dismissed EB-2 Case: Software Development

identifYing data deleted to 
prevent clearly unwarranted 
invasion of per~onal pnvacy 
Date: JAN 0 3 2012 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and 
Nationality Act, 8 U.S.c. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office 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 he 
suhmitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fcc of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must he filed 
within 3D days of the decision that the motion seeks to reconsider or reopen. 
c~r 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, 
and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a software development and technology company. It seeks to employ the 
beneficiary permanently in the United States as a database developer/administrator. As required by 
statute, the petition is accompanied by a Form ETA 750, Application for Alien Employment 
Certification, approved by the United States Department of Labor (DOL). The director determined 
that the petitioner had not established that the beneficiary satisfied the minimum level of education 
and experience stated on the Form ETA 750 and that it had the continuing ability to pay the 
beneficiary the proffered wage beginning on the priority date of the visa petition. The director 
denied the petition accordingly. 
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 September 24, 2008 denial, the issues in this case are whether the 
beneficiary satisfied the minimum level of education and experience stated on the Form ETA 750 
and 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. 
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.! 
Section 203(b) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b), states in pertinent 
part that: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. --
(A) In General. -- Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 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, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
I The submission of additional evidence on appeal is allowed by the instructions to the Form 1-
290B, which are incorporated into the regulations 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 o/Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 3 
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. 
A beneficiary must have all the education, training, and experience specified on the labor certification 
as of the petition's priority date. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Comm.1977). 
The required education, training, experience and special requirements for the offered position are set 
forth at Part A, Items 14 and 15, of Form ETA 750. In the instant case, the labor certification states 
that the position has the following minimum requirements: 
Block 14: 
Education: Six-years of college and a master's degree in Computer Science. 
Experience: 10 years in the job offered. 
Block 15: None. 
On the Form ETA 750B, signed by the beneficiary, the beneficiary represents that he has the following 
education from India. 
Name of School Field of Study 
Nagarjuna University Computer Science 
Andhra University Computer Science 
09/1990 03/1993 
05/1987 06/1990 
Degree 
Master of Science 
Bachelor of 
Science 
Additionall y, the beneficiary states that he has over ten years of employment experience in the 
profession obtained before the priority date of March 8, 2004, the date in which the petitioner filed 
the alien employment certification with the DOL. 8 C.F.R. § 204.5(d). 
The record contains the following educational evaluations: 
• An evaluation from Baruch College. The evaluation is dated September 30, 2011. The 
evaluation is signed by The evaluation describes the beneticiary's 
education as being the equivalent of a master's degree in computer science. 
Page 4 
• An evaluation from The Trustfo~ evaluation is dated July 28, 
2008. The evaluation is signed by __ The evaluation describes the 
beneficiary's education as being the equivalent of a master's degree in computer 
science. 
• An evaluation from Seattle Pacific 
The evaluation is signed by 
beneficiary's education as being the 
computer science. 
;"",0;1,, The evaluation is dated July 23, 2008. 
The evaluation describes the 
a bachelor's and master's degree in 
• An evaluation from Foundation for International Services, Inc. The evaluation is 
dated July 24, 2008. The evaluation is signed by The evaluation 
describes the beneficiary's education as being the equivalent of an integrated 
bachelor's and master's degree in computer science. 
• An evaluation from Cultural Inc. The evaluation is dated October 3, 1998. 
The evaluation is signed by The evaluation describes the 
beneficiary'S education as being the equivalent of a master's degree in computer 
science. 
US CIS 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, the 
Service is not required to accept or may give less weight to that evidence. Matter of Caron 
International, 19 I&N Dec. 791 (Comm. 1988). 
A, noted above, the DOL certified the Form ETA 750 in this matter. The 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. § 656.1(a). 
It is significant that none of the above inquiries assigned to the 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 Tongataplt 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 N.L.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), ajJ'd, 273 F.3d 874 (9
th 
Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding nnder the APA, even 
when they are published in private publications or widely circulated). 
Page 5 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 1977). This decision involved a petition filed under 
8 U.S.c. §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 of Shah, 17 I&N Dec. at 244, is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in 1 considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955,101" Cong., 2
nd 
Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at *6786 (Oct. 26, 1990). 
