dismissed EB-2 Case: Software Engineering

, U.S. De~artment of Homeland Security 
data deleted to 
plrrmc chly unwmted 
of personal privacy 
PUBLIC copy 
U.S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 - 
U.S. Citizenship 
and Immigration 
Services 
FILE: - Office: TEXAS SERVICE CENTER Date: AU 0 2 2010 
SRC-07-800- 19488 
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. $ 1 153(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. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a.Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. $ 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is . It seeks to employ the beneficiary 
permanently in the United States as a software engineer pursuant to section 203@)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153@)(2). As required by statute, a Form 
ETA 750 Application for Alien Employment Certification (Form ETA 750) approved by the 
Department of Labor (DOL), accompanied the petition. The Form ETA 750 was accepted on July 
13, 2004 and certified on December 2 1, 2006 initially on behalf of the ori inal beneficiary.' The K instant petition was filed on July 10, 2007 for a substituted beneficiary. 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. bachelor's degree or foreign equivalent degree. 
1 The original copy of the labor certification filed and certified on behalf of the original beneficiary 
is in the record. U.S. Citizenship and Immigration Services (USCIS) records do not contain any I- 
140 immigrant petition filed and approved on behalf of the original beneficiary based on the instant 
labor certification. 
2 We note that the case involves the substitution of a beneficiary on the labor certification. 
Substitution of beneficiaries was permitted by the Department of Labor (DOL) at the time of filing 
this petition. DOL had published an interim final rule, which limited the validity of an approved 
labor certification to the specific alien named on the labor certification application. See 56 Fed. Reg. 
54925, 54930 (October 23, 1991). The interim final rule eliminated the practice of substitution. On 
December 1, 1994, the U.S. District Court for the District of Columbia, acting under the mandate of 
the U.S. Court of Appeals for the District of Columbia in Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 
1994), issued an order invalidating the portion of the interim final rule, which eliminated substitution 
of labor certification beneficiaries. The Kooritzky decision effectively led 20 C.F.R. $5 656.30(~)(1) 
and (2) to read the same as the regulations had read before November 22, 1991, and allow the 
substitution of a beneficiary. Following the Kooritzky decision, DOL processed substitution requests 
pursuant to a May 4, 1995 DOL Field Memorandum, which reinstated procedures in existence prior 
to the implementation of the Immigration Act of 1990 (IMMACT 90). DOL delegated responsibility 
for substituting labor certification beneficiaries to USCIS based on a Memorandum of 
Understanding, which was recently rescinded. See 72 Fed. Reg. 27904 (May 17, 2007) (codified at 
20 C.F.R. 9 656). DOL's final rule became effective July 16, 2007 and prohibits the substitution of 
alien beneficiaries on permanent labor certification applications and resulting certifications. As the 
filing of the instant case predates the rule, substitution will be allowed for the present petition. An I- 
140 petition for a substituted beneficiary retains the same priority date as the original ETA 750. 
Memo. from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization Service, to 
Regional Directors, et al., Immigration and Naturalization Service, Substitution of Labor 
CertiJication Beneficiaries, at 3, httQ:llows.doleta.gov/dmstreelfmlfm96/fm 28 -96a.pdf (March 7, 
1996). 
Page 3 
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. Bachelor of Science 
degree based the beneficiary's three year bachelor's degree and one year master of science degree 
both fiom the University of Rajshahi in Bangladesh. 
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 Soltane 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.3 
The record contains the beneficiary's bachelor of science degree and transcripts for the three years of 
study, and master of science degree and transcripts for one year of study fiom the - 
. Thus, the issues are whether each degree is, on its own, a single source 
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) of the Act; 20 C.F.R. §656.1(a). 
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, 
which are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in 
the instant case provides no reason to preclude consideration of any of the documents newly 
submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 4 
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 N. L.R. B. 
v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9' Cir. 1987) (administrative agencies 
are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd 
Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), afd 273 F.3d 874 (9m Cir. 2001) 
(unpublished agency decisions and agency legal memoranda are not binding under the APA, even 
when they are published in private publications or widely circulated). 
A United States baccalaureate degree is generally found to require four years of education. Matter 
of Shah, 17 I&N Dec. 244 (Reg'l. Comm'r. 1977). This decision involved a petition filed under 
8 U.S.C. $1 153(a)(3) as amended in 1976. At that time, this section provided: 
Visas shall next be made available . . . to qualified immigrants who are members of 
the professions . . . . 
