dismissed EB-2 Case: Market Research Analysis

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
LIN 07 153 52723 
IN RE: Petitioner: 
Beneficiary: 
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 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
u. 
Z~obert P. Wiernann, Chlef 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska 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 real estate firm. It seeks to employ the beneficiary permanently in the United States 
as a market research analyst pursuant to section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 1 153(b)(2). 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. As required by statute, the petition was 
accompanied by certification from the Department of Labor (DOL). The director determined that the 
petitioner had not established that the beneficiary is eligible for classification under section 
203(b)(2) of the Act, that the beneficiary meets the requirements of the alien employment 
certification or that the petitioner had the continuing ability to pay the beneficiary the proffered wage 
beginning on the priority date of the visa petition. 
On appeal, the petitioner's president, 
 submits a brief and additional evidence.' The 
petitioner also requests oral argument. 
 The regulations provide that the requesting party must 
explain in writing why oral argument is necessary. Furthermore, Citizenship and Immigration 
Services (CIS) has the sole authority to grant or deny a request for oral argument and will grant 
argument only in cases involving unique factors or issues of law that cannot be adequately addressed 
in writing. See 8 C.F.R. 103.3(b). 
lists seven reasons why oral argument should be granted. The first five reasons are all 
va ue assertions that the petitioner will argue why the evidence submitted was sufficient. Mr. 
dm does not explain in these first five "reasons" why the petitioner's assertions in this regard cannot adequately be addressed in writing. also asserts that he will present a bank 
check at the time of oral argument that would cover the proffered wage. He does not explain how 
presenting such a check will establish the petitioner's ability to pay the proffered wageas of the 
priority date or why the petitioner cannot submit a copy of such a check in support of a written brief. 
Finally, asserts that the beneficiary will appear at oral argument to demonstrate her 
"talent, interpersonal skills, persuasiveness, professional appearance and negotiating skills." Mr. 
is not persuasive. 
 As will be discussed in more detail below, determinations of 
exceptional ability are not made based on a subjective evaluation of the alien's skills, but on whether 
the alien meets at least three of the objective regulatory criteria listed at 8 C.F.R. tj 204.5(k)(3)(ii). 
In this instance, identified no unique factors or issues of law to be resolved. 
Moreover, the written record of proceeding fully represents the facts and issues in this matter. 
Consequently, the request for oral argument is denied. 
1 
 The petitioner, as reflected on the Form 1-140 petition, is a corporation, not an individual. The petitioner's 
president has acted on behalf of the corporation in this matter. As will be discussed below in the body of this 
decision, it is a well-recognized principle that a corporation is a separate and distinct legal entity from its 
owners or stockholders. See Matter of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comrnr. 1980); Matter of 
Aphrodite Investments Limited, 17 I&N Dec. 530 (Comrnr. 1980); Matter of M-, 8 I&N Dec. 24 (BIA 1958; 
A.G. 1958). 
Page 3 
For the reasons discussed below, while the petitioner has now demonstrated that the beneficiary 
possesses the associate's degree required for the job as certified by (DOL), the petitioner has not 
overcome the director's other concerns. 
Eligibility as a Member of the Professions Holding an Advanced Degree or Alien of 
Exceptional Ability 
The petitioner indicated on the Form 1-140 that it was seeking to classify the beneficiary under 
section 203(b)(2) of the Act as a member of the professions holding an advanced degree or alien of 
exceptional ability. The Form 1-140 does not allow for the petitioner to specify which of the two 
sub-classifications it is pursuing. The petitioner's cover letter does not explicitly specify whether the 
petitioner seeks to classify the beneficiary as a member of the 
degree or an alien of exceptional ability, although the petitioner's president, 
asserts that he "immediately recognized the exceptional ability which has been demonstrated" by the 
beneficiary. The petitioner did not explain how the beneficiary meets at least three of the regulatory 
criteria set forth at 8 C.F.R. 9 204.5(k)(3)(ii) although the list of supporting documents does 
reference some of the regulatory criteria. 
The director concluded that "no representations have been made that the beneficiary has exceptional 
ability" and that the job certified by DOL does not require a member of the professions holding an 
advanced degree. See 8 C.F.R. 8 204.5(k)(4)(providing that the job itself must require a member of 
the professions holding an advanced degree or an alien of exceptional ability). 