At the time of enactment of section 203(b )(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. The AAO 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). In fact, the Senate Conference 
Report for the Act presumes that a baccalaureate is a "4-year course of undergraduate study." 
S. Rep. No. 101-55 at 20 (1989). 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 
Page 6 
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 (plus the requisite five years of progressive post 
baccalaureate experience in the specialty). More specifically, a three-year bachelor's degree will not 
be considered to be the "foreign equivalent degree" to a United States baccalaureate degree. Matter 
of Shah, 17 I&N Dec. at 245. Where the analysis of the beneficiary's credentials relies on work 
experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a 
bachelor's degree rather than a "foreign equivalent degree.,,2 In order to have experience and 
education equating to an advanced degree under section 203(b )(2) of the Act, the beneficiary must 
have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree 
(plus the requisite five years of progressive experience in the specialty). 8 C.F.R. § 204.5(k)(2). 
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" (plus evidence of five years of progressive 
experience in the specialty). 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 congressionall y mandated classification scheme by allowing a lesser 
evidentiary standard for the more restrictive visa classification. Moreover, the commentary 
accompanying the proposed advanced degree professional regulation specifically states that a 
"baccalaureate means a bachelor's degree received from a college or university, or an equivalent 
degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). Compare 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"). 
2 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of a nonimmigrant visa 
classification, the "equivalence to completion of a college degree" as including, in certain cases, a 
specific combination of education and experience). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. 
Page 7 
As noted in a request for evidence and notice of derogatory evidence (RFE/NDI) dated August 21, 
2011, we have reviewed the Electronic Database for Global Education (EDGE) created by the 
American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to 
its website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, professional association of more 
than 11,000 higher education admissions and registration professionals who represent more than 
2,600 institutions and agencies in the United States and in over 40 countries around the world." 
http://www.aacrao.orgiAbout-AACRAO.aspx (accessed August 9, 2011). Its mission "is to serve 
and advance higher education by providing leadership in academic and enrollment services." Id. 
According to the registration page for EDGE, EDGE is "a web-based resource for the evaluation of 
foreign educational credentials." http://aacraoedge.aacrao.org/register/ (accessed August 9, 2011). 
Authors for EDGE are not merely expressing their personal opinions. Rather, they must work with a 
publication consultant and a Council Liaison with AACRAO's National Council on the Evaluation of 
Foreign Educational Credentials.' If placement recommendations are included, the Council Liaison 
works with the author to give feedback and the publication is subject to final review by the entire 
Council. Id. 4 
In the section related to the Indian educational system, EDGE provides that: 
• A three-year Bachelor of Science degree: "The Bachelor of Arts/Bachelor of 
CommercelBachelor of Science represents attainment of a level of education comparable 
to two to three years of university study in the United States. Credit may be awarded on a 
course-by-course basis." 
• The Master of Arts/Commerce/Science represents attainment of a level of education 
comparable to a bachelor's degree in the United States. 
3 See An AuthOr's Guide to Creating MCRAO International Publications available at 
http://www . aacrao .orglpublica tions/ guide_to _ creating_ intern a tiona! yub lications. pdf. 
4 In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court 
determined that the AAO provided a rational explanation for its reliance on information provided by 
AACRAO to support its decision. In Tisco Group, Inc. v. Napolitano, 2010 WL 3464314 
(E.D.Mich. August 30, 2010), the court found that USCIS had properly weighed the evaluations 
submitted and the information obtained from EDGE to conclude that the alien's three-year foreign 
"baccalaureate" and foreign "Master's" degree were only comparable to a U.S. bachelor's degree. 
In Sunshine Rehab Services, Inc. 2010 WL 3325442 (E.D.Mich. August 20, 2010), the court upheld 
a USCIS determination that the alien's three-year bachelor's degree was not a foreign equivalent 
degree to a U.S. bachelor's degree. Specifically, the court concluded that US CIS was entitled to 
prefer the information in EDGE and did not abuse its discretion in reaching its conclusion. The 
court also noted that the labor certification itself required a degree and did not allow for the 
combination of education and experience. 
