dismissed EB-2 Case: Software Consulting

identifying data deleted ~o 
prevent clearly UnWarranl~(:' 
invasion of personal privac) 
YtJBLIC COP\: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department or Homeland Security 
u.s. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: SEP 2 2 2010 
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. § 1 1 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 software consulting firm. It seeks to employ the beneficiary permanently in the 
United States as a senior systems analyst 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, an ETA Form 9089 
Application for Permanent Employment Certification (ETA Form 9089) 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 the beneficiary did not possess a U.S. 
Master's degree or foreign equivalent degree in the field required by the certified ETA Form 9089. 
On appeal, counsel asserts that the petitioner established the beneficiary'S educational qualifications 
with the evaluation stating that the beneficiary attained the equivalent of U.S. Master of Science 
degree in Management Information based the beneficiary'S three year bachelor of science 
degree in mathematics from and two year master of computer management 
degree from the 
The record shows that the appeal is properly and timely 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. 
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. § 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 conducts appellate review on a de novo basis. See Sollane 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.! 
1 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)(I). The record in 
the instant case provides no reason to preclude consideration of any of the documents newly 
submitted on appeal. See Matter a/Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
The record contains the beneficiary's bachelor of science in mathematics and transcripts for 
the three years of studies from the , and master of 
management degree and transcripts for the two years of studies from the _ 
Thus, the issues are whether each degree is on its own a ~ 
foreign equivalent to a u.s. master's degree, if not, whether each of them is on its own a single 
source foreign equivalent to a u.s. baccalaureate degree plus five years of experience. 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 Form 9089 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) ofthe Act; 20 C.F.R. § 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. § 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 (9th 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 NL.R.B. 
v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th 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 (9th Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the AP A, 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'I. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. §1153(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. §1153(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 a/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 
Page 4 
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 st 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 a/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. 101-649 (1990), 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: 
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 will 
not be considered to be the "foreign equivalent degree" to a United States baccalaureate degree. 
Ma~ec. at 245. In the instant case, the three-year degree in mathematics from 
the _ is not the foreign equivalent degree to a U.S. baccalaureate degree. 
Page 5 
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, www.accrao.org.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." 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." According to the registration page for EDGE, http://accraoedge. 
accrao.org/register/index/php, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." 
EDGE confirms that a master of arts, commerce, science awarded upon completion of two years of 
study beyond the two- or three-year bachelor's degree in India is not the .. to 
a u.s. master's Counsel submits educational evaluations 
the beneficiary'S master of computer management r1~n·r~~ 
completion of two years of studies following his three 
year bachelor is the foreign equivalent degree to a U.S. master of science degree in management 
information systems. u.s. Citizenship and Immigration Services (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, USCIS is not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). 
Counsel refers to a decision issued by the AAO concerning the two-year master's degree India 
equivalency to a u.s. master of science degree, but does not provide its published citation. While 8 
C.F.R. § 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the 
administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. § 103.9(a). 
Counsel's reliance on the April 12, 2007 is misplaced. Counsel does 
not provide a published citation relating to the use of total assets or depreciation. While 8 C.F.R. § 
103.3(c) provides that precedent decisions of USC IS, formerly the Service or INS, are binding on all 
USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 
C.F.R. § 103.9(a). 
Therefore, the portion of the director's decision that the beneficiary did not possess a foreign 
equivalent degree to a U.S. master's degree in the required field is affirmed. 
However, EDGE suggests that a master of arts, commerce, science awarded upon completion of two 
years of study beyond the two- or three-year bachelor's degree in India represents attainment of a 
level of education comparable to a bachelor's degree in the United States. In order to have 
experience and education equating to an advanced degree under section 203(b)(2) of the Act, the 
Page 6 
beneficiary must have a single degree that is the "foreign equivalent degree" to a United States 
baccalaureate degree. 8 C.F~ Here the beneficiary's master of computer 
management degree from the _ represents attainment of a level of education 
comparable to a bachelor's degree in computer management in the United States. 
For this classification, advanced degree professional, the regulation at 8 C.F.R. § 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(l)(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). Cf 8 C.F.R. 
§ 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"). 
this the record contains evidence showing that the certificate and transcripts from the 
indicate that the beneficiary was awarded the degree from that university which 
Therefore, the beneficiary has a "United States baccalaureate degree or a foreign equivalent degree," 
and thus, meet the minimum level of education required for the equivalent of an advanced degree, 
namely a Bachelor's degree, for preference visa classification under section 203(b)(2) of the Act. 
However, to qualify for the second preference classification, the beneficiary must establish that he 
possessed at least five years of progressive experience in the specialty after his bachelor's equivalent 
degree but prior to the priority date. 
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. § 1154(b), as one of the determinations incident to the INS's decision 
whether the alien is entitled to sixth preference status. 
Page 7 
KR.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th 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 
212(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 certification in no way indicates that the alien offered the 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id at 1009. The Ninth Circuit, citing KR.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 ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
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. 