On appeal, the petitioner asserts that the evidence submitted was "in conformance with the initial 
evidence required for a person of exceptional ability." The petitioner references a letter attesting to 
the beneficiary's remuneration and letters that affirm the beneficiary's "exceptional ability." The 
petitioner does not specifically address or even acknowledge the regulatory criteria set forth at 
8 C.F.R. !j 204.5(k)(3)(ii). We will consider the evidence submitted under those mandatory criteria. 
The first issue to resolve is the title of the job actually being offered. The petition being adjudicated 
is the Form 1-140 petition filed with Citizenship and Immigration Services (CIS). On this form, Part 
6, the petitioner indicated that the proposed employment is "Market Research Analyst" with "SOC" 
Code 19-3021. This is the same job title and O*NET code listed on Part H, lines 2 and 3 of the alien 
employment certification. 
We acknowledge, however, that on Part H, line 11 of the alien employment certification, which 
requests a listing of the job duties, the petitioner listed market research analysis duties and then 
stated: "In the alternative, willing to accept an administrative assistant." While we do not have the 
jurisdiction to readjudicate the alien employment certification, 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. 8 656.1(a). It is within 
our jurisdiction to determine whether or not the alien is qualified for a specific immigrant classification 
or even the job offered. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 
(9th Cir. 1984); Madany v. Smith, 696 F.2d 1008,1012-1013 (D.C. Cir. 1983). 
The petitioner points to no statute or regulation, and we know of none, that would allow an employer 
to classify a beneficiary as an alien of exceptional ability as defined at 8 C.F.R. 5 204.5(k)(3)(ii) 
using evidence relating to more than one occupation. In determining whether an alien is an alien of 
exceptional ability, we must consider the evidence relating to the occupation identified on the Form 
1-140 petition, the form falling under our jurisdiction, which must match the job opportunity 
identified on Part F, lines 2 and 3 of the alien employment certification. 20 C.F.R. fj 656.30(~)(2). 
In this matter, the job opportunity listed on the Form 1-140 and Part F, lines 2 and 3 on the ETA 
Form 9089, is market research analyst, O*NET Code 19-3021.00. 
The petitioner has not cited any regulation or DOL policy that would shed light on the legal 
significance of the "alternative" occupation listed on Part H, line 11, a line designated for the job 
duties, not an "alternative" occupation. As stated above, the regulation at 20 C.F.R. 8 656.30(~)(2) 
provides that a labor certification for a specific job offer is valid only for the particular job 
opportunity. In the absence of additional legal guidance, we must presume that the particular job 
opportunity being certified is the one listed in Part F, lines 2 and 3, the only section that is 
designated for listing the job title and O*NET Code. We note that "market research analyst" and 
code 19-3021.00 are the occupation and O*NET Code listed on DOL's cover letter advising the 
petitioner that the alien employment certification had been approved. Notably, administrative 
assistants fall under an entirely separate O*NET Code, 43-601 1.00. 
In light of the above, the petitioner must demonstrate that the beneficiary is an alien of exceptional 
ability in the field of market research analysis, a position she had never held as of the priority date. 
The regulation at 8 C.F.R. 5 204.5(k)(3)(ii) sets forth six criteria, at least three of which an alien 
must meet in order to qualify as an alien of exceptional ability in the sciences, the arts, or business. 
These criteria follow below. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered." Therefore, evidence submitted to establish 
exceptional ability must somehow place the alien above others in the field in order to fulfill the 
criteria below; qualifications possessed by every member of a given field cannot demonstrate "a 
degree of expertise significantly above that ordinarily encountered." The criteria follow. 
An official academic record showing that the alien has a degree, diploma, certzficate, or similar 
award from a college, university, school, or other institution of learning relating to the area of 
exceptional ability 
Section 203(b)(2)(C) of the Act provides that the possession of a degree, diploma, certificate or 
similar award from a college, university school or other institution of learning shall not by itself be 
considered sufficient evidence of exceptional ability. Thus, we must determine whether the 
petitioner's degree is indicative of or consistent with a degree of expertise significantly above that 
ordinarily encountered. 
Moreover, the petitioner must demonstrate that the beneficiary was an alien of exceptional ability as 
of the priority date. See 8 C.F.R. fjfj 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Regl. Commr. 1971). In this matter, the priority date is September 22, 2006, the date the alien 
employment certification was accepted for processing by DOL. 
 See 8 C.F.R. fj 204.5(d). The 
beneficiary received her Bachelor of Business Administration from The Bernard M. Baruch College 
of the City University of New York in February 2007. As the beneficiary did not have a 
baccalaureate as of the priority date, we cannot consider this degree. 
