dismissed EB-2 Case: Information Technology

(b)(6)
DAT-"fAY 2 1 2014 OFFICE : TEXAS SERVICE CENTER 
INRE : Petitioner : 
Beneficiary: 
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: 
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 law 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 I-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 . 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner describes itself as an IT services and consulting 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 (labor certification), approved by the U.S. Department of 
Labor (DOL). 1 The priority date ofthe petition is April21, 2012.Z 
The director's decision denying the petition concludes that the petitioner did not establish by a 
preponderance of the evidence that the beneficiary possessed the minimum experience required to 
perform the offered position by the priority date. The director noted unresolved inconsistencies in 
the record regarding the beneficiary's employment history. 
The record shows that the appeal is properly filed 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. 
The AAO conducts appellate review on a de novo basis. See Soltane 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. 3 
Beneficiary's Qualifications 
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 (Acting Reg'l Comm'r 1977); see also Matter of Katigbak, 14 
I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
In evaluating the labor certification to determine the required qualifications for the position, U.S. 
Citizenship and Immigration Services (USCIS) may not ignore a term of the labor certification, nor 
1 See section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. 
§ 204.5(d). 
3 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by 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 ofSoriano, 19 I&N Dec. 764 (BIA 1988). 
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may it impose additional requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); 
KR.K Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of 
Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
Part H of the labor certification states that the offered position has the following mm1mum 
requirements: 
H.4. Education: Master's degree in computer science. 
H.5. Training: None required. 
H.6. Experience in the job offered: 12 months. 
H.7. Alternate field of study: Computer Applications. 
H.8. Alternate combination of education and experience: None accepted. 
H.9. Foreign educational equivalent: Accepted. 
H.1 0. Experience in an alternate occupation: None accepted. 
H.14. Specific skills or other requirements: Any suitable combination of education, training or 
experience is acceptable. Will accept a Master's degree in computer science or computer 
applications as evaluated by a credential evaluation service. 
Part J of the labor certification states that the beneficiary possesses a Master's degree from 
in India, completed in 2005. The record contains a copy of the beneficiary's Bachelor of 
Science diploma issued in March 2003, together with transcripts, from in India. 
The record also contains a copy of the beneficiary's Master of Computer Applications diploma issued 
in March 2006, together with transcripts, from in India. 
The record also contains an evaluation of the beneficiary's educational credentials prepared by 
for on October 27, 2011. The evaluation 
states that the beneficiary's Bachelor ot :Science degree IS equal to three years of undergraduate 
coursework from an accredited institution of higher education in the United States. The evaluation 
further states that the beneficiary's Master of Computer Applications degree is the equivalent of a 
Master of Science degree in Computer Science from an accredited institution of higher education in 
the United States. The petitioner has established that the beneficiary has the required education for 
the proffered position. 
Part K of the labor certification states that the beneficiary possesses the following employment 
experience: 
• Programmer Analyst with 
October 1, 2008 until February 28, 2010. 
• Programmer Analyst with 
March 1, 2010 until March 31, 2011. 
• Programmer Analyst with 
Inc. in South Plainfield, NJ from 
Corp. d/b/a Corporation in Edison, NJ from 
Corporation in Edison, NJ from April 1, 
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2011 until June 20, 2011. 
• Programmer Analyst with the petitioner, Inc., in Cranbury, NJ from June 
21, 2011 through the date the beneficiary signed the labor certification application on December 19, 
2012. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. 8 C.F.R. § 204.5(g)(l). If such evidence is unavailable, USCIS 
may consider other documentation relating to the beneficiary's experience. !d. 
With the petition, the petitioner submitted the following experience letters: 
• Letter dated August 31, 2007, from Head of India Local & Transversal 
Applications, on letterhead stating that the company 
employed the beneficiary from August 200 until August 2007. The letter indicates that the 
beneficiary made an "excellent contribution towards development of HR and e-banking 
applications using various Web technologies. . . . " 
• Letter dated February 28, 2010, from - President, on 
letterhead stating that the company employed the beneficiary as a programmer analyst 
from October 2008 until February 2010. 
• Letter dated Januarv 30. 2013. from _ a manager at stating that 
employed the beneficiary as a programmer analyst from 
indicates that he/she reviewed and October 1, 2008 until February 28, 2010. 
supervised the beneficiary's activities as an IT subcontractor. 
