dismissed EB-2 Case: Information Technology

(b)(6)
DATE: JUN 0 6 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 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 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.ER. § 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. 
Thank you, 
cro 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The 
petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on April 17, 2012, 
the AAO dismissed the appeal. Counsel filed a motion to reconsider the AAO's decision in 
accordance with 8 C.F.R. § 103.5. The motion will be granted, the previous decision of the AAO will 
be affirmed, and the petition will remain denied. 
The petitioner describes itself as an IT consulting company. It seeks to permanently employ the 
beneficiary in the United States as a system analyst. The petitioner requests classification of the 
beneficiary as an advanced degree professional 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, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the U.S. Department of 
Labor (DOL). The priority date of the petition, which is the date the DOL accepted the labor 
certification for processing, is July 19, 2006. See 
8 C.P.R.§ 204.5(d). 
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. 
The AAO decision 
dismissing the petitioner's appeal concluded that the beneficiary did not have a 
foreign degree that was the equivalent of a U.S. bachelor's degree, 1 therefore the beneficiary did not 
possess the education required by the advanced degree professional classification2 and did not meet 
1 The record contains copies of the diploma and transcripts for the beneficiary's three-year Bachelor 
of Commerce degree from India and a postgraduate diploma from the 
, India. During the adjudication of the appeal, the AAO consulted 
the Electronic Database for Global Education (EDGE). See http://aacraoedge.aacrao.org/index.php. 
According to EDGE, a three-year Bachelor of Commerce from India is comparable to three years of 
university study in the United States. EDGE also states that a postgraduate diploma from India 
following a three-year bachelor's degree is comparable to a U.S. bachelor's degree if it is issued by 
an accredited university or institution approved by the All-India Council for Technical Education 
(AICTE) and that at least a three-year bachelor's degree was required for admission. Counsel does 
not claim that the beneficiary's postgraduate diploma from India is issued by an accredited university 
or institution approved by AICTE or that a three-year bachelor's degree was required for admission. 
2 Section 203(b )(2) of the Act, 8 U.S.C. § 1153(b )(2), 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.P.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. 
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the terms of the labor certification.3 The AAO also concluded that the petitioner failed to establish 
its continuing ability to pay the proffered wage from the priority date of the petition pursuant to 8 
C.P.R. § 204.5(g)(2). 
On motion to reconsider, 4 counsel's brief claims that: 
• The AAO inappropriately relied on Matter of Shah, 17 I&N Dec. 244 (Regl Comm 'r. 1977), 
in concluding that a four-year U.S. degree is required for classification as an advanced degree 
professional. 
• The AAO engaged in unauthorized rulemaking by concluding that the beneficairy's 
postgraduate diploma (which was not issued by an accredited university or institution 
approved by AICTE) is not equivalent to a U.S. bachelor's degree. 
• The DOL, not USCIS, has the authority to determine whether or not the beneficiary meets 
the minimum requirements of the labor certification. 
• USCIS cannot conclude that a beneficiary of a labor certification does not meet the minimum 
requirements of the offered position because the labor certification is drafted with the 
specific beneficiary in mind. 
• The beneficairy meets the minimum requirements of the labor certification because the labor 
certification indicates that the petitioner will accept a foreign educational equivalent to the 
required degree. 
• The AAO failed to consider Construction and Design Co. v. USCIS, 563 F.3d 593 (ih Cir. 
2009) in the decision dismissing the appeal. 
Counsel's claims are discussed below. 
3 The beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's 
Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg. Comm. 1971). Part H of the labor certification requires a bachelor's degree in 
computer science, mathematics, engineering or MIS (or a foreign educational equivalent) and five 
years of experience in the job offered. 
4 The regulation at 8 C.P.R.§ 103.5(a)(3) states: 
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 [U.S. Citizenship and 
Immigration Services (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. 
The motion to reconsider in the instant case meets the requirements of 8 C.P.R. § 103.5(a)(3), and the 
motion is therefore granted. 
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The AAO inappropriately relied on Matter of Shah in concluding that a four-year degree is required 
for classification as an advanced degree professional. 
Matter of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 1977), states that a baccalaureate degree is 
generally found to require four years of education. The AAO does not solely rely on Matter of Shah 
to conclude that a four-year U.S. bachelor's degree, or foreign equivalent degree, is required for 
classification as an advanced degree professional. 
