dismissed EB-2 Case: Computer Systems

identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnva£Y 
fl1BUC COP~ 
FILE: 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: SEP 2 1 2010 
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$585. 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. 
/; . 
... 0:; 
rryRhew O~/ 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a network and computer systems services company. It seeks to employ the beneficiary 
pennanentiy in the United States as a network and computer systems administrator pursuant to section 
203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(2). As required by 
statute, a Fonn ETA 750 Application for Alien Employment Certification approved by the 
Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the director 
detennined that the beneficiary did not submit evidence to show that the beneficiary had the 
minimum level of education stated on the labor certification or the required experience as of the date 
of the labor certification, and that the petitioner did not demonstrate its ability to pay the proffered 
wage from the time the labor certification was accepted onwards. 
The record shows that the appeal is properly filed and 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. 
In pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The 
regulation further states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." !d. 
The AAO conducts appellate review on a de novo basis. See Solfane 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 
·tioner submitted for the first time the beneficiary's diploma from •••• 
demonstrating that he holds a Master of Science in Infonnation Systems. 
The petitioner also provided the corresponding transcripts. 
As noted above, the Fonn ETA 750 in this matter is certified by DOL. DOL's role is limited to 
detennining whether there are sufficient workers who are able, willing, qualified and available and 
whether the employment of the alien will adversely affect the wages and working conditions of workers 
in the United States similarly employed. S'ection 212(a)(5)(A)(i) ofthe Act; 20 C.F.R. § 656.1(a). 
1 The submission of additional evidence on appeal is allowed by the instructions to the Fonn I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2( a) (1 ). The record in 
the instant case provides no reason to preclude consideration of any of the documents newly 
submitted on appeal. See Matter a/Soriano, 19 I&N Dec. 764 (BIA 1988). 
-Page 3 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. § 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.c. Cir. 1983). 
Rather, the AAO is 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 
NL.R.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987) (administrative 
agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. 
Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the AP A, even 
when they are published in private publications or widely circulated). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.c. §1153(a)(3) as amended in 1976. At that time, this section provided: 
Visas shall next be made available ... to qualified immigrants who are members of 
the professions .... 
The Act added section 203(b)(2)(A) of the Act, 8 U.S.c. §1153(b)(2)(A), which provides: 
Visas shall be made available . . . to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent .... 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244, is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, 101 st Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at *6786 (Oct. 26, 1990). 
In 1991, when the final rule for 8 C.F.R. § 204.5 was published in the Federal Register, the 
Immigration and Naturalization Service (the Service), responded to criticism that the regulation 
required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for 
the substitution of experience for education. After reviewing section 121 of the Immigration Act of 
1990, Pub. L. 101-649 (1990), and the Joint Explanatory Statement of the Committee of Conference, 
the Service specifically noted that both the Act and the legislative history indicate that an alien must 
have at least a bachelor's degree: 
Page 4 
The Act states that, in order to qualify under the second classification, alien members 
of the professions must hold "advanced degrees or their equivalent." As the 
legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's 
degree with at least five years progressive experience in the professions." Because 
neither the Act nor its legislative history indicates that bachelor's or advanced degrees 
must be United States degrees, the Service will recognize foreign equivalent degrees. 
But both the Act and its legislative history make clear that, in order to qualify as a 
professional under the third classification or to have experience equating to an 
advanced degree under the second, an alien must have at least a bachelor's degree. 
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis added). 
