dismissed EB-2 Case: Information Technology

(b)(6)
DATE: FEB 2 1 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Uepartment of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Administrative Appeals Offi ce (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of Jaw nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form l-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
ffizJ.tt. lfl~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition on February 
1, 2013. The petitioner filed an appeal which the director considered as a motion to reopen and 
reconsider. The director again denied the petition on August 26, 2013. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner describes itself as an information technologies business. It seeks to permanently 
employ the beneficiary in the United States as a programmer 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, approved by the United States Department of Labor (DOL). The director determined 
in the decisions dated February 1, 2013 and August 26, 2013 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 record shows that the appeal is properly filed, timely and makes a specific allegation of error in 
law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's August 26, 2013 denial, the primary issue in this case is whether the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains lawful permanent residence. 
In pertinent part, section 203(b )(2) of the Immigration and Nationality Act (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. 
Section 203(b )(2) of the Act also includes aliens "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." The regulation at 8 C.F.R. § 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
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 
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NON-PRECEDENT DECISION 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is the date the ETA Form 9089 was accepted for processing by any office within 
the employment system of the DOL. See 8 C.P.R. § 204.5( d). 
Here, the ETA Form 9089 was accepted on March 8, 2011. The proffered wage as stated on the 
ETA Form 9089 is $81,848.00 per year. The ETA Form 9089 states that the position requires a 
master's degree in engineering, computer science, MIS or CIS or in the alternative, a bachelor's 
degree and five years of work experience as a programmer analyst, software developer or systems 
designer (at least 12 months experience must be in software development or systems design). The 
petitioner is also willing to accept a foreign educational equivalent. 
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. 1 
The record indicates the petitioner is structured as a limited liability company and filed its tax returns 
on IRS Form 1065. 2 On the petition , the petitioner claimed to have been established in 1999 and to 
currently employ 34 workers. According to the tax returns in the record, the petitioner 's fiscal year 
is based on a calendar year. On the ETA Form 9089, the beneficiary claimed to have worked for the 
petitioner since December 21, 2009. 
In response to the director's denial dated February 1, 2013, the petitioner submitted a list containing the 
names, receipt numbers, and dates of filing for 14 current Form 1-140 sponsored beneficiaries , 2 
resigned Form 1-140 sponsored beneficiaries, and 2 future Form I-140 sponsored beneficiaries. 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations at 8 C.P.R. § 103.2(a)(1). 
2 A limited liability company (LLC) is an entity formed under state law by filing articles of 
organization. An LLC may be classified for federal income tax purposes as if it were a sole 
proprietorship, a partnership or a corporation. If the LLC has only one owner, it will automatically 
be treated as a sole proprietorship unless an election is made to be treated as a corporation. If the 
LLC has two or more owners, it will automatically be considered to be a partnership unless an 
election is made to be treated as a corporation. If the LLC does not elect its classification, a default 
classification of partnership (multi-member LLC) or disregarded entity (taxed as if it were a sole 
proprietorship) will apply. See 26 C.F.R. § 301.7701-3. The election referred to is made using IRS 
Form 8832, Entity Classification Election. In the instant case, the petitioner, a multi-member LLC, 
is considered to be a partnership for federal tax purposes. 
(b)(6)
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Page 4 
In response to the AAO's Request for Evidence (RFE) dated December 26, 2013, with respect to the 
petitioner's ability to pay the proffered wage, the petitioner submitted the following documentation: 
• A copy of the beneficiary's Tax Return Transcripts issued by the Internal Revenue 
Service (IRS) for 2010, 2011, and 2012; 
• A copy of the beneficiary's IRS Forms W-2 for the 2007, 2008, 2009, 2010, 2011, 
and 2012 tax years; 
• A copy of the petitioner's IRS Forms 1065, U.S. Return of Partnership Income , for 
the 2007, 2008, 2009, 2010, 2011, and 2012 tax years; 
• A list containing the names, dates of hire, receipt numbers, priority dates, approval 
dates , and status of 21 Form I-140 sponsored beneficiaries; 
• A copy of IRS Forms W-2 issued to the Form 1-140 sponsored beneficiaries for the 
2010, 2011, and 2012 tax years; 
• A list containing the names, hiring dates, job titles, required H1-B LCA wages, actual 
offered wages, and receipt numbers of 34 H1-B sponsored beneficiaries; 
• A copy of the Form 9035, Labor Condition Application for Nonimmigrant Workers, 
for the above noted H1-B sponsored beneficiaries. 
The petitioner must establish that its job 
offer to the beneficiary is a realistic one. Because the filing of 
an ETA Form 9089 establishes a priority date for any immigrant petition later based on the ETA Fom1 
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 totality of the circumstances affecting the 
petitioning business will be considered if the evidence warrants such consideration. See Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg. 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. In the instant case, the petitioner submitted copies of 
IRS Forms W-2 as listed below: 3 
• In 2011, the Form W-2 stated wages of $98,599.00 (exceeds the proffered wage) . 