The Act added section 203(b)(2)(A) of the Act, 8 U.S.C. $1 153(b)(2)(A), which provides: 
Visas shall be made available . . . to qualified immigrants who are members of the 
professions holding advanced degrees or their equivalent . . . . 
Significantly, the statutory language used prior to Matter of Shah, 17 I&N Dec. at 244 is identical to 
the statutory language used subsequent to that decision but for the requirement that the immigrant 
hold an advanced degree or its equivalent. The Joint Explanatory Statement of the Committee of 
Conference, published as part of the House of Representatives Conference Report on the Act, 
provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the 
alien must have a bachelor's degree with at least five years progressive experience in the 
professions." H.R. Conf. Rep. No. 955, 101'' Cong., 2"d Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 
WL 201613 at 6786 (Oct. 26,1990). 
At the time of enactment of section 203(b)(2) of the Act in 1990, it had been almost thirteen years 
since Matter of Shah was issued. Congress is presumed to have intended a four-year degree when it 
stated that an alien "must have a bachelor's degree" when considering equivalency for second 
preference immigrant visas. We must assume that Congress was aware of the agency's previous 
treatment of a "bachelor's degree" under the Act when the new classification was enacted and did 
not intend to alter the agency's interpretation of that term. See Lorillard v. Pons, 434 U.S. 575, 580- 
81 (1978) (Congress is presumed to be aware of administrative and judicial interpretations where it 
adopts a new law incorporating sections of a prior law). See also 56 Fed. Reg. 60897, 60900 (Nov. 
29, 1991) (an alien must have at least a bachelor's degree). 
Page 5 
In 1991, when the final rule for 8 C.F.R. 5 204.5 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 12 1 of the Immigration Act of 
1990, Pub. L. 101 -649 (1 990), and the Joint Explanatory Statement of the Committee of Conference, 
the Service specifically noted that both the Act and the legislative history indicate that an alien must 
have at least a bachelor's degree: 
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. 
Matter of Shah, 17 I&N Dec. at 245. In the instant case, the three-year bachelor of science degree 
from the University of Rajshahi in Bangladesh is not the foreign equivalent degree to a U.S. 
baccalaureate degree. 
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.orn/register/index/php, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." 
While EDGE confirms that a three-year bachelor of science degree (Honors) from is 
awarded upon completion of three years of university or college programs following higher --- 
secondary education-and represents attainment of a level-of education comparable to three years of 
university study in the United States, it does not suggest that a three-year degree from- 
Page 6 
may be deemed a foreign equivalent degree to a U.S. baccalaureate. In order to have experience and 
education equating to an advanced degree under section 203(b)(2) of the Act, the beneficiary must 
have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree. 
8 C.F.R. $204.5(k)(2). Here the beneficiary's three-year bachelor of science degree from the 
University of Rajshahi does not represent attainment of a level of education comparable to a 
bachelor's degree in the United States. 
EDGE also confirms that a master of science awarded upon completion of one year of tertiary 
education following the three-year bachelor of science degree in Bangladesh is not the foreign 
equivalent degree to a U.S. master's degree, it, however, represents attainment of a level of 
education comparable to a bachelor's degree in the United States. Here the beneficiary's master of - 
science degree is a single source foreign degree equivalent to a U.S. 
bachelor of science degree. 
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 she 
possessed at least five years of progressive experience in the specialty after her bachelor's equivalent 
degree but prior to the priority date and also meets all requirements set forth on the certified labor 
certification. 
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. 
K R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9' Cir. 1983). The court relied on an amicus brief 
from DOL that stated the following: 
The labor certification made by the Secretary of Labor ... pursuant to section 
2 12(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certiJication in no way indicates that the alien offered the 
Page 7 
certified job opportunity is qualified (or not qualified) to perform the duties of that 
job. 
(Emphasis added.) Id. at 1009. The Ninth Circuit, citing K R.K. Iwine, 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 are found on Form ETA 750A, Item 14 which requires 
a bachelor's degree in engineering, computer science, mathematics or management of information 
systems. Item 14 also requires five years of experience in the job offered or in the related 
occupation of programmer analyst, senior engineer or systems analyst in addition to the degree. 