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree." For classification as a member of the 
professions, the regulation at 8 C.F.R. § 204.5(l)(3)(ii)(C) requires the submission of "an official 
college or university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study." We cannot conclude that the evidence required to demonstrate that an alien 
is an advanced degree professional is any less than the evidence required to show that the alien is a 
professional. To do so would undermine the congressionally mandated classification scheme by 
allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the 
commentary accompanying the proposed advanced degree professional regulation specifically states 
that a "baccalaureate means a bachelor's degree received from a college or university, or an 
equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Cf 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) (relating to aliens of exceptional ability requiring the submission of "an official 
academic record showing that the alien has a degree, diploma, certificate or similar award from a 
college, university, school or other institution of learning relating to the area of exceptional ability"). 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
[J]t appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to 
determining if the alien is qualified for the job for which he seeks sixth preference 
status. That determination appears to be delegated to the INS under section 204(b), 
8 U.S.C. § 1154(b), as one of the determinations incident to the INS's decision 
whether the alien is entitled to sixth preference status. 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 
Page 5 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on Form ETA 750A Part 14. This section of 
the application for alien labor certification, describes the minimum education, training, and 
experience required for the position. It is important that the Form ETA 750 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. The only rational manner by which 
USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job 
in a labor certification is to examine the certified job offer exactly as it is completed by the 
prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. USCIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
In this matter, Part 14 of the labor certification reflects that six years of college, culminating in a 
Master's degree in Information Systems, is the minimum level of education required in combination 
with one year of experience in the position offered as a network and computer systems administrator. 
The priority date is February 23, 2005. The beneficiary's U.S. Master's degree in Information 
Systems, issued in August 2003 by Southfield, Michigan, 
demonstrates that the beneficiary meets reqUIrements certification. As a 
result, that portion of the director's decision is withdrawn. 
The petitioner must also demonstrate that the beneficiary had the requisite one year of experience in 
the position offered. The beneficiary stated his experience on Form ETA 750 as employment with 
the petitioner starting February 2002 to the present (the date the labor certification was signed, 
January 28, 2005).2 He states that his position was "computer maintenance, repair, sales engineer." 
2 This date conflicts with a letter from the petitioner that it has employed the beneficiary since 2001. 
"It is incumbent on the petitioner to resolve any inconsistencies in the record by independent 
He states that he was also employed from April 1996 to April 1998 with 
The labor certification states that the one year of experience 
should be as a network and computer systems administrator and does not provide for experience in 
any related occupation. For the first time on appeal, the petitioner submitted a letter from •••• 
CEO of Arcstar, stating that the beneficiary worked with that company as a computer and network 
engineer. That letter does not provide the dates of the beneficiary's employment nor does it state 
whether the beneficiary was employed in a full-time or part-time capacity. Additionally, the 
beneficiary failed to list this experience on Form ETA 750B. See Matter of Leung, 16 I&N Dec. 
2530 (BIA 1976) (the BIA in dicta notes that the beneficiary's experience, without such fact certified 
by DOL on the beneficiary's Form ETA 750, lessens the credibility of the evidence and facts 
asserted). 
The petitioner also submitted a chart from Department Manager for Aurora 
Corporation Information System, stating that the beneficiary was employed from April 24, 1996 to 
March 31, 1998 as a "Technician." The letter does not state whether the employment was in a full­
time or part-time position nor does it state that the beneficiary's experience was as a network and 
computer systems administrator to meet the position's experience requirements. 
The petitioner also submitted an offer of employment and a letter verifying the beneficiary's 
employment as a contractor from October 1, 2007 to October 1, 2008. This is after the priority date. 
The petitioner's letter dated May 20, 2007 and submitted with the Form 1-140 states that the 
beneficiary has been employed with the petitioner since 2001. However, as the company was just 
formed in 2001, it is unclear that his experience with the petitioner was full-time or part-time from 
this date onward. The petitioner's assertion of employment from this date is not verified by any W-2 
statements. The petitioner's letter states that the beneficiary worked as a web developer for the 
international office at from April 1999 to September 1999 and as operational 
system administrator at from 1998 to April 1999. This experience is not on the 
labor certification, see Matter of Leung, 16 I&N Dec. 2530, and it is not verified by the former 
employer. The beneficiary must have the required qualifications by the priority date of the Form 
ETA 750. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). As a result, 
the petitioner failed to submit sufficient evidence demonstrating that the beneficiary had the required 
one year of experience as a network and computer systems administrator as of the date the labor 
certification was accepted by DOL. 
As a result, we are unable to conclude that the beneficiary had the necessary one year of prior 
experience at the time the labor certification was accepted by the DOL 
With regards to the petitioner's ability to pay the proffered wage, the regulation at 8 C.F.R. 