• Letter dated February 1, 2013, from a former colleague of the beneficiary 
from October 20, 2008 to February 28, 2010, stating that 
employed the beneficiary as a programmer analyst. 
The director sent a Notice of Intent to Deny (NOID) to the petitioner dated November 25, 2013. In 
connection with the beneficiary's work experience, the director indicated that several prior Form I-
129 filings on the beneficiary's behalf were inconsistent with the beneficiary's representations 
regarding his work experience on the labor certification. Specifically, the director noted the 
following Form I-129 filings on behalf ofthe beneficiary: 
• A Form I-129 filed by 
September 15, 2010. 
• A Form I-129 filed by 
March 31 , 2011. 
LLC, with validity dates from October 1, 2007 to 
Inc., with validity dates from May 30, 2008 to 
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• A Form I-129 filed by 
to April 11, 2012. 
Corp, with validity dates from April 12, 2011 
• Two Form I-129s filed by the petitioner, one pending at the time of the NOID and one with 
validity dates from April12, 2012 to October 19, 2013. 
The director also indicated that because the letters from and 
were not from the beneficiary's former emplovers. the letters would not be accepted as evidence of 
the beneficiary's prior work experience with 
The director further stated that the letter from does not contain employer contact 
information and is not listed on the labor certification. In addition, the director indicated that the 
letter from was signed by who was charged 
with immigration fraud in 2010. The director stated that any documents with his name/signature are 
considered questionable and possibly fraudulent. 
In response to the director's NOID, the petitioner submitted, in part, a letter dated March 31, 2011, 
from CEO, on Corporation letterhead stating that the company employed 
the beneficiary as a programmer analyst from March 1, 201 0 until March 31, 2011. 
The petitioner also submitted three charts detailing the beneficiary's employment, several Forms I-
797 for the beneficiary, an organizational chart for Corporation, and a 
Certificate of Amendment to the Certificate of Incorporation of , Inc. 
The director's decision denying the petition states that because the letters from and 
were not from the beneficiary's former employers, the letters would not be 
acce ted as evidence of the beneficiary's prior work experience with 
The director further stated in his decision that the letter from does not contain employer 
contact information and is not listed on the labor certification. n Matter of Leung, 16 I&N Dec. 
2530 (BIA 1976), the Board's dicta notes that the beneficiary's experience, without such fact 
certified by DOL on the labor certification, lessens the credibility of the evidence and facts 
asserted. Therefore, the director did not accept the letter from as evidence of the 
beneficiary's priorwork experience. 
Further, the director did not accept the letter from Corporation as evidence ofthe beneficiary's 
prior work experience. The director noted that the owner and President of Corporation is 
who pled guilty to hiring unauthorized aliens in federal court on April 29, 2011. 
The director also noted that Inc. dba Corporation pled guilty to mail 
fraud and agreed to make restitution to USCIS. 
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The director further noted that the Form I-129 petition filed by [nc. was 
signed by who was never an employee of the company and did not have authority to 
file cases for , Inc. 4 
Finally, the director determined that the petitioner did not resolve the inconsistencies in the Form I-
129 filings on behalf of the beneficiary and the representations made by the beneficiary on the labor 
certification application. The director concluded that the petitioner did not establish by a 
preponderance of the evidence that the beneficiary possessed the minimum experience required to 
perform the offered position by the priority date. 
On appeal, the petitioner submits information regarding the beneficiary's prior employment. We will 
analyze the beneficiary's claimed employment listed on the labor 
certification below. 
Inc. 
On the labor certification, the beneficiary represented that he worked as a Programmer Analyst with 
Inc. in South Plainfield, NJ from October 1, 2008 until February 28, 
2010. Two Forms I-129 were filed on the beneficiary's behalf covering that period: one filed by 
LLC, with validity dates from October 1, 2007 to September 15, 2010; and one 
filed by nc., with validity dates from May 30, 2008 to March 
31, 2011. 
On appeal, counsel for the petitioner claims that the beneficiary did work for 
LLC until October 1, 2008. However, the petitioner has provided no evidence of the beneficiary's 
employment with LLC. The assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). 
