dismissed EB-2 Case: Information Technology

(b)(6)
Date: JUN 0 4 2013 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
INSTRUCIIONS: 
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.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 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. 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www. uscis.gov 
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Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is an information technology company. It seeks to employ the beneficiary 
permanently in the United States as a software engineer 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 
that the petitioner failed to demonstrate its ability to pay the proffered wage. The director denied the 
petition on June 18, 2012. 
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 denial, the primary issue in this case is whether or not the petitioner has 
the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). 
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. 
The regulation 8 C.P.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 
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). The petitioner must also demonstrate 
(b)(6)
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that, on the priority date, the beneficiary had the qualifications stated on its ETA Form 9089 as certified 
by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 
(Acting Reg'l Cornm'r 1977). 
Here, the ETA Form 9089 was accepted on AprilS, 2011. The proffered wage as stated on the ETA 
Form 9089 is $81,000 per year. The ETA Form 9089 states that the position requires a Master's 
degree in computer science or a Bachelor's degree in electrical engineering, electronics engineering 
or electrical and electronics engineering with 5 years of experience as a software engineer; and 36 
months of experience in an alternate occupation of programmer analyst, senior software engineer or 
web developer. 
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 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 2003, to have a gross annual 
income of $659,000, and to currently employ twelve workers. According to the tax returns in the 
record, the petitioner's fiscal year is the calendar year. On the ETA Form 9089, signed by the 
beneficiary on July 8, 2011, the beneficiary did not claim to have worked for the petitioner. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition 
later based on the ETA Form 9089, the petitioner must establish that the job offer was realistic as of the 
priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains 
lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l 
Comm'r 1977); see also 8 C.P.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'l Comm'r 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 abilitv to nav the nrofferecl wage. The petitioner has submitted a Form W-2 issued to the 
beneficiary by 'or 2011. This Form W-2 indicates the same address but does 
not contain the same employment identification number as the petitioner. Therefore the submitted 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form l-290B, 
which are incorporated into the regulation at 8 C.P.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 of Soriano, 19 l&N Dec. 764 (BIA 1988). 
(b)(6)
Page 4 
Form W -2 carries no evidentiary weight in this case. Thus, in the instant case, the petitioner has not 
established that it employed and paid the beneficiary the full proffered wage from the priority date. 
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 (1s
1 
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 
sales and profits and wage expense is misplaced. Showing that the petitioner's gross sales and 
profits exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages 
in excess of the proffered wage is insufficient. 
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and 
Naturalization Service, now USCIS, had properly relied on the petitioner's net income fi'gure, as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 
The court specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 
(gross profits overstate an employer's ability to pay because it ignores other necessary expenses). 
With respect to depreciation, the court in River Street Donuts noted: 
The AAO recognized that a depreciation deduction is a systematic allocation of 
the cost of a tangible long-term asset and does not represent a specific cash 
expenditure during the year claimed. Furthermore, the AAO indicated that the 
allocation of the depreciation of 
a long-term asset could be spread out over the 
years or concentrated into a few depending on the petitioner's choice of 
accounting and depreciation methods. Nonetheless, the AAO explained that 
depreciation represents an actual cost of doing business, which could represent 
either the diminution in value of buildings and equipment or the accumulation of 
funds necessary to replace perishable equipment and buildings. Accordingly, the 
AAO stressed that even though amounts deducted for depreciation do not 
represent current use of cash, neither does it represent amounts available to pay 
wages. 
We find that the AAO has a rational explanation for its policy of not adding 
depreciation back to net income. Namely, that the amount spent on a long term 
tangible asset is a "real" expense. 
(b)(6)
Page 5 
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 record before the director closed on May 24, 2012 with the receipt by the director of the 
petitioner's submissions in response to the director's request for evidence. As of that date, the 
petitioner's 2012 federal income tax return was not yet due. The petitioner did not submit its 2011 
federal tax returns, annual reports or audited financial statements. The petitioner's only tax return of 
record, for 2010, demonstrates its net income for 201 0, which does not establish its net income 
beginning on the priority date of April 5, 2011. The petitioner, through counsel, claims that 
, the beneficiary's current emolover. is also owned by 
Company. The petitioner claims that is part of the same organization as the 
petitioner and that the salary paid by . should be credited to the petitioner. 