§ 204.5(g)(2) states in pertinent part: 
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." Matter of Ho, 19 I&N 
Dec. 582, 591-592 (BIA 1988). 
Page 7 
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 Form ETA 750, Application for Alien Employment Certification, 
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, Application for Alien Employment Certification, 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 23, 2005. The proffered wage as stated on the 
Form ETA 750 is $61,110 per year. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. 
On the petition, the petitioner claimed to have been established in 2001 and to currently employ 
three workers. According to the tax returns in the record, the petitioner's fiscal year is based on the 
calendar year. On the Form ETA 750B, signed by the beneficiary on January 28, 2005, the 
beneficiary claimed to have begun working for the petitioner in February 2002. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition 
later based on the ETA 750, the petitioner must establish that the job offer was realistic as of the 
priority date and that the offer remained realistic for each year thereafter, until the beneficiary 
obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential 
element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 
(Acting Reg. Comm. 1977); see also 8 C.F.R. § 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 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 petitiooer 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 petitioner provided the following Form W-2s:3 
3 The petitioner also submitted the 2004 Form W -2 for the beneficiary showing that the beneficiary 
Page 8 
• The 2005 Fonn W -2 shows that the petitioner paid the beneficiary $31,200. 
• The 2006 Fonn W-2 shows that the petitioner paid the beneficiary $37,440. 
• Paystubs from 2007 show that the petitioner paid the beneficiary $10,920 through April 1, 
2007. 
These amounts are not equal to or greater than the proffered wage. As a result, the petitioner must 
show that it had the ability to pay the difference between the actual wage paid and the proffered 
wage. In 2005, this amount is $29,910 and in 2006, the amount is $23,670. 
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, 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 sl Cir. 2009). Reliance on federal 
income tax returns as a basis for detennining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 
(S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984»; see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.CP. 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.CP. Food Co., Inc. v. Sa va , 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. 
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-tenn asset and does not represent a specific cash expenditure 
during the year claimed. Furthennore, the AAO indicated that the allocation of the 
depreciation of a long-tenn 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 
was paid $34,190, however, that Fonn concerns a time before the priority date and will thus be 
considered only generally. 
Page 9 
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, 558 F.3d at 116. "[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 support." Chi-Feng 
Chang, 719 F.Supp. at 537 (emphasis added). 
The record before the director closed on June 27, 2007 with the receipt by the director of the 
petitioner's original submissions. As of that date, the most current tax return available was the 
petitioner's 2006 federal tax return. The petitioner submitted its 2007 tax return on appeal. 4 
• In 2005, the Form 1120S stated net income5 of$21,670. 
• In 2006, the Form 1120S stated net income of$5,205. 
• In 2007, the Form 1120S stated net income of -$19,372. 
Therefore, the petitioner's net income was insufficient to demonstrate its ability to pay the difference 
between the actual wage paid and the proffered wage in 2005,2006, or 2007. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may 
review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities.6 A corporation's year-end current assets are shown 
4 The petitioner also submitted its 2004 tax return but as that tax return covers time before the 
priority date, it will be considered only generally. 
5 Where an S corporation's income is exclusively from a trade or business, USCIS considers net 
income to be the figure for ordinary income, shown on line 21 of page one of the petitioner's IRS 
Form 1120S. However, where an S corporation has income, credits, deductions or other adjustments 
from sources other than a trade or business, they are reported on Schedule K. If the Schedule K has 
relevant entries for additional income, credits, deductions or other adjustments, net income is found 
on line 23 (1997-2003), line 17e (2004-2005), or line 18 (2006) of Schedule K. See Instructions for 
Form 1120S, 2008, at http://www.irs.gov/pub/irs-pdfIiI120s.pdf (accessed November 3, 2009) 
(indicating that Schedule K is a summary schedule of all shareholder's shares of the corporation's 
income, deductions, credits, etc.). Because the petitioner had additional adjustments shown on its 
Schedule K for all of the years at issue, the petitioner's net income is found on Schedule K of its tax 
returns. 
6 According to Barron's Dictionary of Accounting Terms 117 (3rd 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 
Page 10 
on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. 