On appeal, counsel submits evidence that the beneficiary received an Associate in Science degree in 
Business-Business Administration from the State University of New York Rockland Community 
College in December 2003. We can consider this degree. 
On the ETA Form 9089, the petitioner indicated that the proffered position is "Market Research 
Analyst," O*NET Code 19-3021.00. The petitioner indicated that an associate's degree was 
required for the position. Moreover, according to DOL's Occupational Outlook Handbook 176 
(2006-2007 ed.) under the heading "Market and Survey Researchers," which includes O*NET Code 
19.3021.00, a "bachelor's degree is the minimum educational requirement for many market and 
survey research jobs." The "details" page for O*NET Code 19-3021.00 on the O*NET website, 
http://online.onetcenter.org/linMdetails/l9-3021.00, indicates that 82 percent of individuals in this 
occupation have a bachelor's degree or higher. 
As of the priority date in this matter, the beneficiary only had an associate's degree. As 82 percent 
of individuals in the proffered position have a bachelor's degree or above, the petitioner has not 
demonstrated that the beneficiary's associate's degree is indicative of a degree of expertise 
significantly above that ordinarily encountered in the field. Thus, the petitioner has not established 
that the beneficiary meets this criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at 
least ten years of full-time experience in the occupation for which he or she is being sought 
On the ETA Form 9089, Part J, the petitioner indicated that the beneficiary had worked as a sales 
assistant and administrative assistant. The record lacks evidence that the beneficiary has 10 years of 
full-time experience as a market research analyst, the occupation for which she is being sought as 
required under 8 C.F.R. § 204.5(k)(3)(ii)(B). 
A license to practice the profession or certzfication for a particular profession or occupation 
Section 203(b)(2)(C) of the Act provides that the possession of a license to practice or certification 
for a particular profession or occupation shall not by itself be considered sufficient evidence of 
exceptional ability. Thus, we must determine whether the beneficiary's license is indicative of or 
consistent with a degree of expertise significantly above that ordinarily encountered. 
Page 6 
The petitioner submitted evidence that the beneficiary is a "duly licensed real estate sales person and 
is affiliated with" the petitioning company. The petitioner also submitted a certificate from the 
American Marketing Association confirming that the beneficiary "has successfully completed 
requirements for the Professional Certified Marketer Program." 
The beneficiary's real estate sales person license is not in the field of marketing research analysis. 
Thus, it cannot demonstrate her exceptional ability in the field of marketing research analysis. In 
fact, the license, issued to the beneficiary as an affiliate of the petitioner, raises the concern that the 
petitioner no longer intends to employ her as a market research analyst but as a sales associate. The 
regulation at 20 C.F.R. 5 656.30(~)(2) provides that an alien employment certification for a specific 
job offer "is valid only for the particular job opportunity." Finally, the beneficiary's real estate 
license is dated March 5, 2007, after the priority date in this matter. Thus, it is not evidence of 
eligibility as of the priority date, the date as of which the petitioner must establish the beneficiary's 
eligibility. See 8 C.F.R. $5 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. at 49. 
The record contains no evidence regarding the significance of the beneficiary's Professional 
Certified Marketer Program certification from the American Marketing Association. Moreover, the 
certificate is undated. Thus, the petitioner has not established that the beneficiary received this 
certification prior to the priority date in this matter. 
In light of the above, the petitioner has not demonstrated that the beneficiary met this criterion as of 
the priority date in this matter. 
Evidence that the alien has commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability 
, founder of Coritsidis and Lambros, 
 a letter that the 
beneficiary is working for that firm as an administrative assistant. 
 further asserts that 
the beneficiary's "abilities have led to remuneration for her 
 her exceptional 
ability." 
The letter fromcannot serve to meet this criterion. First, s discusses the 
beneficiary's remuneration as an administrative assistant. Such remuneration cannot demonstrate 
exceptional ability as a market research analyst. Second, the petitioner did not provide any objective 
evidence to support -' assertion. The regulation at 8 C.F.R. 5 103.2(b)(2) requires the 
submission of primary evidence unless such evidence is unavailable or does not exist. Primary 
evidence of the beneficiary's remuneration would be in the form of a Form W-2 Wage and Tax 
Statement, quarte 
 x returns or pay statements. The petitioner did not submit such 
evidence. In fact, 
 does not even provide the beneficiary's exact remuneration. Third, 
the petitioner has not submitted any evidence of average and high-end remuneration nationally for 
market research analysts for comparison purposes. Thus, even if the petitioner had established the 
beneficiary's exact remuneration, without data showing the average and high-end remuneration for 
market research analysts nationally, we would not be able to determine whether the beneficiary's 
Page 7 
remuneration is indicative of or consistent with a degree of expertise significantly above that 
ordinarily encountered in the field of market research analysis. 
