dismissed EB-2 Case: Management

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OSJice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. citizenship 
identifying data deleted to 
 and Inrmigration 
prevent clearly unwamta Services 
invasion of personal privacy 
mLlc COPY 
SRC 07 36 52821 
IN RE: 
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. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is a commercial building cleaning services company. It seeks to employ the beneficiary 
permanently in the United States as a manager pursuant to section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2). As required by statute, a Form ETA 750,' 
Application for Alien Employment Certification approved by the Department of Labor (DOL), 
accompanied the petition. Upon reviewing the petition, the director determined that the beneficiary 
did not satisfy the minimum level of education stated on the labor certification. Specifically, the 
director determined that although the beneficiary had the requisite five years of work experience, the 
beneficiary did not possess the equivalent of a four-year bachelor's degree in operations 
management. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error 
in law or fact. The procedural history in this case is documented by the record and incorporated into 
the decision. Further elaboration of the procedural history will be made only as necessary. 
In pertinent part, section 203(b)(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. 5 204.5(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." Id. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka 
v. US. Dept. ofTransp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal.2 
On appeal, counsel submits a second Foundation for International Services (FIS) evaluation report 
dated Ma 11 2007 prepared by -, that refers to an accompanying letter from 
Seattle Pacific University, Seattle, Washington for its conclusions. -~ 
' After March 28,2005, the correct form to apply for labor certification is the Form ETA 9089. 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). 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 I&N Dec. 764 (BIA 1988). 
examines the beneficiary's academic credentials and states that in his opinion that the beneficiary 
earned the educational equivalent of a four-year Bachelor of Arts degree in Computer Information 
Systems based on his studies at South Bank Polytechnic Institute, London, England, resulting in the 
post-secondary Higher National Diploma in Computer Studies, the beneficiary's certificate in 
computer programming earned through the Association of Computer Professionals, and through his 
professional education. 
On appeal, counsel states that some documents that establish the beneficiary's qualifications were 
missing when the petition was filed, but that necessary educational and experience documentation 
was obtained and the petitioner resubmitted the documentation to FIS for a reevaluation of the 
beneficiary's qualifications. 
In response to the director's RFE dated Janua 
 11, 2007, the petitioner submitted an initial 
academic evaluation prepared by 
 dated March 15, 2007. eferred to 
the beneficiary's First Certificate in English from the University of Cambridge, and the transcript of 
the beneficiary's two year full-time BTEC Higher National Diploma in computer studies, and stated 
that the beneficiary has the equivalent of the completion of the second and third years of university- 
level credit from a U.S. regionally accredited college or university. She then combined the 
beneficiary's educational background and employment experience to determine that the beneficiary 
had the equivalent of a bachelor's degree in operations management from a U.S. accredited college 
or university. 
Based on his documented two years of university level studies, the beneficiary possesses a foreign 
Higher National Diploma in Computing. Thus, the issues on appeal are whether this degree is a 
foreign degree equivalent to a U.S. baccalaureate degree or, if not, whether it is ap ropriate to 
B 
consider the beneficiary's years of experience in addition to that degree to satisfj jr2" Preference 
requirements. We must also consider whether the beneficiary meets the job requirements of the 
proffered job as set forth on the labor certification. 
Eligibility for the Classification Sought 
As noted above, the ETA 750 in this matter is certified by DOL. DOL's role is limited to determining 
whether there are sufficient workers who are able, willing, qualified and available and whether the 
employment of the alien will adversely affect the wages and working conditions of workers in the 
United States similarly employed. Section 212(a)(5)(A)(i) of the Act; 20 C.F.R. 5 656.1(a). 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. Lj 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305,1309 (9' Cir. 1984); Madany v. Smith, 696 F.2d 1008,1012-1013 (D.C. Cir. 1983). 
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published 
decisions from the circuit court of appeals from whatever circuit that the action arose. See N.L.R. B. 
v. Askkenary Proper@ Management Corp 8 17 F. 2d 74, 75 (9' Cir. 1987) (administrative agencies 
are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd. 
Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9' Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the APA, even 
when they are published in private publications or widely circulated). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. $ 1 153(a)(3) as amended in 1976. At that time, this section provided: 
Visas shall next be made available . . . to qualified immigrants who are members of 
the professions . . . . 
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. $1 153(b)(2)(A), which provides: 
Visas shall be made available . . . to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent . . . . 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244 is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, 101" Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at 6786 (Oct. 26,1990). 
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580- 
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
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. 10 1-649 (1 990), and the Joint Explanatory Statement of the Committee of Conference, 
the Service specifically noted that both the Act and the legislative history indicate that an alien must 
have at least a bachelor's degree: 
Page 5 
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. More specifically, a three-year bachelor's degree or a 
two year HND will not be considered to be the "foreign equivalent degree" to a United States 
baccalaureate degree. Matter of Shah, 17 I&N Dec. at 245. Where the analysis of the beneficiary's 
credentials relies on work experience alone or a combination of multiple lesser degrees, the result is 
the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree."3 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. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. 5 204.5(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." We cannot conclude that the evidence required to demonstrate that an alien 
is an advanced degree professional is any less than the evidence required to show that the alien is a 
professional. To do so would undermine the congressionally mandated classification scheme by 
allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the 
commentary accompanying the proposed advanced degree professional regulation specifically states 
that a "baccalaureate means a bachelor's degree received from a college or university, or an 
equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare 
3 Compare 8 C.F.R. tj 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimrnigrant visa 
classification, the "equivalence to completion of a college degree" as including, in certain cases, a 
specific combination of education and experience). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. 
Page 6 
8 C.F.R. tj 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"). 
The record contains evidence that the beneficiary received his HND diploma from the South Bank 
Polytechnic in London while the ETA Form 750 indicates that the beneficiary received his diploma 
from South Bank University. Whether South Bank is a university or a polytechnic within the 
university, or an independent polytechnic, the record does not establish that the diploma the 
beneficiary received is the equivalent of a four-year U.S. baccalaureate degree. Neither evaluators 
makes this assertion. -combines the beneficiary's university-level studies with his work 
experience to determine the beneficiary has the equivalent of a U.S. baccalaureate degree in 
operations management, while combines the beneficairy's university level studies at South 
Bank Polytechnic, with a certificate in computer programming obtained from the Association of 
Computer Professionals, London, England, in July 13, 1988, as well as a five month course in 
Foreign Trade in 1991 to reach the same concl~sion.~ None of the above-referenced certificates or 
training would be considered university-level studies as the certificates are not issued by a college or 
university. 
USCIS uses an evaluation by a credentials evaluation organization of a person's foreign education as 
an advisory opinion only. USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. However, where an opinion is not in accord with other information 
or is in any way questionable, CIS is not required to accept or may give less weight to that evidence. 
Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). In the instant petition, the AAO 
would not give any weight to the two evaluations submitted to the record. Both evaluators examine 
the beneficiary's academic credentials and non-university level training describing 
the "equivalent" of a bachelor's degree rather than a foreign equivalent degree. Further, in her 
evaluation, used the rule to equate three years of the beneficiary's work experience for 
one year of education, but that equivalence applies to non-immigrant H1B petitions, not to 
immigrant petitions. See 8 CFR tj 2 14.2(h)(4)(iii)(D)(5). 
also apparently examined a Spanish language document from the Camara Oficial de 
Comercio, Industria Y Navegacion de la Coruna, Spain, issued in May 23, 1991, as part of his 
evaluation. He refers to it as the beneficiary's "5-month course in Foreign trade."This document is found 
in the appeal materials. The AAO would not accept this document as part of the beneficiary's academic 
or training experience. First, it is not issued by a college or university. Second, it is in a foreign 
language. Pursuant to the terms of 8 C.F.R. $ 103.2(b)(3): 
Translations. 