Further, the instructions to the ETA Form 9089 require the beneficiary to list all experiences that 
qualify him for the job opportunity.5 The beneficiary failed to list his employment with 
LLC on the labor certification. Doubt cast on any aspect of the petitioner's evidence 
may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Counsel asserts that after leaving LLC on October 1, 2008, the beneficiary 
immediately joined Inc., wliich changed its name to 
Inc. on May 26, 2009. The Certificate of Amendment to the Certificate of Incorporation of 
Inc. supports the name change. Therefore, according to counsel, the 
4 On appeal, the petitioner's counsel asserts that the beneficiary has no authority to decide who signs 
petitions on his behalf, and that he was one of the "victims" of 
However, counsel does not dispute that did not have authority to file cases for 
Inc. 
5 http://www .foreignlaborcert.doleta. gov /pdf/9089inst. pdf. 
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beneficiary's employer became 
change. 
NON-PRECEDENT DECISION 
Inc. on the date of the name 
The record contains three letters in support of the beneficiary's employment with 
Inc.: a letter dated February 28, 2010, from President of 
stating that the company employed the beneficiary as a 
programmer analyst trom Uctober 2008 until February 2010; a letter dated January 30, 2013, from 
a manager at , stating that employed 
the beneficiary as a programmer analyst from October 1, 2008 until February 28, 2010; and a letter 
dated February 1, 2013, from a former colleague ofthe beneficiary from October 
20, 2008 to February 28, 2010, stating that Inc. employed the 
beneficiary as a programmer analyst. 
Evidence relating to qualifying experience must be in the form of a letter from a current or former 
employer and must include the name, address, and title of the writer, and a specific description of the 
duties performed by the beneficiary. 8 C.F.R. § 204.5(g)(1). As noted by the director in his NOID, 
the letter from Eresident of Inc., was deemed 
questionable due to _ 's guilty plea. Therefore, the petitioner was reouired to submit 
independent, objective evidence of the beneficiary's employment with Inc. 
and Inc. 
Because the letters from and were not from -
Inc., the letters were not accepted by the director as evidence of the 
beneficiary's prior work experience with Inc. They also do not 
provide independent, obiective evidence of the eneticiary's employment with 
Inc. and Inc. The letters include two paragraphs 
descnbmg the beneficiary's duties that are identical to each other. It appears that someone other 
than and wrote the letters, diminishin~ their authenticity and 
evidentiary value. Further, the letters fail to reference the name change of 
Inc. to Inc. in 2009. Additionally, the letter from 
indicates that the beneficiary performed work for in Washington, 
DC, while the labor certification says that he worked in South Plainfield, NJ. Further, 
also indicates in the letter that he/she was the beneficiary's supervisor, while the labor 
certification indicates that was the beneficiary's supervisor. Doubt cast on any 
aspect of the petitioner's evidence may lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. The 
letters from and do not establish that the beneficiary worked as a 
Programmer Analyst with ;, Inc. in South Plainfield, NJ from October 
1, 2008 until February 28, 2010. 
On appeal, the petitioner submits earnings statements for the beneficiary. The statements show that 
the beneficiary was paid by from the period ending October 15, 2008 through 
the period ending July 31, 2009; and that the beneficiary was paid by 
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Inc. from the period ending August 15, 2009 through the period ending February 28, 2010. 
If changed its name to Inc. on May 26, 
2009, it is unclear why the beneficiary continued to receive paychecks from 
through the period ending July 31, 2009. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. Further, the earnings 
statements from and Inc. do not establish 
the the beneficiary was employed as a programmer analyst. Therefore, the statements are not 
independent, objective evidence of the beneficiary's employment as a programmer analyst with 
Inc. from October 1, 2008 until February 28, 2010. The credibility 
concerns noted above with respect to the letters from and 
Inc. have not been resolved. 
Next, counsel asserts that on Februarv 22, 2010 Corp., a Maryland co oration, 
purchased the assets of Inc. (except the assets of L Inc.).6 
On appeal, the petitioner submits a Secured Party Bill of Sale dated February 22, 2010, pursuant to 
which . sold to Corp. the personal property of 
Inc. (except equipment leased by that is the subject of a true lease agreement and any 
executory contracts not identified on an unattached Exhibit B of a Secured Party Private Sale 
Agreement). The Bill of Sale does not establish that _ Corp. purchased the assets of 
Inc.; instead, the Bill of Sale establishes that 
Corp. purchased the assets o Inc. 7 Therefore, the etitioner has not established that 
Corp. purchased the assets of Inc. (formerly 
Inc.). 