If the total of a corporation's end-of-year net current assets and the wages paid to the beneficiary (if 
any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage using those net current assets. On IRS Fonn 1120S, corporations with total receipts 
(line la plus lines 4 and 5 on page 1) and total assets at the end of the tax year less than $250,000 are 
not required to complete Schedules L and M-l if the "Yes" box on Schedule K, question 9, is 
checked. See http://www.irs.gov/instructions/i1120s (accessed August 30, 2010). Here, the 
petitioner's total assets are less than $250,000 and the petitioner checked "yes" to question 9. 
Therefore, the petitioner is unable to demonstrate sufficient net current assets to pay the difference 
between the actual wage paid and the proffered wage in 2005,2006 or 2007. 
Therefore, from the date the Fonn ETA 750 was accepted for processing by the DOL, the petitioner 
had not established that it had the continuing ability to pay the beneficiary the proffered wage as of 
the priority date througl} an examination of wages paid to the beneficiary, or its net income or net 
current assets. 
On appeal, the petitioner submitted a letter dated April 26, 2008 from Charter One bank, which 
contains the petitioner's balance in a checking account and money market account as of that date. 
Counsel's reliance on the balance in the petitioner's bank account is misplaced. First, bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required 
to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional 
material "in appropriate cases," the petitioner in this case has not demonstrated why the 
documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise paints an inaccurate 
financial picture of the petitioner. Second, bank statements show the amount in an account on a 
given date, and cannot show the sustainable ability to pay a proffered wage. Third, as the petitioner 
did not complete Schedule L of its tax returns, we are unable to detennine whether the available cash 
would offset liabilities or be required to pay other liabilities in this matter. We cannot conclude that 
the cash would be available in the absence ofinfonnation about the petitioner's liabilities. 
In addition, the petitioner provided infonnation concerning the assets of the petitioning entity's 
owner including a mortgage statement and appraisal of the mortgaged property. Because a 
corporation is a separate and distinct legal entity from its owners and shareholders, the assets of its 
shareholders or of other enterprises or corporations cannot be considered in detennining the 
petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, 
Ltd., 17 I&N Dec. 530 (Comm. 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 
22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. § 204.5, 
pennits [USCIS] to consider the financial resources of individuals or entities who have no legal 
obligation to pay the wage." 
one year, such accounts payable, short-tenn notes payable, and accrued expenses (such as taxes and 
salaries). Id. at 118. 
· .' 
-Page 11 
On appeal, the petitioner explained that its income will increase from two consulting projects in 
2008 and that it "plan[s] to obtain a couple projects related to [current] projects from business size 
companies from either Taiwan or China." The petitioner must establish eligibility at the time of 
filing. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). The petitioner submitted a contract 
for 2007/ however, despite this contract, the petitioner showed negative net income for that year. 
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 of Sonegawa, 12 I&N Dec. 612 
(BIA 1967). 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 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. 
In the instant case, the petitioner submitted no evidence to liken its situation to the one in Sonegawa. 
Any increase in the petitioner's income in 2008 has no bearing upon the petitioner's ability to pay 
the proffered wage from the 2005 priority date onward. The tax returns in the record demonstrate 
minimal gross receipts of $47,956 in 2004, $69,914 in 2005, $55,947 in 2006, and $49,675 in 2007, 
~hich is less than the proffered wage in three of four years. The petitioner's net income for two of 
those years was negative and the only salary paid in 2005 ($31,200) and 2006 ($37,440) was the 
7 The contract in the record seems to be a translation of a Chinese language document, however the 
translation did not comply with the terms of 8 C.F.R. § 1 03.2(b )(3): 
Translations. Any document containing foreign language submitted to [USCIS] shall 
be accompanied by a full English language translation which the translator has 
certified as complete and accurate, and by the translator's certification that he or she 
is competent to translate from the foreign language into English. 
No certification appears in the record. 
· .. 
-Page 12 
beneficiary's salary. In addition, the petitioner failed to demonstrate its reputation in the industry 
similar to the situation presented in Sonegawa. 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. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.