 Any document containing foreign language submitted to [USCIS] shall be 
accompanied by a full English language translation which the translator has certified as complete 
and accurate, and by the translator's certification that he or she is competent to translate from the 
foreign language into English. 
With regard to the beneficiary's Higher National Diploma, we have reviewed the Electronic 
Database for Global Education (EDGE) created by the American Association of Collegiate 
Registrars and Admissions Officer (AACRAO). AACRAO, according to its website, is "a nonprofit, 
voluntary, professional association of more than 10,000 higher education admissions and registration 
professionals who represent approximately 2,500 institutions in more than 30 countries." AACRAO, 
http://www.aacrao.org/about/ (accessed September 21, 2009) (copy incorporated into the record of 
proceeding). Its mission "is to provide professional development, guidelines and voluntary 
standards to be used by higher education officials regarding the best practices in records 
management, admissions, enrollment management, administrative information technology and 
student services." Id. According to the login page, EDGE is "a web-based resource for the 
evaluation of foreign educational credentials" that is continually updated and revised by staff and 
members of AACRAO. - of International Education Services, "AACRAO 
EDGE Login," http://aacraoedge.aacrao.org/index.php (accessed September 22,2009). 
Authors for EDGE are not merely expressing their personal opinions. Rather, authors for EDGE 
must work with a publication consultant and a Council Liaison with AACRAO's National Council 
on the Evaluation of Foreign Educational Credentials. "An Author's Guide to Creating AACRAO 
International Publications" 5-6 (First ed. 2005), available for download at 
www.aacrao.org/publications/guide - to - creating internationalqub1ications.pdf. 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. at 11-12. 
In the section related to the United Kingdom educational system, EDGE provides a general breakout 
of the educational system in English, Wales and Northern Island. (Copy of EDGE materials 
incorporated into record of proceeding.) EDGE reviews several Business and Technician Education 
Council (BTEC) Higher National Diploma (HND) credentials. EDGE notes that a Higher National 
Diploma awarded after two years of part-time studies "represents attainment of a level of education 
comparable to one year of university study in the United States," and adds "credit may be awarded 
on a course-by-course basis." EDGE also represents that BTEC National Certificate awarded after 
completion of a two-year , part-time program at a polytechnic represents "attainment of a level of 
education comparable to completion of a vocational or other specialized high school curriculum in 
the United States." EDGE finally represents that a BTEC HND following a BTEC National 
Diploma in the same field can be awarded after completion of two years of full-time study or three 
years of part-time study. It further states that this BTEC HND "represents attainment of a level of 
education comparable to a bachelor's degree in the United States." 
The petitioner on appeal submits a letter from 
 in Computer 
Studies, Director of Technical studies, 
 states that the 
beneficiary completed a two year full time 
 also outlines the 
program's fourteen study units, and the beneficiary's marks and grades. The record also indicates 
- 
that the beneficiary received his primary and secondary education in Spain prior to his HND studies 
in London, and did not indicate any earlier BTEC National Diploma. Thus, the EDGE description of 
the two year fulltime HND after the completion of another BTEC national diploma in the same field 
would not apply to the beneficiary. The beneficiary's BTEC Higher National Diploma appears to be 
equivalent to either to one or two years of university-level studies. Based on the EDGE materials 
and information, the beneficiary does not possess a foreign degree that is equivalent to a U.S. 
baccalaureate 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. 