In sum, the petitioner has not established that the beneficiary worked as a Programmer Analyst with 
Inc. in South Plainfield, NJ from October 1, 2008 until February 28, 
2010. 
On the labor certification, the beneficiary represented that he worked as a Programmer Analyst with 
Corp. d/b/a Corporation in Edison, NJ from March 1, 2010 until March 31, 
2011. The Form I-129 filed on the beneficiary's behalf covering that period was filed by 
Inc., with validity dates from May 30, 2008 to March 31, 2011. As noted above, the 
petitioner has not established the relationship between Inc. and 
6 The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534; 
Matter of Ramirez-Sanchez, 17 I&N Dec. at 506 (BIA 1980). 
7 While Inc. was an additional signatory on the Bill of Sale, the 
relationship between Inc. and Inc. has not been 
established. 
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Corp. Therefore, the inconsistencies in the Form I -129 filing by 
Inc. on behalf of the beneficiary, and the representation made by the beneficiary on the labor 
certification application regarding his employment with Corp., have not been 
resolved. 
Counsel asserts on appeal that Corp. operated under the assumed name of 
Corporation until March 31. 2011.
11 
The petitioner did not submit an assumed name certificate 
establishing that Corp. operated under the assumed name of Corporation. 
The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I& Dec. at 534; Matter 
of Ramirez-Sanchez, 17 I&N Dec. at 506. 
The petitioner has not established that the beneficiary worked as a Programmer Analyst with 
Corp. d/b/a Corporation in Edison, NJ from March 1, 2010 until March 31, 2011. 
Corporation 
Next, on the labor certification, the beneficiary represented that he worked as a Programmer Analyst 
with in Edison, NJ from April1 , 2011 until June 20, 2011. The 
Form I-129 filed on the beneficiary's behalf covering that period was filed by 
Corp., with validity dates from April 12, 2011 to April 11, 2012. The petitioner 
did not 
submit a etter from Corp. verifying the beneficiary's employment from 
April 1, 2011 until June 20, 2011. The petitioner submitted two earnings statements issued to the 
beneficiary by Corp. However, the earnings statements do not establish 
the the beneficiary was employed as a programmer analyst. Thus, the petitioner has not established 
that the beneficiary worked as a Programmer Analyst with Corporation in 
Edison, NJ from April 1, 2011 until June 20, 2011. 
Inc. (the petitioner) 
Counsel asserts that on June 20, 2011, Corp. was merged with the 
petitioner. The record contains no evidence of the merger. The assertions of counsel do not constitute 
evidence. Matter ofObaigbena, 19 I&N Dec. at 534; Matter ofRamirez-Sanchez, 17 I&N Dec. at 506. 
Without evidence of the merger, the beneficiary's representation on the labor certification that he 
worked as a Programmer Analyst with the petitioner in Cranbury, NJ from June 21, 2011 through the 
date he signed the labor certification application on December 19, 2012 is not consistent with the Form 
I-129 filings for the beneficiary covering that period.9 
8 The petitioner submitted earnings statements issued to the beneficiary by Corporation in 
2010 and 2011. However, the earnings 
statements do not establish the the beneficiary was employed 
as a programmer analyst, or that Corp. operated under the assumed name of 
Corporation in 2010 and 2011. 
9 Two Form I-129s were filed by the petitioner on the beneficiary's behalf, one with validity dates 
from April12, 2012 to October 19, 2013, and one pending at the time of the NOID. 
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Further, representations made on the certified ETA Form 9089, which is signed by both the petitioner 
and the beneficiary under penalty of petjury, clearly indicate that the beneficiary's experience with the 
petitioner, or experience 
in an alternate occupation, cannot be used to qualify the beneficiary for the 
certified position.10 Specifically, the petitioner indicates that questions J.19 and J.20, which ask about 
10 20 C.F .R. § 656.17 states: 
(h) Job duties and requirements. (1) The job opportunity's requirements, unless 
adequately documented as arising from business necessity, must be those normally 
required for the occupation 
(4)(i) Alternative experience requirements must be substantially equivalent to the 
primary requirements of the job opportunity for which certification is sought; and 
(i) If the alien beneficiary already is employed by the employer, and the alien 
does not meet the primary job requirements and only potentially qualifies for 
the job by virtue of the employer's alternative requirements, certification will 
be denied unless the application states that any suitable combination of 
education, training, or experience is acceptable. 