• In 2012, the Form W-2 stated wages of $75,700.00 (a deficiency of $6,148.00). 
3 Although the director considered the wage amounts for the 2010 tax year, this is before the priority 
date of March 8, 2011; and therefore, will be considered generally in determining the petitioner's 
ability to pay the proffered wage under the totality of the circumstances. 
(b)(6)
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Page 5 
• In 2013, the Earnings Statement stated year-to-date wages as of January 31, 2013 of 
$15,500.00 (a deficiency of $66,348.00). 
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 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
51 
Cir. 
2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th 
Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft 
Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th 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). 
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 
11 
real 
11 
expense. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
River Street Donuts at 118. "[USCIS] and judicial precedent support the use of tax returns and the 
net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these figures 
should be revised by the court by adding back depreciation is without support." Chi-Feng Chang at 
537 (emphasis added). 
The petitioner submitted copies of its 2011 and 2012 tax returns. The priority date is March 8, 2011 . 
The proffered wage is $81,848.00. The petitioner's tax returns stated its net income as detailed in 
the table below: 
• In 2012, the petitioner's Form 1065 stated net income of$117,973.00. 
4 
Although the net income amount for 2012 exceeded the proffered wage amount, USCIS electronic 
records indicate that the petitioner has filed additional immigrant petitions since it was established in 
1999. Consequently , USCIS must also take into account the petitioner 's ability to pay the 
beneficiary's wages in the context of its overall recruitment efforts. Presumably, the petitioner has 
filed and obtained approval of the labor certifications on the representation that it requires all of 
these workers and intends to employ them upon approval of the petitions. Therefore, it is incumbent 
upon the petitioner to demonstrate that it has the ability to pay the wages of all of the individuals it is 
seeking to employ. If we examine only the salary requirements relating to the I-140 petitions, the 
petitioner would need to establish that it has the ability to pay combined salaries of the beneficiaries. 
The petitioner must establish that it had sufficient funds to pay all the wages from the priority date 
and continuing to the present. If the instant petition was the only petition filed by the petitioner, the 
petitioner would be required to produce evidence of its ability to pay the proffered wage to the single 
beneficiary of the instant petition. However, where a petitioner has filed multiple petitions for 
multiple beneficiaries which have been pending simultaneously, the petitioner must produce 
evidence that its job offers to each beneficiary are realistic, and therefore, that it has the ability to 
pay the proffered wages to each of the beneficiaries of its pending petitions, as of the priority date of 
each petition and continuing until the beneficiary of each petition obtains lawful permanent 
residence. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. Comm . 1977) 
4 For an LLC taxed as a partnership, where a partnership's income is exclusively from a trade or 
business, USCIS considers net income to be the figure shown on Line 22 of page one of the 
petitioner's Form 1065, U.S. Partnership Income Tax Return. However, where a partnership 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 or additional 
credits, deductions or other adjustments, net income is found on page 4 (before 2008) or page 5 (2008-
2010) of IRS Form 1065 at line 1 of the Analysis of Net Income (Loss) of Schedule K. See Instructions 
for Form 1065, at http://www.irs.gov/pub /irs-pdf/il065.pdf. (indicating that Schedule K is a 
summary schedule of all partners ' shares of the partnership's income , deductions , credits , etc.). In 
the instant case, the petitioner's Schedule K has relevant entries for additional income , credits, 
deductions, or other adjustments and, therefore, its net income is found on line 1 of the Analysis of Net 
Income (Loss) of Schedule K of its tax returns. 
(b)(6)
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Page 7 
(petitioner must establish ability to pay as of the date of the Form MA 7-50B job offer, the 
predecessor to the Form ETA 750 and ETA Form 9089). See also 8 C.F.R. § 204.5(g)(2). 
In the instant matter, the director and the AAO specifically requested that the petitioner submit 
evidence to establish its ability to pay the beneficiary and the sponsored beneficiaries the proffered 
wage amounts for the relevant years. The regulation at 8 C.F.R. § 204.5(g)(2) states that USCIS 
may request additional evidence in appropriate cases. Although specifically and clearly requested by 
the AAO in the RFE dated December 26, 2013, the petitioner failed to provide copies of the 
sponsored beneficiaries' Forms ETA 750 and ETA Forms 9089, labor certifications and a list of the 
sponsored beneficiaries' proffered wage amounts, salaries paid in 2011 and 2012, exact dates of 
employment, and status of each petition as requested by the AAO. Although the petitioner 
submitted, in response to the AAO's RFE, copies of IRS Forms W-2 for its other employees for the 
2010, 2011, and 2012 tax years, this evidence is insufficient to demonstrate its ability to pay the 
proffered wage of the beneficiary and the proffered wage of the sponsored beneficiary. 