In light of the above,unsupported assertion that the beneficiary's remuneration is 
indicative of exceptional ability is insufficient. 
Evidence of membership in professional associations 
The petitioner submitted an undated letter from the American Marketing Association thanking the 
beneficiary for joining the association, which boasts 38,000 members. First, the petitioner has not 
demonstrated that the beneficiary was a member of the association as of the priority date in this 
matter, the date as of which the petitioner must establish the beneficiary's eligibility. See 8 C.F.R. 
$0 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. Moreover, the evidence submitted to 
meet a given criterion must be indicative of or consistent with exceptional ability in the proffered 
position. The record contains no evidence that the association limits membership to those who 
demonstrate achievements consistent with a degree of expertise significantly above that ordinarily 
encountered in the field of marketing research analysis. 
Evidence of recognition for achievements and signzficant contributions to the industry orfield by 
peers, governmental entities, or professional or business organizations 
The petitioner submitted a "Certificate of Merit" from the New York State Assembly issued to the 
beneficiary in May 2003. The record does not establish that this certificate was issued to recognize a 
significant contribution to the field of marketing research analysis, an occupation in which the 
beneficiary had never engaged as of the date of filing. The petitioner also submitted evidence that 
the beneficiary received student scholarships at Rockland Community College. The petitioner has 
not established how a scholarship, based on academic achievements, can be considered recognition 
for significant contributions to a field the student has not yet entered. 
Finally, the petitioner initially submitted letters from 
 the Honorable 
Judge Larry Stephen and the beneficiary's former 
the beneficiary's exceptional ability. On appeal, the etitioner submits a letter from 
President and Chief Operating Office of the Realty Group, who asserts that he has done 
business with the law firm employing the beneficiary as an administrative assistant and that the 
beneficiary has demonstrated exceptional ability in that role. 
Reference letters do not constitute the type of formal recognition contemplated by the regulation at 
8 C.F.R. $ 204.5(k)(3)(ii)(F). Moreover, none of the letters identify a specific contribution by the 
beneficiary to the field of market research analysis or explain how this contribution has influenced 
the field. Simply performing well as a student or performing the job responsibilities of an 
administrative assistant in a competent and professional manner is not a significant contribution to 
the field of market research analysis. 
In light of the above, the petitioner has not demonstrated that the beneficiary is an alien of 
exceptional ability. 
Beyond the decision of the director, the petitioner has not demonstrated that the job requires an alien 
of exceptional ability as required under 8 C.F.R. 5 204.5(k)(4). For example, the job requires only 
an associate's degree, does not require any experience and does not require a specific license. 
Moreover, the petitioner is only offering $213 over the prevailing wage, suggesting that the job will 
not be compensated at a level indicative of exceptional ability. 
Ability to Pay the Proffered Wage 
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, the day the ETA Form 9089 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. 5 204.5(d). Here, as stated above, the 
ETA Form 9089 was accepted for processing on September 22, 2006. The proffered wage as stated 
on the ETA Form 9089 is $55,000 annually. On Part K of the ETA Form 9089, signed by the 
beneficiary, the beneficiary did not claim to have worked for the petitioner. 
On the petition, the petitioner claimed to have an establishment date on November 18, 1997, a gross 
annual income of $97,250, a net income of $83,293 and one employee. In support of the petition, 
the petitioner submitted its 2006 Internal Revenue Service (IRS) Form 1120S, U.S. Income Tax 
Return for an S Corporation. 
Contrary to the claims made on the Form 1-140 petition, the tax return submitted initially reflects the 
following information: 
Gross income $15,000 
Net income ($643) 
Total Assets $125,000 
Current Assets Not provided 
Current Liabilities Not provided 
Net current assets Unknown 
In an accompanying letter, 
 the petitioner's president, asserted that the petitioner has 
no liabilities and the $125,000 in total assets listed on the tax return constitute the company's net 
current assets. provides no explanation for the significant discrepancy between the 
gross and net income listed on the Form 1-140, filed in May 2007, and the gross and net loss listed 
on the 2006 tax return. We note that 
 signed both the Form 1-140 and the tax return. 
In addition, the petitioner submitted a bank letter dated April 26, 2007 asserting that the petitioner 
account with a balance of $1 16,000 and financial statements for accounts owned by 
personally. 