(ii) Actual minimum requirements. DOL will evaluate the employer's actual 
minimum requirements in accordance with this paragraph (i). 
(1) The job requirements, as described, must represent the employer's actual 
minimum requirements for the job opportunity. 
(2) The employer must not have hired workers with less training or experience for 
jobs substantially comparable to that involved in the job opportunity. 
(3) If the alien beneficiary already is employed by the employer, in considering 
whether the job requirements represent the employer's actual minimums, DOL will 
review the training and experience possessed by the alien beneficiary at the time of 
hiring by the employer, including as a contract employee. The employer can not 
require domestic worker applicants to possess training and/or experience beyond what 
the alien possessed at the time of hire unless: 
(i) The alien gained the experience while working for the employer, including 
as a contract employee, in a position not substantially comparable to the 
position for which certification is being sought, or 
(ii) The employer can demonstrate that it is no longer feasible to train a 
worker to qualify for the position. 
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experience in an alternate occupation, are not applicable. In response to question J .21, which asks, "Did 
the alien gain any of the qualifying experience with the employer in a position substantially comparable 
to the job opportunity requested?," the petitioner answered "no." The petitioner specifically indicates in 
response to question H.6 that 12 months of experience in the job offered is required and in response to 
question H.l 0 that experience in an alternate occupation is not acceptable. In general, if the answer to 
question J.21 is no, then the experience with the employer may be used by the beneficiary to qualify 
for the proffered position if the position was not substantially comparable 11 and the terms of the ETA 
Form 9089 at H.lO provide that applicants can qualify through 
an alternate occupation. Here, the 
beneficiary indicates in response to question K.1. that his position with the petitioner was as a 
programmer analyst, and the job duties are the same duties as the position offered. Therefore, the 
experience gained with the petitioner was in the position offered and is substantially comparable as 
he was performing the same job duties more than 50 percent of the time. According to DOL 
regulations, therefore, the petitioner cannot rely on this experience for the beneficiary to qualify for 
the proffered position. Additionally, as the terms of the labor certification supporting the instant I-
140 petition do not permit consideration of experience in an alternate occupation, and the 
(4) In evaluating whether the alien beneficiary satisfies the employer's actual 
minimum requirements, DOL will not consider any education or training obtained by 
the alien beneficiary at the employer's expense unless the employer offers similar 
training to domestic worker applicants. 
(5) For purposes of this paragraph (i): 
(i) The term "employer" means an entity with the same Federal Employer 
Identification Number (FEIN), provided it meets the definition of an employer 
at§ 656.3. 
(ii) A "substantially comparable" job or position means a job or position 
requiring performance of the same job duties more than 50 percent of the 
time. This requirement can be documented by furnishing position 
descriptions, the percentage of time spent on the various duties, organization 
charts, and payroll records. 
11 A definition of"substantially comparable" is found at 20 C.F.R. § 656.17: 
5) For purposes ofthis paragraph (i): 
(ii) A "substantially comparable" job or position means a job or position 
requiring performance of the same job duties more than 50 percent of the 
time. This requirement can be documented by furnishing position 
descriptions, the percentage of time spent on the various duties, organization 
charts, and payroll records. 
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beneficiary's experience with the petitioner was in the position offered, the experience may not be 
used to qualify the beneficiary for the proffered position. 
In sum, the petitioner has not established that the beneficiary has 12 months of experience as a 
programmer analyst. Thus, the AAO affirms the director's decision that the petitioner failed to 
establish that the beneficiary met the minimum requirements of the offered position set forth on the 
labor certification as of the priority date. 
Ability to Pay the Proffered Wage 
Beyond the decision of the director, the petitioner has also failed to establish its ability to pay the 
proffered wage of $74,300 as of the priority date and continuing until the beneficiary obtains lawful 
permanent residence. See 8 C.F.R. § 204.5(g)(2). 
The regulation at 8 C.F.R. § 204.5(g)(2) requires that a prospective United States employer 
demonstrate its continuing ability to pay the proffered wage with evidence in the form of copies of 
annual reports, federal tax returns, or audited financial statements. In a case where the prospective 
United States employer employs 100 or more workers, the director may accept a statement from a 
financial officer of the organization which establishes the prospective employer's ability to pay the 
proffered wage. 12 In appropriate cases, additional evidence, such as profit/loss statements, bank 
account records, or personnel records, may be submitted by the petitioner or requested by USCIS. 