Without the proffered wage data requested, the AAO is unable to determine whether or not the wage 
amounts are equal to or exceed the proffered wage amounts listed on the labor certifications. This 
information would have demonstrated the amount of salaries and wages paid to the sponsored 
beneficiaries in comp arison to the proffered wage amounts, and further reveal the petitioner's ability 
to pay the proffered wage. The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b )(14). 
Therefore, for the year 2012 , the petitioner did not establish that it had sufficient net income to pay 
the difference between the wages actually paid to the beneficiary and the proffered wage to the 
instant beneficiary and the beneficiaries of the other immigrant visa petitions. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the 
wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered 
wage or more, USCIS will review the petitioner's net current assets . Net current assets are the 
difference between the petitioner's current assets and current liabilities. 5 A partnership's year-end 
current assets are shown on Schedule L, lines 1(d) through 6(d) and include cash-on-hand, 
inventories , and receivables expected to be converted to cash within one year. Its year-end current 
liabilities are shown on lines 15(d) through 17( d). If the total of a partnership'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. 
The petitioner's tax returns stated its net current assets as detailed in the table below. 
• In 2012, the petitioner's Form 1065 stated net current assets of -$399,510.00. 
5 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 securitie s, 
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). !d. at 118. 
(b)(6)
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Page 8 
Therefore, the petitioner did not establish that it had sufficient net current assets to pay the proffered 
wage or the difference between the wages actually paid to the beneficiary and the proffered wage in 
2012. 
Thus, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner had 
not established that it had the continuing ability to pay the beneficiary of the instant petition and the 
other sponsored workers the proffered wages as of the priority date of each petition through an 
examination of wages paid to the beneficiary and the sponsored beneficiaries, or its net income or 
net current assets. 
On appeal, counsel for the petitioner asserts that the petitioner has submitted sufficient evidence to 
demonstrate that it does possess the ability to pay the proffered wage. Counsel further asserts that the 
evidence should be viewed in its entirety. Counsel asserts that the director's decision is in error in that it 
is based upon the petitioner's failure to submit evidence that was never requ~sted, and that the director's 
NOID violated the regulations because it did not specify the type of evidence required, nor did it give 
the petitioner adequate notice and sufficient information to respond. Counsel cites to 8 C.P.R. 
§ 103.2(b)(8); Matter of Estime, 19 I&N Dec. 450 (1987); and Matter of Arias, 19 I&N Dec. 568 
(BIA 1988) in support of the assertions. 
Although counsel contends on appeal that the director violated 8 C.P.R. § 103.2(b )(8) by failing to 
request specific evidence before denying the petition, the cited regulation requires the director to 
request additional evidence in instances "where there is no evidence of ineligibility, and initial 
evidence or eligibility information is missing." !d. The director is not required to issue a request for 
further information in every potentially deniable case. If the director determines that the initial 
evidence supports a decision of denial, the cited regulation does not require solicitation of further 
documentation. The director did not deny the petition based on insufficient evidence of eligibility. 
Furthermore, even if the director had committed a procedural error by failing to solicit further 
evidence, it is not clear what remedy would be appropriate beyond the appeal process itself. The 
petitioner has in fact supplemented the record on appeal and in response to the AAO ' s Request for 
Evidence (RFE) dated December 26, 2013; and therefore, it would serve no useful purpose to 
remand the case simply to afford the petitioner the opportunity to supplement the record with new 
evidence. 
Counsel's assertions and the evidence presented on appeal and in response to the AAO's request for 
evidence do not outweigh the evidence of record that demonstrates that the petitioner could not pay 
the proffered wage from the day the ETA Form 9089 was accepted for processing by the DOL. 
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. 
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 
(b)(6)
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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. users may consider such factors as the number of 
years the petitioner has been doing business, the established historical growth of the petitioner 's 
business, the overall number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, the petitioner's reputation within its industry, whether the beneficiary is 
replacing a former employee or an outsourced service, or any other evidence that USCIS deems 
relevant to the petitioner 's ability to pay the proffered wage. 
In this matter, the totality of the circumstances does not establish that the petitioner had or has the 
ability to pay the proffered wage as of the priority date. There are no facts paralleling those found in 
Sonegawa that are present in the instant matter to a degree sufficient to establish that the petitioner 
had the ability to pay the proffered wage. The petitioner has not demonstrated the occurrence of any 
uncharacteristic business expenditures or losses in 2012 that would have directly affected its ability 
to pay the proffered wage. 
Accordingly , the evidence submitted does not establish that the petitioner had the continuing ability 
to pay the proffered wage beginning on the priority date. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.