In this matter, Part H, line 4, of the labor certification reflects that a master's degree is the minimum 
level of education required. Line 6 reflects that the proffered position requires 12 months (one year) 
of experience in the job offered in addition to the educational requirements. The beneficiary 
obtained his bachelor equivalent degree in April 1999 and the priority date in the instant case is July 
26, 2006, and therefore, the beneficiary must establish that he has at least five years of progressive 
experience in the specialty and one year experience in the job offered required by the ETA Form 
9089 in addition to the educational requirements during this period. 
The regulation at 8 C.F.R. § 204.5(g)(1) states in pertinent part: 
Page 8 
Evidence relating to qualifying experience or training shall be in the fonn of letter(s) 
from current or fonner employer(s) or trainer(s) and shall include the name, address, and 
title of the writer, and a specific description ofthe duties perfonned by the alien or of the 
training received. If such evidence is unavailable, other documentation relating to the 
alien's experience or training will be considered. 
The record contains five letters from the beneficiary's fonner employers regarding his requisite 
experience submitted as evidence of the beneficiary'S qualifications. 
was However, this letter 
does not confinn the beneficiary's full-time employment and does not include a specific description 
of the duties perfonned by the beneficiary. Without such a specific description, the AAO cannot 
detennine whether the beneficiary's work experience as an associate with _ can be 
considered as experience in the specialty of the beneficiary's bachelor's degree or whether qualifies 
as experience in the job offered, i.e. senior systems ana~uired in Part H, Line 6 of the ETA 
Fonn 9089. Therefore, the August 19,2005 letter from _does not meet the requirements set 
forth at 8 C.F.R. § 204.5(g)(1) and thus cannot be accepted as evidence of the beneficiary'S 
qualification. 
The second letter is dated December 16, 2002 and signed by 
that the beneficiary was employed as a 
Module Leader from January 2, 2002 to December 13, 2002 with a brief description of the duties he 
perfonned. This letter appears to meet the requirements set forth at 8 C.F.R. § 204.5(g)(1), however, 
we cannot credit the entire eleven and a half months to the qualifying experience as experience in the 
specialty or in the job offered because it does not confinn the beneficiary's full-time employment. 
The third letter is a relieving letter dated December 31, 2001, on 
a signature from an alleged authorized signatory on behalf of 
notifying the beneficiary of his resignation from the position of eam on anuary 
However, this letter does not verify any period of the beneficiary'S full-time or part-time employment 
with this company and does not include a specific description of the duties perfonned by the 
beneficiary. The experience indicated in this letter is not supported by the beneficiary's statements 
on the ETA Fonn 9089. The AAO finds that this letter does not meet the requirements set forth at 8 
C.F.R. § 204.5(g)(1), and thus, cannot be accepted it as evidence ofthe beneficiary's qualifications. 
2001 and signed by 
certifying that the beneficiary worked with the company 
as a Software Engineer from October 10, 1999 to June 30, 2001. However, this letter does not 
confinn the beneficiary's full-time employment and does not include a specific description of the 
duties perfonned by the beneficiary. The AAO finds that the fourth letter from Octon does not meet 
Page 9 
the requirements set forth at 8 C.F.R. § 204.5(g)(1), and cannot be accepted as evidence of the 
beneficiary's qualifications. 
The fifth letter is dated December 10, 1999 and signed 
. that the beneficiary was working with the company as a 
June 1999 to October 1999. However, this letter does not confirm the 
beneficiary's full-time employment and does not include a specific description of the duties 
performed by the beneficiary. The experience indicated in this letter is not supported by the 
beneficiary's statements on the ETA Form 9089. The AAO finds that this fifth letter from Lecon 
does not meet the requirements set forth at 8 C.F.R. § 204.5(g)(1), and cannot be accepted as evidence 
of the beneficiary's qualifications. 
Therefore, the petitioner has not established with regulatory-prescribed evidence that the beneficiary 
possessed five years of progressive experience in the specialty and one year of experience in the job 
offered after the beneficiary's bachelor equivalent degree but prior to the priority date as required by the 
regulations and underlying labor certification. 
To qualify for the second preference classification in this case, the beneficiary must establish that he 
possessed a u.s. bachelor's degree or a foreign equivalent degree and at least five years of 
progressive experience in the specialty after his bachelor's degree but prior to the priority date as the 
regulation requires in lieu of the master's degree required on the ETA Form 9089. In addition, the 
underlying labor certification specifically requires one additional year of experience in the job 
offered. As discussed above, the petitioner failed to submit regulatory-prescribed evidence to 
establish that the beneficiary possessed five years of progressive experience in the specialty and one 
additional year of experience in the job offered prior to the priority date. Therefore, the beneficiary 
does not meet the job requirements on the labor certification. For the reason mentioned above, the 
petition may not be approved. 