The director determined that the evidence submitted did not establish that the petitioner had the 
continuing ability to pay the proffered wage beginning on the priority date, and denied the petition. 
On appeal, the petitioner asserts that the director erred in determining that the petitioner's tax returns 
reflected no current assets. The petitioner notes that the tax return lists $125,000 in total assets and 
asserts that the petitioner was not required to complete Schedule L because the petitioner's total 
receipts and assets are less than $250,000. The petitioner further asserts that the director should have 
considered the petitioner's bank statement. The petitioner further asserts that the director should 
have considered the sole shareholder's assets because, under New York law, the ten majority 
shareholders are liable for the wages of the employees of a closed corporation. The petitioner does 
not provide a citation for this New York law, but we have confirmed this section of law, Bus. 
Corp. 5 630(a). 
The petitioner submits what m characterizes as an "amended federal income tax return 
which has been duly filed with the Internal Revenue Service." The new Form 1120s is checked as 
an amended return but the record contains no evidence that this amended form was actually filed 
with the IRS. Schedule L reflects $125,000 in cash, no additional current assets, no current 
liabilities, and $125,543 in loans from shareholders. This information directly contracts the initial 
that the petitioner had "no liabilities." Moreover, the petitioner listed $36 in 
of the IRS Form 1120S, suggesting that the petitioner has depreciable assets. 
The amended Schedule L does not include any depreciable assets. Finally, as stated above, the 
petitioner indicated on the Form 1-140 petition that its annual gross income was $97,250 and its net 
annual income was $83,293, numbers that are totally inconsistent with the petitioner's 2006 tax 
return, the only tax return submitted and the most recent that would have been available when the 
petition was completed and filed. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 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. The petitioner has not resolved the inconsistencies 
within the 2006 tax return and between the tax return and claims advanced by the petitioner. 
Therefore, the 2006 tax returns are not credible documents. 
Where the petitioner has submitted the requisite initial documentation required in the regulation at 
8 C.F.R. § 204.5(g)(2), CIS will first examine whether the petitioner employed and paid the 
beneficiary during the relevant 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 did not establish that it employed and paid the beneficiary the full proffered wage in 
2006. 
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, CIS will next examine the net income figure reflected on 
the petitioner's federal income tax return, without consideration of depreciation or other expenses. 
Federal courts have recognized the reliance on federal income tax returns as a valid basis for 
determining a petitioner's ability to pay the proffered wage. See Elatos Restaurant Corp. v. Sava, 
632 F. Supp. 1049, 1054 (S.D.N.Y. 1986). See also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 
532, 536 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080, 1083 (S.D.N.Y. 
1985); Ubeda v. Palmer, 539 F. Supp. 647,650 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, 
showing that the petitioner paid wages in excess of the proffered wage is insufficient. In K.C.P. 
Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the 
petitioner's corporate income tax returns, rather than the petitioner's gross income. The court 
specifically rejected the argument that the Service should have considered income before expenses 
were paid rather than net income. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a 
petitioner's ability to pay a 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, CIS will review the petitioner's assets. 
We reject, however, any argument that the petitioner's total assets should be considered in the 
determination of the ability to pay the proffered wage. The petitioner's total assets include 
depreciable assets that the petitioner uses in its business. Those depreciable assets will not be 
converted to cash during the ordinary course of business and will not, therefore, become funds 
available to pay the proffered wage. Further, the petitioner's total assets must be balanced by the 
petitioner's liabilities. Otherwise, they cannot properly be considered in the determination of the 
petitioner's ability to pay the proffered wage. Rather, CIS will consider net current assets as an 
alternative method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ A 
corporation's year-end current assets are shown on Schedule L, lines l(d) through 6(d). Its year-end 
2 
 According to Burron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
current liabilities are shown on lines 16(d) through 18(d). If a corporation's end-of-year net current 
assets are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage out of those net current assets. 
The petitioner has not demonstrated that it paid any wages to the beneficiary during 2006. In 2006, 
the petitioner shows a gross income of only $15,000 and a net loss. The amended tax return, as 
stated above, now purports to document $125,000 in net current assets. As discussed above, 
however, this document is not credible. Moreover, even if we accepted that the petitioner had 
$125,000 in cash as of December 31, 2006 and no current liabilities, the entire amount of cash 
derives from a loan fiom the sole shareholder. As noted above, the petitioner was established in 
1987 and is not a start-up company. The fact that it shows very minimal gross income and that its 
only assets derive fiom a shareholder loan is not indicative of a financially stable company that can 
demonstrate the ability to pay the proffered wage as of the priority date. 
