2008 and is signed by "Lie. Tesla Human Resources Manager." The letter is 
in English. It states that the beneficiary worked the_ 
•• iII ••••• vouched for her performance but failed to describe her duties and her job title. 
dates of employment for the 
second letter from 
is signed by _ 
the beneficiary was an 
He describes her duties and states 
status was IS no has been offered to resolve the 
discrepant dates of employment given by this employer in each of the two letters written three 
months apart. Further, neither letter verifies that the beneficiary possesses the specific other 
computer skills required on H.14 of the labor certification. Additionally, neither letter indicates 
whether the beneficiary's employment was full-time or part-time, particularly given that she was a 
student during most of the claimed period of employment. It is incumbent on the petitioner to 
resolve any inconsistencies in the record by independent objective evidence, and attempts to explain 
or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, 
in fact, lies, will not suffice. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
Finally, the regulation requires five years of progressive experience following the acquisition of a 
baccalaureate to be considered as to an advanced degree. Even if the beneficiary's 
certificate as a 
~as considered to be the U.S. eqnivalent of a as ad,iresse:d 
above, it is not, without identifying the specific date in 2002 in which she acquired the credential, it 
is not possible to calculate whether the beneficiary had five years of progressive experience by the 
priority date of November 8, 2007.7 
Because the beneficiary has neither (1) a U.S. baccalaureate degree or foreign equivalent degree 
followed by five years of progressive experience in the specialty nor (2) a U.S. master's degree or 
foreign equivalent degree followed by two years of experience, she does not qualify for preference 
visa classification as an advanced degree professional under section 203(b )(2) of the Act. 
The evidence submitted does not establish that the ETA Form 9089 requires a professional holding 
an advanced degree or an alien of exceptional ability. Further, the record does not establish that the 
beneficiary possesses an advanced degree or its foreign equivalent. 
With regard to the petitioner's continuing ability to pay the proffered wage, the regulation at 8 
C.F.R. § 204.5(g)(2) states, in pertinent part: 
Abilitv of" prospective employer to pay wage. 
employment-based immigrant which requires 
Any petItIon filed by or for an 
an offer of employment must be 
7 Additionally, as noted above, the labor certification failed to state the required regulatory 
alternative to a Master's degree of a bachelor's degree and five years of progressive experience. 
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 retums, or audited financial statements. 
As noted above, the petitioner must demonstrate the continuing ability to pay the proffered wage of 
$50,232 beginning On the priority date. 
The evidence in the record of proceeding shows that the petitioner is stmctured as a C corporation. 
On the petition, the petitioner claimed to have been established on January 1, 1975, to have a gross 
annual income of $20,000,000, and to currently employ 75 workers. According to the tax returns in 
the record, the petitioner" s fiscal year mns from April 1"' to March 31"' of the following year. On the 
ETA Form 9089, signed by the beneficiary on March 21, 2008, the beneficiary did not claim to have 
worked for the petitioner, however, as noted above, in a subsequently sigoed document related to her 
application for advanced parole, she claims to have worked for the petitioner from June 2008 to June 
2009. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition 
later based on the ETA Form 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. 
Comm. 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 overall 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 detennining 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. In the instant case, the petitioner has not established 
that it employed and paid the beneficiary the full proffered wage or any wages from the priority date 
of November 8, 2007. No evidence of compensation paid to the beneficiary has been submitted. 
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, uscrs will next examine the net income figure reflected 
on the petitioner's federal income tax retum, without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d III (l st Cir. 2009); Taco Especial v. 
Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010). Reliance on federal income tax retums as a 
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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 l305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. 17lOrnburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.c.P. Food Co., Ine. v. Sava, 623 F. 
Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp, 647 (N,D. Ill. 1982), a}I'd, 703 F.2d 
571 (7th Cir. 1983). Reliance on the petitioner's gross sales and profits and wage expense is 
misplaced. Showing that the petitioner's gross sales and profits 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 CIS. 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 the Service 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). 
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. "[USCIS I and judicial precedent support the use of tax returns and the 
net income .ligures 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). 