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, 101s1 Cong., 
2nct 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: 
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). 
There is no provision in the statute or the regulations that would allow a beneficiary to qualify under 
section 203(b )(2) of the Act as a member of the professions holding an advanced degree with 
anything less than a full baccalaureate degree. In order to have experience and education equating to 
an advanced degree under section 203(b )(2) of the Act, the beneficiary must have a single degree 
that is the "foreign equivalent degree" to a United States baccalaureate degree. 8 C.F.R. 
§ 204.5(k)(2). As explained in the preamble to the final rule, persons who claim to qualify for an 
immigrant visa by virtue of education or experience equating to a bachelor's degree may qualify for a 
visa pursuant to section 203(b )(3)(A)(i) of the Act as a skilled worker with more than two years of 
training and experience. 56 Fed. Reg. at 60900. 
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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(1)(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." 
The AAO will not 
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). Compare 8 C.P.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"). 
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court 
held that, in professional and advanced degree professional cases, where the beneficiary is statutorily 
required to hold a baccalaureate degree, USCIS properly concluded that a single foreign degree or its 
equivalent is required. See also Maramjaya v. USCIS, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 
2008)(for professional classification, USCIS regulations require the beneficiary to possess a single four­
year U.S. bachelor's degree or foreign equivalent degree). 
Thus, the plain meaning of the Act and the regulations is that the beneficiary of a petition for a 
professional must possess a degree from a college or university that is at least a U.S. baccalaureate 
degree or a foreign equivalent degree. Because the beneficiary does not have a "United States 
baccalaureate degree or a foreign equivalent degree," the beneficiary does not qualify for preference 
visa classification under section 203(b )(2) of the Act as he does not have the minimum level of 
education required for the equivalent of an advanced degree. 
The AAO does not rely on Matter of Shah to conclude that the beneficiary must have a U.S. 
bachelor's degree from a college or university (or a foreign equivalent degree) in order to meet the 
requirements of the requested classification. Accoringly, counsel's claim that the AAO 
inappropriately relied on Matter of Shah to dismiss the appeal is rejected. 
The AAO engaged in unauthorized rulemaking by concluding that the beneficairy's postgraduate 
. diploma (which was not issued by an accredited university or institution approved by AICTE) is not 
equivalent to a U.S. bachelor's degree. 
In its decision dismissing the appeal, the AAO reviewed EDGE created by the American Association 
of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, AACRAO 
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is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions 
and registration professionals who represent more than 2,600 institutions and agencies in the United 
States and in over 40 countries around the world." See http://www.aacrao.org/About­
AACRAO.aspx. Its mission "is to serve and advance higher education by providing leadership in 
academic and enrollment services." !d. EDGE is "a web-based resource for the evaluation of 
foreign educational credentials." See http://edge.aacrao.org/info.php. Authors for EDGE are not 
merely expressing their personal opinions. Rather, they must work with a publication consultant and 
a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational 
Credentials.5 If placement recommendations are included, the Council Liaison works with the 
author to give feedback and the publication is subject to final review by the entire Council. Id. 
USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign 
credentials equivalencies. 6 Therefore, counsel's claim that the AAO is engaging in rulemaking by 
consulting EDGE is rejected. 
The DOL, not USCIS, has the authority to determine whether or not the beneficiary meets the 
minimum requirements of the labor certification. 
The AAO rejects counsel's claim 
that USCIS does not have authority to determine whether or not the 
beneficiary meets the minimum requirements of the labor certification. As noted above, the labor 
certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 
212(a)(5)(A)(i) of the Act, which provides: 
Any alien who seeks to enter the United States for the purpose of performing skilled or 
unskilled labor is inadmissible, unless the Secretary of Labor has determined and 
certified to the Secretary of State and the Attorney General that-
5 See An Author's Guide to Creating AACRAO International Publications available at 
http://www.aacrao.org/Libraries/Publications_Documents/GUIDE_TO_CREATING_INTERNATIO 
NAL PUBLICATIONS l.sflb.ashx. 