Further, the petitioner indicates that it will accept a master degree plus two years of experience in the 
job offered or as a programmer analyst, senior engineer or systems analyst in lieu of a bachelor's 
degree plus five years of experience. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, U.S. 
Citizenship and Immigration Services (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. 
The beneficiary's transcript for her one year master's degree program at the University of Rajshahi 
shows that the beneficiary in the Faculty of Life and Earth Science at that 
university. Accordingly, possess a U.S. bachelor's degree or a foreign 
equivalent degree in the field required by the labor certification and does not meet the requirements 
of the labor certification, ad thus, does not qualify for preference visa classification under section 
203(b)(2) of the Act. For these reasons, considered both in sum and as separate grounds for denial, 
the petition may not be approved. 
Beyond the director's decision and counsel's assertions on appeal, the AAO has identified additional 
grounds of ineligibility. An application or petition that fails to comply with the technical 
requirements of the law may be denied by the AAO even if the Service Center does not identify all 
of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 299 
F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 
891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
Page 8 
The labor certification is evidence of an individual alien's admissibility under section 
2 12(a)(5)(A)(i) of the Act, which provides: 
In general.-Any alien who seeks to enter the United States for the purpose of performing 
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined 
and certified to the Secretary of State and the Attorney General that- 
(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time 
of application for a visa and admission to the United States and at the place where 
the alien is to perform such skilled or unskilled labor, and 
(11) the employment of such alien will not adversely affect the wages and working 
conditions of workers in the United States similarly employed. 
A labor certification for a specific job offer is valid only for the particular job opportunity, the alien 
for whom the certification was granted, and for the area of intended employment stated on the Form 
ETA 750. 20 C.F.R. 4 656.30(C)(2). In the instant case, the petition filed the Form ETA 750 on July . .. . 
13, 2004 with DOL seeking to employ the beneficiary permanently as a software engineer at - I However, on July 10, 2007, the petitioner filed the instant 
petition intending to employ the substituted beneficiary in the same proffered position at a different - - - 
location, that is &Therefore,-the intends to employ 
the beneficiary as a some engineer at a location outside e terms of the Form ETA 750. See Sunoco 
Energy Development Company, 17 I&N Dec. 283 (change of area of intended employment). The 
petitioner is not in compliance with the terms of the labor certification and has not established that the 
proposed employment will be in accordance with its terms. Matter of Izdebska, 12 I&N Dec. 54 (Reg. 
Cornrn. 1966). 
In addition, the petitioner must demonstrate the continuing ability to pay the proffered wage 
beginning on the priority date. Here, the Form ETA 750 was accepted on July 13, 2004. The 
proffered wage as stated on the Form ETA 750 is $80,330 per year. The regulation at 8 C.F.R. 5 
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 
pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains la* permanent 
residence. Evidence of this ability shall be either in the form of copies of annual reports, 
federal tax returns, or audited financial 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. 
Page 9 
Where the petitioner has submitted the requisite initial documentation required in the regulation at 8 
C.F.R. 8 204.5(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 
consideredprima facie proof of the petitioner's ability to pay the proffered wage. In the instant case, 
the beneficiary claimed to have worked for the petitioner since December 2004 and the petitioner 
submitted the beneficiary's W-2 forms for 2005 through 2007 and paystub for January 2008. The 
W-2 forms show that the petitioner paid the beneficiary $25,000.02 in 2005, $37,500.03 in 2006 and 
$37,500.03 in 2007. The paystub for January 2008 shows that the petitioner paid the beneficiary 
salary of $4,166.67 per month. If the petitioner had continued to pay the beneficiary at the same rate 
to the end of the year, the petitioner would have paid the beneficiary $50,000.04 in 2008. The 
petitioner failed to demonstrate that it paid a hll proffered wage to the beneficiary in 2004 through 
2008. The petitioner must demonstrate that it had sufficient net income or net current assets to pay 
the hll proffered wage of $80,330 in 2004, and the difference of $55,329.98 in 2005, $42,829.97 in 
2006, $42,829.97 in 2007 and $30,329.97 in 2008 between wages actually paid to the beneficiary 
and the proffered wage respectively. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USCIS will next examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d I I I (lSt Cir. 2009). Reliance on federal 
income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 
(S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984)); see also Chi-Feng Chang v. Thornburgh, 7 19 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), afd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross sales and profits and 
wage expense is misplaced. Showing that the petitioner's gross sales and profits 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. 