Beyond the director's decision and counsel's assertions on appeal, the AAO has identified an 
additional ground of ineligibility and will discuss whether or not the petitioner has established that it 
had the continuing ability to pay the proffered wage beginning on the priority date until the 
beneficiary obtains lawful permanent residence. 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), affd. 345 F.3d 683 (9th Cir. 2003); see also 
Dor v. INS, 891 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. § 204.5(g)(2) states: 
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 
Page 10 
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 fmancial 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. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is the date the ETA Form 9089 was accepted for processing by any office within 
the employment system of DOL. See 8 C.F.R. § 204.5(d). Here, the ETA Form 9089 was accepted 
on July 26, 2006. The proffered wage as stated on the ETA Form 9089 is $33.28 per hour 
($69,222.40 per year). 
Where the petitioner has submitted the requisite initial documentation required in the regulation at 8 
C.F.R. § 204.5(g)(2), USCIS 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 submitted the beneficiary's W-2 form for 2006. The W-2 form shows that the 
petitioner paid the beneficiary _in 2006. The petitioner demonstrated that it paid the full 
proffered wage in 2006, the year of the prIority date. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USCIS will next examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. 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), aff'd, 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 USCIS, had properly relied on the petitioner's net income figure, as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 
The court specifically rejected the argument that 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, USCIS will review the petitioner's 
Page 11 
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, USCIS 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 liabilities? A 
corporation's year-end current assets are shown on Schedule L, lines I(d) through 6(d). Its year-end 
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 record contains the petitioner's Form 1 120S, U.S. Income Tax Return for an S~tion for 
2006. The petitioner's 2006 tax return states that the petitioner had net income3 of ..... and net 
current assets of_ 
If the instant petition were the only petition filed by the petitioner, the petitioner would be required 
to produce evidence of its ability to pay the proffered wage to the single beneficiary of the instant 
petition. However, where a petitioner has filed multiple petitions for multiple beneficiaries which 
have been pending or approved simultaneously, the petitioner must produce evidence that it has the 
ability to pay the proffered wages to each of the beneficiaries of its pending petitions or approved 
petitions. Further, the petitioner would be obligated to pay each H-IB petition beneficiary the 
prevailing wage in accordance with DOL regulations, and the labor condition application certified 
with each H-IB petition. See 20 C.F.R. § 655.715. 
2 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist 
of items having (in most cases) a life of one year or less, such as cash, marketable securities, 
inventory and prepaid 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 118. 
3 Where an S corporation's income is exclusively from a trade or business, USCIS considers net 
income to be the figure for ordinary income, shown on line 21 of page one of the petitioner's IRS 
Form 1 120S. However, where an S corporation 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, credits, deductions or other adjustments, net income is found 
on line 18 (2006) of Schedule K. See Instructions for Form 1 120S, 2006, at 
http://www.irs.gov/pub/irs-pdf/i1120s.pdf (accessed on September 10, 2010) (indicating that 
Schedule K is a summary schedule of all shareholder's shares of the corporation's income, 
deductions, credits, etc.). 
Page 12 
In the instant case, the AAO finds that the petitioner filed 527 petitions, including 456 1-129 
petitions, and 71 1-140 petitions. The petitioner filed six 1-140 immigrant petitions in 2006, forty in 
2007, ten in 2008, three in 2009 and three in 2010. The beneficiary's W-2 form for 2006 in the 
record established the petitioner's ability to pay the instant beneficiary the proffered wage that year 
through examination of wages already paid to the beneficiary. However, the record does not contain 
any documentary evidence that the petitioner paid full proffered wages to the instant beneficiary and 
all beneficiaries of pending and/or approved petitions in 2007 and thereafter, nor does the record 
contain any regulatory-prescribed evidence such as annual reports, tax returns or audited financial 
statements for these years to establish the petitioner's ability to pay all proffered wages to whom the 
petitioner was responsible to pay the proffered wages in 2007 through the present. Without the 
documentary evidence for these years, the AAO cannot conclude that the petitioner established its 
continuing ability to pay all proffered wages from the priority date to the present based on its 2006 
financial information. 
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, given the record as a whole, the petitioner's history of filing immigrant and 
nonimmigrant petitions, the AAO must also take into account the petitioner's ability to pay the 
petitioner'S wages in the context of its overall recruitment efforts. The petitioner filed forty 1-140 
immigrant petitions in 2007. Added the petitions filed before but still pending or the beneficiaries 
not adjusted to lawful permanent residence yet in 2007 and petitions filed after but with the priority 
dates in 2007 or before, the petitioner would be responsible to pay many more proffered wages than 
the number of petitions filed in 2007 only. Assuming the proffered wages offered to these 
· . 
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beneficiaries were the same as the one for the instant beneficiary the 
petitioner would need to have at least net income or net current assets of pay the forty 
proffered wages. The petitioner had net income of j (sufficient to pay two proffered wages 
only) and negative net current assets. It is necessarily concluded that it is impossible for the 
petitioner to establish its ability to pay the multiple proffered wages in 2007 and thereafter. 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 wages. 
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. § 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.