6 In Confluence Intern.,- Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court 
determined that the AAO provided a rational explanation for its reliance on information provided 
by 
AACRAO to support its decision. In Tiseo Group, Inc. v. Napolitano, 2010 WL 3464314 
(E.D.Mich. August 30, 2010), the court found that USCIS had properly weighed the evaluations 
submitted and the information obtained from EDGE to conclude that the alien's three-year foreign 
"baccalaureate" and foreign "Master's" degree were only comparable to a U.S. bachelor's degree. In 
Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld a 
USCIS determination that the alien's three-year bachelor's degree was not a foreign equivalent 
degree to a U.S. bachelor's degree. Specifically, the court concluded that USCIS was entitled to 
prefer the information in EDGE and did not abuse its discretion in reaching its conclusion. The 
court also noted that the labor certification itself required a degree and did not allow for the 
combination of education and experience. 
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(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time 
of application for a visa and admission to the United States and at the place 
where the alien is to perform such skilled or unskilled labor, and 
{ll) the employment of such alien will not adversely affect the wages and 
working conditions of workers in the United States similarly employed. 
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing 
these duties under 20 C.P.R. § 656, involve a determination as to whether the position and the alien are 
qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit 
courts: 
There is no doubt that the authority to make preference classification decisions rests 
with INS. The language of section 204 cannot be read otherwise. See Castaneda­
Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority 
to make the two determinations listed in section 212(a)(14).7 Id. at 423. The 
necessary result of these two grants of authority is that section 212(a)(14) 
determinations are not subject to review by INS absent fraud or willful 
misrepresentation, but all matters relating to preference classification eligibility not 
expressly delegated to DOL remain within INS' authority. 
Given the language of the Act, the totality of the legislative history, and the agencies' 
own interpretations of their duties under the Act, we must conclude that Congress did 
not intend DOL to have primary authority to make any determinations other than the 
two stated in section 212{a)(14). If DOL is to analyze alien qualifications, it is for 
the purpose of "matching" them with those of corresponding United States workers so 
that it will then be "in a position to meet the requirement of the law," namely the 
section 212(a)(14) determinations. 
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madnny, 696 F.2d 
at 1008, the Ninth Circuit stated: 
[I]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. 
7 Based on revisions to the Act, the current citation is section 212(a)(5)(A). 
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§ 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 the DOL that stated the following: 
The labor certification made by the Secretary of Labor . . . pursuant to section 
212(a)(14) of the [Act] is binding as to the findings of whether there are able, 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 Department of Labor (DOL) must certify that insufficient domestic workers are 
available to perform the job and that the alien's performance of the job will not 
adversely affect the wages and working conditions of similarly employed domestic 
workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own 
determination of the alien's entitlement to sixth preference status. /d. § 204(b ), 
8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 
1008 9th Cir.1983). 
The INS, therefore, may make a de novo determination of whether the alien is in fact 
qualified to fill the certified job offer. 
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). 
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers 
available to perform the offered position, and whether the employment of the beneficiary will 
adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if 
the beneficiary qualifies for the offered position, and whether the offered position and beneficiary 
are eligible for the requested employment-based immigrant visa classification. 
USCIS cannot conclude that a beneficiary of a labor certification does not meet the minimum 
requirements of the offered position because the labor certification is drafted with the specific 
beneficiary in mind. 
The AAO rejects counsel's claim that it does not have the authority to conclude that the beneficairy 
does not meet the minimum requirements of the labor certification. As is discussed above, 
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determining the beneficiary's qualification for the offered position is one of the roles assigned to 
users in the petition process. 
The beneficiary must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 103.2(b )(1), (12). See Matter of Wing's 
Tea House, 16 I&N Dec. at 159; see also Matter of Katigbak, 14 I&N Dec. at 49. 
In evaluating the job offer portion of the labor certification to determine the required qualifications 
for the position, users may not ignore a term of the labor certification, nor may it impose additional 
requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra­
Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
Where the job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., 
by regulation, users must examine "the language of the labor certification job requirements" in 
order to determine what the petitioner must demonstrate about the beneficiary's qualifications. 
Madany, 696 F.2d at 1015. The only rational manner by which USers 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." Rosedale 
Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.e. 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 [labor certification]." Id. at 834 (emphasis added). USCrS 
cannot and should not reasonably be expected to look beyond the plain language of the labor 
certification or otherwise attempt to divine the employer's intentions through some sort of reverse 
engineering of the labor certification. Even though the labor certification may be prepared with the 
beneficiary in mind, users has an independent role in determining whether the alien meets the labor 
certification requirements. Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 
30, 2006). 
Therefore, USeiS has the authority to conclude that the beneficairy does not meet the minimum 
requirements of the labor certification. 