The petitioner's reliance on the balance in the petitioner's bank account is misplaced. First, bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. 5 204.5(g)(2), required to 
illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional material 
"in appropriate cases," the petitioner in this case has not demonstrated why the documentation specified 
at 8 C.F.R. 5 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the 
petitioner. Second, bank statements show the amount in an account on a given date, and cannot show 
the sustainable ability to pay a proffered wage. Third, no evidence was submitted to demonstrate that 
the hnds reported on the petitioner's bank statements somehow reflect additional available funds that 
were not reflected on its tax return, such as the cash specified on Schedule L considered above in 
determining the petitioner's net current assets. 
Finally, the petitioner's reliance on the assets of its sole shareholder is not persuasive. It is a well- 
recognized principle that a corporation is a separate and distinct legal entity from its owners or 
stockholders. See Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Commr. 1980); Matter of 
Aphrodite Investments Limited, 17 I&N Dec. 530 (Commr. 1980); Matter of M-, 8 I&N Dec. 24 
(BIA 1958; A.G. 1958). CIS will not consider the financial resources of individuals or entities who 
have no legal obligation to pay the wage. See Sitar Restaurant v. Ashcrop, 2003 WL 22203713, *3 (D. 
Mass. Sept. 18,2003). 
As stated above, the petitioner appears to rely on Bus. Corp. Law 
 630(a) for the proposition that the 
petitioner's sole shareholder is legally obligated to pay the proffered wage. This provision provides: 
The ten largest shareholders . . . shall jointly and severally be personally liable for all 
debts, wages or salaries due and owing to any of its laborers, servants or employees 
other than contractors, for services performed by them for such corporation. Before 
such laborer, servant or employee shall charge such shareholder for such services, he 
shall give notice in writing to such shareholder that he intends to hold him liable under 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
this section. 
 Such notice shall be given within one hundred and eighty days after 
termination of such services. . . . An action to enforce such liability shall be commenced 
within ninety days after the return of an execution unsatisfied against the corporation 
upon a judgment recovered against it for such services. 
This section of the Business Corporation law, however, "was enacted as a safeguard to laborers or 
employees of corporation which upon insolvency of the corporation would leave such working 
people without recourse and without payment for their work, labor and services." See Lindsey v. 
Winkler, 52 Misc. 2d 1037, 1038, 277 N.Y.S. 2d 768, 770 (D.C. NY 2"d Dist. 1967). We are not 
persuaded that this provision obligates the petitioner's shareholder to pay the full proffered wage 
during the beneficiary's period of employment as the petitioner is obligated to do. Rather, the 
petitioner remains primarily liable for the beneficiary's wages. Only if the beneficiary is terminated 
does the petitioner's shareholder become liable for any unpaid back wages and then only if the 
beneficiary first obtains an actual judgment against the petitioner that is then unsatisfied. 
Even if we were to consider the sole shareholder's ability to pay the proffered wage, and we 
emphasize that the petitioner has not demonstrated that it is appropriate for us to do so, when 
considering assets, it is necessary to weigh those assets against liabilities. Even when considering 
the ability of a sole proprietor to pay the proffered wage, we consider the sole proprietor's liabilities 
and expenses. Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 
1983). The record contains no evidence of the expenses and liabilities of the petitioner's sole 
shareholder. 
Ultimately, it is the petitioner's burden to demonstrate that it is making a "realistic job offer." 
Matter of Great Wall, 16 I. & N. Dec. 142, 144 (Regl. Commr. 1977). The record contains no 
evidence that the petitioner's offer to pay the beneficiary $55,000 is realistic. The only tax return 
provided shows gross receipts of only $15,000 and a net loss. The petitioner does not currently pay 
any wages to any employees. The petitioner's only asset is cash loaned from its shareholder. The 
record simply contains no evidence that the petitioner is a financially viable employer that has ever 
or will ever be able to generate sufficient income to cover even a small portion of the proffered 
wage. The fact that the petitioner's shareholder may be, independent of his income from the 
petitioner, a successful lawyer and have personal assets sufficient to pay the proffered wage is not 
persuasive evidence that the job offer itself, made by the petitioner, is realistic. 
The petitioner failed to submit evidence sufficient to demonstrate that it had the ability to pay the 
proffered wage during 2006 or subsequently. Therefore, the petitioner has not established that it had 
the continuing ability to pay the proffered wage beginning on the priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.