The petitioner further states that because it is a wholly owned subsidiary, it did not submit separate 
tax returns for 2011. The record contains a stock purchase agreement dated October 15, 2010 
wherein the sole shareholder of the petitioner sold 100% of the petitioner's shares to _ 
The record contains a letter from drafted May 22, 2012, 
indicating that does business as - -, 
The record contains an IRS Form 1120 fo1 for 2010. This 
tax return may not be utilized by the petitioner to establish the ability to pay the proffered wage 
beginning in 2011. 
The two companies are not shown to be the same corporate structure. 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 determining the petitioning corporation's 
ability to pay the proffered wage. See Matter of Aphrodite Investments, Ltd, 17 I&N Dec. 530 
(Comm'r 1980). 
Corporations are classified as members of a controlled group if they are connected through certain 
stock ownership. All corporate members of a controlled group are treated as one single entity for tax 
purposes (i.e., only one set of graduated income tax brackets and respective tax rates applies to the 
group's total taxable income). Each member of the group can file its own tax return rather than the 
group filing one consolidated return. However, members of a controlled group often consolidate 
their financial statements and file a consolidated tax return. The controlled group of corporations is 
subject to limitations on tax benefits to ensure the benefits of the group do not amount to more than 
those to which one single corporation would be entitled. 
2 The same shareholder also sold 1 00% of the stock of to The 
fact that owns 100% of the stock of both the petitioner, and 
does not establish that the companies are considered as one corporate entity. 
3 The stock purchase agreement indicated that purchased the petitioner, not 
(b)(6)
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Taxpayers indicate they are members of a controlled corporate group by marking a box on the tax 
computation schedule of the income tax return. If the corporate members elect to apportion the 
graduated tax brackets and/or additional tax amounts unequally, all members must consent to an 
apportionment plan and attach a signed copy of the plan to their corporate tax returns (Schedule 0 to 
IRS Form 1120). The record contains 
no independent obiective evidence which would establish that 
the petitioner is part of the same corporate tax group as or 
that _ _ _ _ _ is obligated to pay the wages of the petitioner's 
employees. 4 There is no 2011 tax return of the petitioner in the record. 
On appeal, counsel submits unaudited income statements of for 2011.5 
Counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.F.R. 
§ 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its 
ability to pay the proffered wage, those financial statements must be audited. As there is no 
accountant's report accompanying these statements, the AAO cannot conclude that they are audited 
statements. Unaudited financial statements are the representations of management. The unsupported 
representations of management are not reliable evidence and are insufficient to demonstrate the 
ability to pay the proffered wage. Counsel's assertions on appeal cannot be concluded to overcome 
the director's decision that the petitioner could not pay the proffered wage from the day the ETA 
Form 9089 was accepted for processing by the DOL. 
Next, USCIS may consider the overall magnitude of the petitioner's business activities in its 
determination ofthe petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 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 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. US CIS 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 
4 No evidence was submitted indicating that the petitioner could rely on the income of 
d/b/a Further, no 2011 tax return of 
was submitted. 
5 These statements reflect a loss in net earnmgs of ($5,107.35). No records were submitted 
reflecting net current assets in 2011. 
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Page 7 
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 has been in business since 2003 and employs twelve workers. 
However, the record is silent concerning the petitioner's reputation in its industry, its established 
historical growth, the occurrence of any uncharacteristic business expenditures or losses, and 
whether or not the beneficiary is replacing a former employee or an outsourced service. There is no 
evidence prescribed by the regulation at 8 C.P.R. § 204.5(g)(2) to establish that the petitioner has the 
ability to pay the proffered wage from the priority date. 
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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has met that burden. 
ORDER: The appeal is dismissed.