Page 8 
The petitioner has not established that the beneficiary possesses a foreign degree that is equivalent to 
a U.S. master's degree. The peer-reviewed report by EDGE indicates that the beneficiary's degree is 
comparable to a U.S. bachelor's degree, not to a U.S. master's degree. Although the evaluation 
reports explain in detail the content of the beneficiary's two-year master's degree program, these 
reports fail to establish that the beneficiary's master's program following a three-year bachelor's 
degree program truly equals the depth of a U.S. master's program in computer science following a 
four-year U.S. bachelor's degree. Although the petitioner argues that some U.S. master's degree 
programs admit students after completing three-year bachelor's programs, the petitioner ignores the 
fact that these programs might require the graduate student to earn additional credits omitted during 
the undergraduate phase of his or her education. Regardless, this argument does not establish that the 
beneficiary's Indian master's degree following a three-year bachelor's degree should be considered 
comparable to a U.S. master's degree in computer science. USCIS uses an evaluation by a 
credentials evaluation organization of a person's foreign education as an advisory opinion only. 
Where an evaluation is not in accord with previous equivalencies or is in any way questionable, it 
may be discounted or given less weight. Matter of Sea, Inc., 19 I&N Dec. 817 (Comm'r 1988). 
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). 
Furthermore, the beneficiary does not meet the education terms of the Form ETA 750 for a second 
reason. The Form ETA 750 unambiguously requires six years of college. However, as clearly 
explained in the September 30, 2011 evaluation submitted in response to the AAO's RFEfNDI, the 
beneficiary attended undergraduate classes for three-years and graduate classes for two years. 
Therefore the beneficiary only attended "college" for five years. To determine whether a beneficiary 
is eligible for an employment based immigrant visa, United States Citizenship and Immigration 
Services (USCIS) must examine whether the alien's credentials meet the requirements set forth in the 
labor certification. 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'r 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 (1st Cir. 
1981). 
Finally, the beneficiary does not have 10 years of qualifying experience. 
The regulation at 8 C.F.R. § 204.5(g)(1) provides: 
In general, ordinary legible photocopies of such documents (except for labor 
certifications from the Department of Labor) will be acceptable for initial filing and 
approval. However, at the discretion of the director, original documents may be required 
in individual cases. Evidence relating to qualifying experience or training shall be in the 
form of letter(s) from current or 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 
Page 9 
by the alien or of the trammg received. If such evidence is unavailable, other 
documentation relating to the alien's experience or training will be considered. 
The record contains a number of work experience letters. However, these letters only verify nine 
years, seven months, and two days of employment which does not meet the requirement of 10 years 
in the job offered. Therefore, the petitioner has not established that the beneficiary had the required 
ten years of prior experience in the job offered by the priority date. 
Accordingly, the petitioner has failed to establish that the beneficiary is qualified for the job offered. 
He does not have six-years of college, a U.S. master's degree or foreign equivalent degree, or 10 
years of experience. 
A second issue is whether the petitioner has established that it has the continuing ability to pay the 
proffered wage to the beneficiary. 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 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is the date the Form ETA 750 was accepted for processing by any office within 
the employment system of the DOL. See 8 C.F.R. § 204.5( d). 
Here, the Form ETA 750 was accepted on March 8, 2004. The proffered wage as stated on the Form 
ETA 750 is $1,465.20 per week ($76,190.40 per year). 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. 
On the petition, the petitioner claimed to have been established in 1933, to have a gross annual 
income of $10,703,554, and to currently employ 86 workers. On the Form ETA 750, signed by the 
beneficiary on March 5, 2004, the beneficiary claimed to have worked for the petitioner from 
January 2004 through the date that the Form ETA 750 was signed. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
a Form ETA 750 establishes a priority date for any immigrant petition later based on the Form ETA 
750, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains 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 Reg. Comm. 1977); see also 8 
c.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and 
Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to 
Page 10 
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. Cornrn. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If the 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. 
The beneficiary's Forms W-2 for 2004 through 2010 shows compensation received from the 
petitioner as detailed in the table below. 
Beneficiary's actual Wage increase needed to 
Year Compensation Proffered wage pay the proffered wage 
2010 $66,451.84 $76,190.40 $9,738.56 
2009 $66,696 $76,190.40 $9,494.40 
2008 $67,472 $76,190.40 $8,718.40 
2007 $67,052 $76,190.40 $9,138.40 
2006 $63,331 $76,190.40 $12,859.40 
2005 $60,243.72 $76,190.40 $15,946.68 
2004 $57,786 $76,190.40 $18,404.40 
Here, the petitioner has established that it paid the beneficiary less than the full proffered wage from 
2004 through 201 O. Therefore, the petitioner must establish that it can pay the difference between 
the wages actually paid to the beneficiary and the proffered wage from 2004 through 2010. 