In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the 
petitioner has paid the beneficiary the full proffered wage each year from the priority date. With the 
petition, the petitioner provided a 2012 IRS Form W-2, Wage and Tax Statement, indicating that the 
petitioner paid the beneficiary $96,203.70 in 2012. 
Pursuant to the NOID, the director requested the petitioner to submit additional evidence of its 
12 With the petition, the petitioner provided a statement dated February 12, 2013, from 
Chief Executive Officer of Inc., stating that 
Inc. currently employs 135 workers, has gross revenue of $15 million and net revenues 
of $1.5 million. This letter was not written by the petitioner's financial officer on behalf of the 
petitioner. Therefore, the letter does not establish the petitioner's ability to pay the proffered wage. 
Further, in response to the director's NOID, the petitioner submitted a letter dated December 9, 
2013, from , Chief Financial Officer for the petitioner, stating that the petitioner has more 
than 100 employees on its payroll and that its annual revenue for 2012 was $12,917,067. However, 
because of the inconsistencies in the petitioner's IRS Forms 941 detailed herein and given the 
petitioner's history of immigration filings, we find that USCIS need not exercise its discretion to 
accept the letter from as evidence of the petitioner's ability to pay the proffered wage. 
USCIS records indicate that the petitioner has filed dozens of Form I-140 and Form I-129 petitions 
with USCIS. 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. 
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Page 13 
ability to pay the proffered wage, including IRS Forms 941 for the first three quarters of 2013, and 
copies of its annual reports, federal tax returns, or audited financial statements for each year from the 
priority date. 
In response to the NOID, the petitioner submitted the beneficiary's paystubs issued by the petitioner 
in 2013, indicating that the petitioner paid the beneficiary $92,874.60 through October 31, 2013. 
The petitioner also submitted its IRS Forms 941 for the first three quarters of 2013. The Forms 941 
indicate that the petitioner employed no employees who received wages, tips or other compensation 
for the relevant quarters. 13 However, the Forms 941 show wages paid to employees in each quarter. 
The internal inconsistencies in the 2013 Forms 941 cast doubt upon the authenticity of the 
beneficiary's pay stubs submitted for 2013. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Matter of Ho, 19 I&N Dec. at 591-
92. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Id. Doubt cast on any aspect 
of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. I d. 
Even if the petitioner had established that it paid the beneficiary the full proffered wage in 2012 and 
2013, the petitioner must also submit its annual reports, federal tax returns, or audited financial 
statements for each relevant period.14 
The petitioner submitted the 2012 IRS Form 1120, U.S. Corporation Income Tax Return, for 
Corporation, and a Form 1 OQ for Corporation for the quarterly 
period ending September 30, 2013.15 However, the petitioner failed to submit its annual reports, 
13 Part 1, Question 1 on each Form 941. 
14 If the petitioner has not established that it paid the beneficiary the full proffered wage each year, 
USCIS will next examine whether the petitioner had sufficient net income or net current assets to 
pay the difference between the wage paid, if any, and the proffered wage. See River Street Donuts, 
LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Elatos Restaurant Corp. v. Sava, 632 F. Supp. 
1049, 1054 (S.D.N.Y. 1986); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984)); Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); KC.P. Food Co. 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); and Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. 
Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). 
15 The federal employer identification number (EIN) for Corporation is 
The petitioner's EIN is The petitioner cannot use the tax returns of its parent 
entity to establish its ability to pay the proffered wage. Because a corporation is a separate and 
distinct legal entity from its shareholders, the assets of its shareholders or of other entities 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). 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, permits [USCIS] to consider the financial resources of individuals or 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
federal tax returns, or audited financial statements as requested in the NOID. 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). 
USCIS may also consider the overall magnitude of the petitioner's business activities. See Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).16 The petitioner failed to establish that factors 
similar to Sonegawa existed in the instant case. Accordingly, after considering the totality of the 
circumstances, the petitioner has also failed to establish its continuing ability to pay the proffered wage 
to the beneficiary since the priority date. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
entities who have no legal obligation to pay the wage." The petitioner would be required to submit 
audited financial statements or annual reports containing its separate financial information in years 
that it does not file its own federal tax returns. We note that according to its 2012 tax return, 
Corporation had a net loss of -$6,046,229 and net current liabilities of 
-$2,117,940 in 2012. 
16 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.