Qualifications for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (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. 5 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 (9' Cir. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
2 12(a)[(5)] 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 certzfication in no way indicates that the alien offered the 
certified job opportunity is qualzped (or not qualzfied) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K. R.K. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on Form ETA-750 Part A. This section of the 
application for alien labor certification, "Offer of Employment," describes the terms and conditions 
of the job offered. It is important that the ETA-750 be read as a whole. The instructions for the 
Form ETA 750A, item 14, provide: 
Minimum Education, Training, and Experience Required to Perform the Job 
Duties. Do not duplicate the time requirements. For example, time required in 
training should not also be listed in education or experience. Indicate whether months 
or years are required. Do not include restrictive requirements which are not actual 
business necessities for performance on the job and which would limit consideration 
of otherwise qualified U.S. workers. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. The only rational manner by which 
USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job 
in a labor certification is to examine the certified job offer exactly as it is completed by the 
prospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 
1984) (emphasis added). USCIS's interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. USCIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
Regarding the minimum level of education and experience required for the proffered position in this 
matter, Part A of the labor certification reflects the following requirements: 
Block 14: 
Education: 
 Grade School: 10; High School: two; College: four 
College Degree Required: Operations Management 
Experience: 
 10 years in the proffered position, or ten years as a marketing 
manager. 
Block 15: (Blank) 
The beneficiary indicated that he completed both secondary school and high school studies in La 
Coruna, Spain, that he also completed a first certificate in English at the English Center, London UK 
in 1987, and that he undertook an undefined course of study at the London International College, 
London, United Kingdom from January 1998 to June 1998, and did not indicate that he receive d any 
degree or certificate from this course of studies. The beneficiary does not have a "United States 
baccalaureate degree or a foreign equivalent degree," and, thus, does not qualify for preference visa 
classification under section 203(b)(2) of the Act. In addition, the beneficiary does not meet the job 
Page 10 
requirements on the labor certification. His university-level studies are in the field of computer 
studies, and not in operations management. 
Beyond the decision of the director, the petitioner also has not established its ability to pay the 
proffered wage as of the 2004 priority date onward. An application or petition that fails to comply 
with the technical requirements of the law may be denied by the AAO even if the Service Center 
does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. 
United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003); see 
also Dor v. INS, 89 1 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de 
novo basis). 
The regulation at 8 C.F.R. 5 204.5(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 Form ETA 750, Application for Alien Employment Certification, 
was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. 
tj 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the 
qualifications stated on its Form ETA 750, Application for Alien Employment Certification, as certified 
by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 
(Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on August 9,2004. The proffered wage as stated on the Form 
ETA 750 is $90,000 per year. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1 147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeaL5 Since the director did not comment on the petitioner's ability to 
The submission of additional evidence on appeal is allowed by the instructions to the Form I- 
290B, which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(l). The 
record in the instant case provides no reason to preclude consideration of any of the documents 
pay the proffered wage in his decision, counsel submits nothing relevant to the petitioner's ability to 
pay on appeal. Relevant evidence in the record includes the petitioner's Form 1065 U.S. Return of 
Partnership Income for tax year 2005, as well an unaudited two page document that examines the 
petitioner's Profit and Loss expenses for the year January 3 1 to December 3 1, 2005 and compares 
these figures with the same items for January 31, to December 31, 2004.~   he record does not 
contain any other evidence relevant to the petitioner's ability to pay the wage. 
The record indicates the petitioner is structured as a limited liability company and filed its tax returns 
on IRS Form 1065.~ On the petition, the petitioner claimed to have been established in 1998, to have 
a gross annual income of $1,775,919, a net annual income of $1 82,268, and to currently employ 65 
workers. On the Form ETA 750, signed by the beneficiary on August 3 2004, the beneficiary 
claimed to have worked for the petitioner from March 3,2004 and until the date he signed the Form 
ETA 750, Part B. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
an ETA 750 labor certification application establishes a priority date for any immigrant petition later 
based on the ETA 750, the petitioner must establish that the job offer was realistic as of the priority date 
and that the offer remained realistic for each year thereafter, until the beneficiary obtains lawfd 
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. 6 12 (Reg. Comrn. 1967). 
The AAO notes that the petitioner submitted an unaudited Profit and Loss statement as evidence of 
its ability to pay the proffered wage during the 2004 priority year. However, counsel's reliance on 
unaudited financial records is misplaced. The regulation at 8 C.F.R. $204.5(g)(2) makes clear that 
newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
The record is not clear why this document only examines the dates January 3 1 to December 3 1, or 
whether January 3 1 was a typographical error. 
