dismissed EB-2 Case: Software Development

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUN 2 1 2013 Office: NEBRASKA SERVICE CENTER Filel 
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. § 1153(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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www .uscis.gov 
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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 
director's decision will be withdrawn in part and affirmed in part. The appeal will be dismissed. 
The petitioner is a software development and consulting business. It seeks to employ the 
beneficiary permanently in the United States as a senior software architect. As required by statute, 
the petition is accompanied by an ETA Form 9089, Application for Permanent Employment 
Certification, which has been approved by the United States Department of Labor (DOL). The 
director determined that the petitioner had filed multiple petitions and that it had not established 
that it had the continuing ability to pay the beneficiary and the multiple beneficiaries the 
proffered wage amounts beginning on the priority date of the current visa petition. The director 
also determined that the petitioner had failed to establish that the beneficiary met the minimum 
job experience requirements at the time the ETA Form 9089 was accepted; and therefore, the 
beneficiary could not be found to be qualified for the position. The director denied the petition 
according! y. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error 
in law or fact. The procedural history in this case is documented by the record and incorporated 
into the decision. Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's denial dated January 20, 2012, the first issue in this case is whether 
the petitioner has the ability to pay the proffered wage as of the priority date and continuing until 
the beneficiary obtains lawful permanent residence. 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 
1153(b )(2), provides immigrant classification to members of the professions holding advanced 
degrees or their equivalent and whose services are sought by an employer in the United States. 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.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." !d. 
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural 
or educational interests, or welfare of the United States." The regulation at 8 C.F.R. 
§ 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that 
ordinarily encountered." 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
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accompanied by evidence that the prospective United States employer has the 
ability to pay the proffered wage. The petitioner must demonstrate this ability at 
the time the priority date is established and continuing until the beneficiary 
obtains lawful permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date, which is the date the ETA Form 9089 was accepted for processing by any office 
within the employment system of the DOL. See 8 C.F.R. § 204.5( d). Here, the ETA Form 9089 
was accepted on December 8, 2010. The proffered wage as stated on the ETA Form 9089 is 
$75,000.00 per year. The ETA Form 9089 at part H states that the position requires a master's 
degree in computer science, computer applications or engineering. Alternatively, the employer 
noted that in lieu of a master's degree, it would accept a bachelor's degree in 
"electrical/electronics/mathematics" and five years of work experience.1 The petitioner also 
indicated that a foreign educational equivalent is acceptable. 
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 
(3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted 
upon appeal.Z 
The evidence in the record of proceeding shows that the petitioner is structured as an S 
corporation. On the petition, the petitioner claimed to currently employ 130 workers. According 
to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the 
ETA Form 9089, signed by the beneficiary, the beneficiary claims to have been employed by 
the petitioner since May 23, 2009 as a software architect and developer. 
USCIS records show that the petitioner has filed multiple immigrant visa petitions. As such, the 
petitioner must also establish that it has the ability to pay all of the sponsored beneficiaries from 
their respective priority dates. The AAO sent a request for evidence requesting information 
about the multiple filings. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing 
of an ETA Form 9089 establishes a priority date for any immigrant petition later based on the ETA 
Form 9089, the petitioner must establish that the job offer was realistic as of the priority date and 
that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful 
permanent residence. The petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting 
1 
The petitioner stated in section H.8 of the labor certification that it would not accept experience 
in an alternate occupation. Thus, the beneficiary's experience must be shown to be as a software 
architect. 
2 The submission of additional evidence on appeal is allowed by the instructions to the Form I-
290B, which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(1). 
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Reg. Comm. 1977); see also 8 C.P.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, 
United States Citizenship and Immigration Services (USCIS) requires the petitioner to 
demonstrate fmancial 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. 612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, US CIS 
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. The proffered wage is $75,000.00. The 
record of proceeding contains copies of IRS Form W-2, Wage and Tax Statement, issued by the 
petitioner to the beneficiary as shown in the table below: 
• In 2010, the IRS Form W-2 stated total wages of $55,705.60 (a deficiency of 
$19,294.40). 