The beneficairy meets the minimum requirements of the labor certificaiton because the labor 
certification indicates that the petitioner will accept a foreign educational equivalent to the required 
degree. 
The AAO did not dismiss the appeal because the beneficiary possessed a foreign degree. Instead, 
the AAO dismissed the appeal, inter alia, because the evidence in the record did not establish that 
the beneficiary possessed a foreign degree that was the equivalent of a U.S. bachelor's degree, as 
required by the requested preference classification and the terms of the labor certification. 
The AAO failed to consider Construction and Design Co. v. USCIS, 563 F.3d 593 (7th eir. 2009) in 
the decision dismissing the appeal. 
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In Construction and Design Co. v. USCIS, 563 F.3d 593 (ih Cir. 2009), the seventh circuit 
addressed the method used by USCIS in determining a petitioner's ability to pay the proffered wage. 
The employer in Construction and Design was a small construction company which was organized 
as a Subchapter S corporation. The employer sought to employ the beneficiary at a salary of over 
$50,000 per year. The court noted that, according to the employer's tax returns and balance sheet, its 
net income and net assets were close to zero. The court also noted that the owner of the corporation 
received officer compensation of approximately $40,000. 
In considering the employer's ability to pay the proffered wage, the court stated that if an employer 
"has enough cash flow, either existing or anticipated, to be able to pay the salary of a new employee 
along with its other expenses, it can 'afford' that salary unless there is some reason, which might or 
might not be revealed by its balance sheet or other accounting records, why it would be an 
improvident expenditure. "8 
The court then turned to an examination of the USCIS method for determining an employer's ability 
to pay the proffered wage. The court noted that USCIS "looks at a firm's income tax returns and 
balance sheet first. "9 The court, recognizing that the employer bears the burden of proof, went on to 
state that if the petitioner's tax returns do not establish its ability to pay the proffered wage the 
petitioner "has to prove by other evidence its ability to pay the alien's salary." 10 The court found that 
the employer had failed to establish that it had sufficient resources to pay the proffered wage "plus 
employment taxes (plus employee benefits, if any). "11 
Thus, the court in Construction and Design concurred with existing USCIS procedure in determining 
an employer's ability to pay the proffered wage. This method involves (1) a determination of 
whether a petitioner establishes by documentary evidence that it employed the beneficiary at a salary 
equal to or greater than the proffered wage; (2) where the petitioner does not establish that it 
employed and paid the beneficiary an amount at least equal to the proffered wage during the relevant 
period, an examination of the net income figure and net current assets reflected on the petitioner's 
federal income tax returns; and (3) an examination of the totality of the circumstances affecting the 
petitioning business pursuant to Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). 
Further, the court in Construction and Design noted that the "proffered wage" actually understates 
the cost to the employer in hiring an employee, as the employer must pay the salary "plus 
employment taxes (plus employee benefits, if any)." As noted above, because the instant case arose 
in the seventh circuit, the AAO is bound by the seventh circuit's decision in Construction and 
Design. Therefore, pursuant to the decision in Construction and Design, the petitioner in the instant 
case must establish that it has the ability to pay the proffered wage plus compensation expenses for 
the employee which may include legally required benefits (social security, Medicare, federal and 
8 !d. 
9 !d. at 596. 
10 !d. 
11 Id. 
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state unemployment insurance, and worker's compensation), employer costs for providing insurance 
benefits (life, health, disability), paid leave benefits (vacations, holidays, sick and personal leave), 
retirement and savings (defined benefit and defined contribution), and supplemental pay (overtime 
and premium, shift differentials, and nonproduction bonuses). The costs of such benefits are 
significant. Therefore, pursuant to the seventh circuit decision in Construction and Design, the 
petitioner in this case would have to establish its ability to pay a higher wage than the proffered 
wage stated on the labor certification that the petitioner already failed to establish that it could pay. 
Therefore, considering Construction and Design in the assessment of the petitioner's ability to pay 
the proffered wage, the AAO affirms the conclusion that the petitioner failed to establish its ability 
to pay the proffered wage. 
In summary, the AAO grants the petitioner's motion to reconsider. After addressing and rejecting 
counsel's claims on motion, the AAO affirms 
its prior decision dismissing the appeal. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
u.s.c. § 1361. 
ORDER: The motion to reconsider is granted, and the prior decisions of the AAO and the 
director are affirmed. The appeal is dismissed, and the petition remains denied.