7 
 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 TRS 
Form 8832, Entity Classification Election. In the instant case, the petitioner, a two-member LLC, is 
considered to be a partnership for federal tax purposes. 
Page 12 
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. 
Therefore the record contains no evidence as to the petitioner's ability to pay the proffered wage 
during the 2004 priority year. 
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 provided no evidence 
of any wages paid to the beneficiary. 
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 11 1 (lSt Cir. 2009). 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', 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's wage expense is misplaced. 
Showing that the petitioner paid wages in excess of the proffered wage is insufficient. 
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. 
River Street Donuts at 116. "[USCIS] and judicial precedent support the use of tax returns and the 
net income Jigures 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 March 20, 2007 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 2005 federal income tax return is the most recent return available. As previously 
discussed, the petitioner did not submit its tax return for 2004 or any other regulatory described 
evidence to the record. Therefore the AAO can only examine the petitioner's 2005 tax return. The 
petitioner's tax return stated its net income as detailed in the table below. 
- In 2005, the petitioner's Form 1065 stated net income of $184,969. 
Therefore, for the year 2005, the petitioner did establish that it had sufficient net income to pay the 
proffered wage. 
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 assets. Net current assets are the difference 
between the petitioner's current assets and current liabilitie~.~ A partnership's year-end current 
assets are shown on Schedule L, lines l(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. As stated 
* For 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 the 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 of IRS Form 1065 at line 1 of the Analysis of Net Income (Loss) of Schedule K. In the 
instant case, the petitioner's Schedules K have relevant entries for additional *deductions in * and, 
therefore, its net income is found on line 1 of the Analysis of Net Income (Loss) of the Schedules K. 
According to Barron 's Dictionary of Accounting Terms 1 17 (31d ed. 2000), "current assets" consist 
of items having (in most cases) a life of one year or less, such as cash, marketable securities, 
inventory and prepaid expenses. "Current liabilities" are obligations payable (in most cases) within 
one year, such accounts payable, short-term notes payable, and accrued expenses (such as taxes and 
salaries). Id. at 1 1 8. 
previously, the petitioner did not submit its 2004 tax return to the record. Therefore the AAO cannot 
determine whether the petitioner had sufficient net current assets in the 2004 priority year to pay the 
proffered wage. Therefore, the petitioner did not establish that it had sufficient net current assets to 
pay the proffered wage. 
Thus, fiom the date the Form ETA 9089 was accepted for processing by the DOL, the petitioner had 
not established that it had the continuing ability to pay the beneficiary the proffered wage as of the 
priority date through an examination of wages paid to the beneficiary, or its net income or net 
current assets, except for tax year 2005. 
USCIS may consider the overall magnitude of the petitioner's business activities in its determination 
of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 
(BIA 1967). The petitioning entity in Sonegawa had been in business for over 11 years and 
routinely earned a gross annual income of about $100,000. During the year in which the petition 
was filed in that case, the petitioner changed business locations and paid rent on both the old and 
new locations for five months. There were large moving costs and also a period of time when the 
petitioner was unable to do regular business. The Regional Commissioner determined that the 
petitioner's prospects for a resumption of successful business operations were well established. The 
petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her 
clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had 
been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in 
California. The Regional Commissioner's determination in Sonegawa was based in part on the 
petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, 
USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls 
outside of a petitioner's net income and net current assets. USCIS may consider such factors as the 
number of years the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic 
business expenditures or losses, the petitioner's reputation within its industry, whether the 
beneficiary is replacing a former employee or an outsourced service, or any other evidence that 
USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In the instant case, the record does not contain evidence of any such factors contributing to the 
petitioner's totality of circumstances. Thus, assessing the totality of the circumstances in this 
individual case, it is concluded that the petitioner has not established that it had the continuing 
ability to pay the proffered wage. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.