• In 2011, the IRS Form W-2 stated total wages of $54,864.41 (a deficiency of 
$20,135.59). 
• In 2012, the IRS Form W-2 stated total wages of $61,755.80 (a deficiency of 
$13,244.20). 
If, as in this case, the petitioner does not establish that it employed and paid the beneficiary an 
amount at least equal to the proffered wage during that period, USCIS will next examine the net 
income figure reflected on the petitioner's federal income tax return, without consideration of 
depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 
2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 
(6th Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for determining 
a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 
1080 (S.D.N.Y. 1985); Ubeda v . Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 
(7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. 
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 USCIS should have considered income before 
expenses were 
paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 
881 (gross profits overstate an employer's ability to pay because it ignores other necessary 
expenses). 
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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 118. "[USCIS] and judicial precedent support the use of tax returns and 
the net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support." Chi­
Feng Chang at 537 (emphasis added). 
The regulation at 8 C.P.R. § 204.5(g)(2) states that the director may request additional evidence 
in appropriate cases. The AAO's Request for Evidence (RFE) dated April 2, 2013 requested that 
the petitioner provide a copy of its Internal Revenue Service (IRS) tax returns complete with 
schedules and attachments for 2011 and 2012. The petitioner was allowed 45 days to respond to 
the RFE. In response to the AAO's RFE, counsel submits a copy of its 2011 income tax return. 
The petitioner did not provide a copy of its 2012 income tax return nor does the record of 
proceeding contain a request for automatic extension for filing its 2012 tax return. It is noted, to 
date, the petitioner has not provided a copy of its income tax return for 2012. 
The petitioner's 1120S3 tax return demonstrates its net income as shown in the table below: 
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 1120S. 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 (2010-2012) of Schedule K. See Instructions for Form 1120S, at 
http://www.irs.gov/pub/irs-pdf/i1120s.pdf (indicating that Schedule K is a summary schedule of 
all shareholders' shares ofthe corporation's income, deductions, credits, etc.). 
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• In 2010, the Form 1120S stated net income of $547,938.00. 
• In 2011, the Form 1120S stated net income of $595,816.00. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS 
may review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities.4 A corporation's yea~-end current assets are 
shown on Schedule L, lines 1 through 6. Its year~end current liabilities are shown on lines 16 
through 18. If the total of a corporation'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. The petitioner's tax return 
demonstrates its net current assets as shown in the table below: 
• In 2010, the Form 1120S stated net current assets of $5,712,870.00. 
• In 2011, the Form 1120S stated net current assets of $6,049,009.00. 
Although the net current asset amounts for 2010 and 2011 exceed the proffered wage amount for 
those years, and demonstrate that the petitioner could more likely than not have paid both the 
beneficiary's wage and all the other proffered wage amounts; without the petitioner's 2012 
income tax returns it cannot be determined whether it has the ability to pay the proffered wage in 
that year. 
The petitioner submitted a list of beneficiaries for whom it filed petitions, indicating that it is 
more likely than not it could pay the proffered wage to these other workers and to the beneficiary 
out of the net current assets indicated on the IRS Form 2011 tax return. 
The petitioner submitted letters from its president and controller who stated that the petitioner 
employs more than 100 workers and had gross annual revenues of $21 million during its most 
recent fiscal year. It is noted that, the regulation at 8 C.P.R. § 204.5(g)(2) permits USCIS to 
accept a letter from a financial officer as evidence of the petitioner's ability to pay the proffered 
wage in a case where the petitioner employs 100 or more workers. There is sufficient 
corroborating financial documentation in the 
record of the petitioner's financial strength. The 
AAO accepts the letter from the controller in these circumstances to establish the petitioner's 
ability to pay the proffered wage to the beneficiary and the other sponsored workers. The AAO 
withdraws that part of the director's decision finding that the petitioner does not have the ability 
to pay the proffered wage. 