On appeal, the petitioner has submitted a copy of its 2006 Form 1120, U.S. Corporation Income Tax 
Retum. It indicates that the petitioner's fiscal year runs from April 1, 2006 to March 31, 2007. The 
tax return reflects that the petitioner declared $483,124 in net incorne.s Besides net income, and as an 
alternative method to review a petitioner's ability to pay, USCIS will examine a petitioner's net 
current assets. Net current assets are the difference between the petitioner's current assets and current 
liabilities.9 It represents a measure of liquidity during a given period and a possible resource out of 
which the proffered wage may be paid for that period. In this case, the corporate petitioner's year­
end current assets and current liabilities are shown on Schedule L of its federal tax returns. Current 
assets are shown on line(s) I through 6 of Schedule L and current liabilities are shown on line(s) 16 
through 18. If a corporation's end-of-year net current assets are equal to or greater than the proffered 
wage. the corporate petitioner is expected to be able to pay the proffered wage out of those net current 
assets. IO The petitioner's net current assets stated on its 2006 Form 1120 is $1,080,944. 
It must be noted that the petitioner has never submitted any fmancial information covering the 
priority date of November 8, 2007 onward. The petitioner provided copies of reviewed financial 
statements as of March 31, 2007 and March 31, 2006 in response to the director's request for 
evidence. The director noted that as they were not audited, the petitioner had not provided the 
documentation required by the regulation at 8 C.F.R. § 204.5(g)(2). The regulation at 8 C.F.R. 
§ 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its 
ability to pay the proffered wage, those financial statements must be audited. An audit is conducted 
in accordance with generally accepted auditing standards to obtain a reasonable assurance that the 
financial statements of the business are free of material misstatements. The unaudited financial 
statements that counsel submitted with the petition are not persuasive evidence. They represent the 
SThe petitioner is a C corporation. For the purpose of this review of the petitioner's Form 1120 
corporate tax returns, the petitioner's net income is found on line 28 (taxable income before net 
operating loss deduction and special deductions). uscrs uses a corporate petitioner's taxable 
income before the net operating loss deduction as a basis to evaluate its ability to pay the proffered 
wage in the year of filing the tax return because it represents the net total after consideration of both 
the petitioner's total income (including gross profit and gross receipts or sales), as well as the 
expenses and other deductions taken on line(s) 12 through 27 of page 1 of the corporate tax return. 
Because corporate petitioners may claim a loss in a year other than the year in which it was incurred 
as a net operating loss, USCIS examines a petitioner's taxable income before the net operating loss 
deduction in order to determine whether the petitioner had sufficient taxable income in the year of 
filing the tax return to pay the proffered wage. 
9 According to Barron's Dictionary of Accounting Temls 117 (3,d ed. 2000), "current assets" consist 
of items having (in most cases) a life of one year or less, such as cash, marketable securities, 
inventory and prepaid expenses. "Current liabilities" are obligations payable (in most cases) within 
one year, such accounts payable, short-term notes payable, and accrued expenses (such as taxes and 
salaries). Id. at 118. 
IDA petitioner's total assets and total liabilities are not considered in this calculation because they 
include assets and liabilities that, (in most cases) have a life of more than one year and would also 
include assets that would not be converted to cash during the ordinary course of business and will 
not, therefore, hecome funds available to pay the proffered wage. 
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unsupported representations of management and are not probative of the petitioner's ability to pay 
the proffered wage. 
It is additionally noted that the petitioner states on appeal that the 2007 tax return will be submitted, 
but as of this date, this office has received nothing further. Therefore, as the record does not contain 
the petitioner's 2007 tax return, or any other evidence from the November 8, 2007 priority date 
onward, the petitioner has not established that it had the continuing ability to pay the beneficiary the 
proffered wage through an examination of wages paid to the beneficiary. or its net income or net 
current assets. 
In some cases, USClS 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 
I&N Dec. 612 (BIA 1967). The petitioning entity in Sonegawa had been in business for over II 
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 SOllegawa, 
USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability such as 
the number of years the petitioner has been doing business, the established historical growth of the 
petitioner's business, and the overall number of employees. 
Although the petitioner appears to be a long-standing profitable operation, as noted above, however, 
the record contains no financial evidence that covers the priority date of November 8, 2007 onward. 
In this context, we cannot conclude that the petitioner has established that it had the colllinuing 
ability to pay the proffered wage as of the priority date. 
Therefore, the petitioner has not demonstrated that the job offered on the labor certification requires 
a member of the professions holding an advanced degree or an alien of exccptional ability as 
indicated on the Form 1-140, Immigrant Petition for Alien Worker or that the beneficiary possessed 
such an advanced degree or its equivalent, or that it has established its continuing ability to pay the 
proffered wage from the priority date onward. 
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.