If, as in this case, the petitioner has not established that it paid the beneficiary an amount at least 
equal to the proffered wage during the required 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 (1
st 
Cir. 2(09); Taco 
Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010). 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), a/f'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 USeIS, had properly relied on the petitioner's net income figure, as 
Page 11 
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). 
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). 
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 liabilities5 A corporation's year-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 returns show its net income as detailed in the table below. 
5According 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. 
Page 12 
Year Net Income' 
2010 Not submitted
7 
2009 Not submitted 
2008 Not submitted 
2007 $894,360 
2006 -$1,082,388 
2005 -$772,778 
2004 $1,480,867 
The petitioner has established that it had sufficient net income to pay the proffered wage for 2004 
and 2007. The petitioner has not established that it had sufficient net income to pay the difference 
between the wages actually paid to the beneficiary and the proffered wage for 2005, 2006 and 2008 
through 2010. Therefore, USCIS will review the petitioner's net current assets for 2005, 2006 and 
2008 through 2010. 
6 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 23 (2001-
2(03), line 17e (2004-2005), or line 18 (2006-2010) of Schedule K. See Instructions for Form 1120S, 
at http://www.irs.gov/pub/irs-pdf/il120s.pdf (accessed August 9, 2011) (indicating that Schedule K 
is a summary schedule of all shareholders' shares of the corporation's income, deductions, credits, 
etc.). 
7 In response to the AAO's RFE/NDI that the petitioner submit its federal tax returns or audited 
financial statements for 2008,2009, and 2010, counsel submitted the petitioner's reviewed iinancial 
statements for 2008 through 2010. Although counsel describes these as audited statements, the 
accountant's report clearly indicates that the statements were review and not audited. The regulation 
at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to 
demonstrate its ability to pay the proffered wage, those financial statements must be audited. An 
audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable 
assurance that the financial statements of the business are free of material misstatements. The 
unaudited financial statements that counsel submitted with the petition are not persuasive evidence. 
Reviews are governed by the American Institute of Certiiied Public Accountants' Statement on 
Standards for Accounting and Review Services (SSARS) No.1., and accountants only express 
limited assurances in reviews. As the account's report makes clear, the financial statements are the 
representations of management and the accountant expresses no opinion pertinent to their accuracy. 
The unsupported representations of management are not reliable evidence and are insufficient to 
demonstrate the ability to pay the proffered wage. 
Page 13 
The petitioner's tax returns demonstrate its end-of-year net current assets as shown in the following 
table. 
Year Net Current A~sets 
2010 Not submitted 
2009 Not submitted 
2008 Not submitted 
2006 $1,660,851 
2005 $1,365,483 
The petitioner had sufficient net current assets to pay the proffered wage in 2005 and 2006. 
However, it has not been established that the petitioner's net current assets were sufficient to pay the 
wages actually paid to the beneficiary and the proffered wage from 2008 through 2010. 
Since the petitioner has not established that it had the continuing ability to pay the beneficiary the 
proffered wage as of the priority date through an examination of wages paid to the beneficiary, or its 
net income or net current assets, uscrs 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 ofSonegawa, 12 I&N Dec. 612. 
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, US CIS 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. 
The AAO recognizes that the petitioner has been in business since 1933. However, given the gap in 
required evidence, it cannot be established that the petitioner had sufficient financial strength to pay 
Page 14 
the proffered wage in 2008, 2009, and 2010, The unaudited statements are not persuasive evidence, 
and there has been no explanation for why required evidence cannot be submitted. 8 C.F.R. § 
204.5(g)(2). Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972». 
Thus, assessing the totality of the circumstances in this individual case, it is concluded that the 
petitioner has not established that it had the continuing ability to pay the proffered wage. 
The record does not establish that the beneficiary meets the minimum requirements of the offered 
position as set forth in the labor certification. Additionally, the evidence submitted does not 
establish that the petitioner had the continuing ability to pay the proffered wage beginning on the 
priority date. 
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. The petitioner has not met this burden. 
ORDER: The appeal will be dismissed.