4According 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 accounts payable, short-term notes payable, and accrued expenses 
(such as taxes and salaries). Id. at 118. 
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Therefore, from the date the ETA Form 9089 was accepted for processing by the DOL, the 
petitioner established that it had the continuing ability to pay the beneficiary the proffered wage 
as of the priority date. 
A second issue in this case is whether the petitioner has established that the beneficiary is 
qualified for the offered position. The petitioner must establish that the beneficiary possessed all 
the education, training, and experience specified on the labor certification as of the priority date. 
8 C.F.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). In 
evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor 
certification to determine the required qualifications for the position. USCIS may not ignore a 
term of the labor certification, nor may it impose additional requirements. See Matter of Silver 
Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Madany v. Smith, 
696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); 
Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (ls
1 
Cir. 1981). 
In the instant case, the labor certification states that the offered position requires a master's 
degree in computer science, computer applications/engineering. Alternatively, the employer 
noted that in lieu of a master's degree, it would accept a bachelor's degree ·in 
"electrical/electronics/mathematics" and five years of work experience. 
On the labor certification, the beneficiary claims to qualify for the offered position based on a 
bachelor's degree in electrical engineering from · ·· · ·- - · · 
~ ~ received in 1998 and five years of work experience. The record contains a 
copy of the beneficiary's Bachelor of Engineering degree from issued 
to him on March 22, 1998. The record also contains transcripts from 
confirming the award of a bachelor's degree to the beneficiary. This evidence is sufficient to 
establish that the beneficiary possessed the education required on the labor certification as of the 
priority date. 
The petitioner must also establish that the beneficiary possessed the specified five years of 
progressive work experience as stated on the labor certification. The beneficiary's claimed 
qualifying experience must be supported by letters from employers giving the name, address, and 
title of the employer, and a description of the beneficiary's experience. See 8 C.F.R. § 
204.5(1)(3)(ii)(A). The regulation states in part: 
. . . Evidence relating to qualifying experience or training shall be in the form of 
letter(s) from current and former employer(s) or trainer(s) and shall include the 
name, address and title of the writer, and a specific description of the duties 
performed 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 .... 
8 C.F.R. § 204.5(g)(l). 
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The beneficiary set forth his credentials on the labor certification, and signed his name under a 
declaration that the contents of the form are true and correct under the penalty of perjury. On the 
section of the labor certification eliciting information of the beneficiary's work experience in the 
job offered, in addition to his experience with the petitioner, 5 he represented the following: 
• That he was employed by ~ _ . as a customer 
support/service person from January 1, 1998 to September 23, 1998. 
• That he was employed by the _ as a lecturer-
Electrical Engineer from November 25, 1998 to December 4, 1999. 
• That he was employed by 
February 13, 2001 to September 4, 2004. 
• That he was employed by 
September 8, 2004 to May 22,2009. 
as a senior software engineer from 
as project manager from 
As evidence of the beneficiary's work experience, the petitioner submitted the following 
statements: 
• A letter from a partner at who 
stated that the 
company employed the beneficiary as a customer support and service engineer 
from January 1, 1998 to September 23, 1998. The work period from January 1, 
1998 to March 23, 1998, the date the beneficiary received his bachelor's degree, 
cannot be considered work experience because it was prior to the beneficiary 
receiving his bachelor's degree, and all experience gained by the beneficiary must 
be progressively responsible post-bachelor experience. Thus, this experience may 
not be considered. 
• A letter from the principal of ~ ~ _ _ 
who sfated that the beneficiary was employed as a full-time lecturer in electrical 
engineering from November 25, 1998 to December 4, 1999. The declarant fails to 
describe the beneficiary's job duties. Thus, this experience may not be 
considered. 
• Affidavits from assistant professors at 
who stated that the beneficiary worked with them in the electrical 
engineering department from November 25, 1998 to December 4, 1999, and that 
the beneficiary was responsible for giving lectures and assisting students during 
5 As the petitioner noted in response to question J .21 of the ETA Form 9089 that the beneficiary 
did not gain any of his qualifying experience with the petitioner in a substantially comparable 
position, and because the ETA Form 9089 requires work experience orily in the job offered, his 
experience with the petitioner will not be considered. 
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laboratory sessions. The affidavits submitted by the beneficiary's co-workers 
were not written by the beneficiary 's supervisors, superiors or human resources 
representatives; and therefore, cannot be used as evidence of the beneficiary's 
past employment. Regardless, even if the AAO were to consider the information 
contained in the affidavits, the declarants fail to specify the number of hours the 
beneficiary worked on each project and the specific skills used to complete his 
assignments. See 8 C.P.R. § 204.5(g)(1). Further, their descriptions of the 
beneficiary's duties do not indicate that this experience was gained as a software 
architect. Thus, this experience will not be considered. 
• A letter from the vice president of who stated that the 
company employed the beneficiary from February 13, 2001 to September 4, 2004, 
and at the time of his resignation, the beneficiary was working as a senior 
software engineer. Here, the declarant fails to specify the beneficiary's job title 
and duties prior to the time he began as a senior software engineer. In addition, 
he fails to specify what the beneficiary's job duties were as a senior software 
engineer and how long he maintained that title. As such, the AAO cannot 
determine how long the beneficiary worked as a senior software engineer. 
• The petitioner submitted a letter from which indicated 
that the beneficiary was employed by the company as a software architect and 
technical leader from September 8, 2004 to May 22, 2009, and that he was 
promoted to the position of project manager. The declarant indicated that he was 
the head of operations and had personal knowledge of the beneficiary's work 
product during his employment with the company. The declarant described the 
beneficiary's job duties. This letter does not contain the name or signature of the 
writer as required by the regulations. Further, the record does not sufficiently 
indicate the separate nature of this corporation from that of the petitioner. 
Therefore, it cannot be used to establish the beneficiary's job experience. 
As noted above, the evidence from may not be considered, as 
this evidence was obtained prior to the beneficiary's graduation; the representative from 
ails to specify what the beneficiary's job duties were as a senior software engineer 
and how long he maintained that title. 
On appeal, counsel asserts that the documentation submitted by the petitioner is sufficient to 
establish that the beneficiary had gained the required five years of professional experience prior 
to the priority date of December 8, 2010. Counsel further asserts that the petitioner submitted 
detailed affidavits from co-workers of the beneficiary who specified his experience and 
identified the technologies he used at the engineering college. Counsel asserts that regulations 
permit, in the absence of detailed experience letters, secondary documentation that would 
establish that the beneficiary has the requisite experience, and infers that the affidavits should be 
considered as such. However, counsel did not indicate why primary evidence was unavailable 
from the university, as required by the regulation at 8 C.F.R § 103.2 (b)(2)(i) and (ii). Counsel 
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also asserts that the employment letter written by should be considered separate 
from the beneficiary's employment with the petitioner. Contrary to counsel's claim, there is 
insufficient evidence in the record to demonstrate that the Indian company is not the same 
employer as the petitioner. The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Furthermore, while the employment letter from Real Soft (India) specifies the 
beneficiary's dates of employment and his job duties, it does not comply with 8 C.P.R. § 
204.5(1)(3)(ii)(A), in that it does not contain the declarant's name or signature. Therefore, this 
letter is insufficient to establish the beneficiary's qualifications or work experience. 
Accordingly, the petitioner has not been established that the beneficiary has the requisite five 
years of progressive post-baccalaureate experience in the job offered or that he is qualified to 
perform the duties of the proffered position. 8 C.F.R § 204.5(g)(1). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.