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 
Page 10 
years or concentrated into a few depending on the petitioner's choice of 
accounting and depreciation methods. Nonetheless, the AAO explained that 
depreciation represents an actual cost of doing business, which could represent 
either the diminution in value of buildings and equipment or the accumulation of 
funds necessary to replace perishable equipment and buildings. Accordingly, the 
AAO stressed that even though amounts deducted for depreciation do not 
represent current use of cash, neither does it represent amounts available to pay 
wages. 
We find that the AAO has a rational explanation for its policy of not adding 
depreciation back to net income. Namely, that the amount spent on a long term 
tangible asset is a "real" expense. 
River Street Donuts at 116. "[USCIS] and judicial precedent support the use of tax returns and the 
net income 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 
53 7 (emphasis added). 
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 
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 liabilities4 A 
corporation's year-end current assets are shown on Schedule L, lines l(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. 
- 
According to Barron 's Dictionary of Accounting Terms 1 17 (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 1 1 8. 
The record contains the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation 
Income Tax Return, for 2004 through 2006. The tax returns show that the petitioner is structured as 
an S corporation and its fiscal year is based on the calendar year. The petitioner's tax returns show 
its net income or net current assets in 2004 through 2006 as follows: 
In 2004, the Form 1120s stated net income5 of $82,717 and net current 
assets of $188,663. 
In 2005, the Form 1120s stated net income of $45,343 and net current 
assets of $232,888. 
In 2006, the Form 1120s stated net income of $83,665 and net current 
assets of $384,330. 
For the year 2004, the tax return appears that the petitioner had sufficient net income or net current 
assets to pay the beneficiary the full proffered wage of $80,330 that year; for the year 2005, the 
petitioner appeared to have sufficient net current assets to pay the beneficiary the difference of 
$55,329.98 between wages actually paid to the beneficiary and the proffered wage; and for 2006, the 
petitioner appeared to have sufficient net income or net current assets to pay the beneficiary the 
difference of $42,829.97 between wages actually paid to the beneficiary and the proffered wage. 
However, the record does not contain regulatory-prescribed evidence, such as annual reports, tax 
returns or audited financial statements, for 2007 and 2008, and therefore, the AAO cannot determine 
whether the petitioner had sufficient net income or net current assets to pay the beneficiary the 
difference of $42,829.97 in 2007 and $30,329.97 in 2008 respectively between wages actually paid 
to the beneficiary and the proffered wage. 
Moreover, 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, including I- 129 nonimmigrant petitions. 
USCIS records show that the petitioner filed seven 1-140 immigrant petitions (including the instant 
petition) and 48 1-129 nonimmigrant petitions. The six of 1-140 immigrant petitions were approved 
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 23 (2003), line 17e (2004-2005) or line 18 (2006) of Schedule K. See Instructions for Form 
1 120S, 2006, at http://www.irs.gov/pub/irs-pdf/i 1 120s.pdf (accessed on February 3, 20 10) 
(indicating that Schedule K is a summary schedule of all shareholder's shares of the corporation's 
income, deductions, credits, etc.). 
Page 12 
by USCIS for which the petitioner is obligated to pay three proffered wages in 2004 and 2005, and 
six in 2006 and 2007~ as well as H-1B employees in addition to the instant beneficiary. 
The record does not contain any evidence showing that the petitioner paid all three proffered wages the 
petitioner was responsible to pay in 2004. As previously discussed, the petitioner had net income of 
$82,717 and net current assets of $188,663. The petitioner's net income was just sufEcient to pay one 
proffered wage7 and the net current assets were sufficient to pay two proffered wages. Therefore, the 
petitioner failed to establish that it had ability to pay all three proffered wages to the approved 
beneficiaries in 2004 and further failed to establish ability to pay the instant beneficiary the proffered 
wage of $80,330 in the year of the priority date with balances after deducting the three proffered 
wages for those approved beneficiaries from the net income or net current assets. 
The record does not contain any evidence showing that the petitioner paid all three proffered wages the 
petitioner was responsible to pay in 2005. As previously discussed, the petitioner had net income of 
$45,343 and net current assets of $232,888. The petitioner's net income was insufficient to pay a single 
proffered wage in 2005, and the net current assets were sufficient to pay two proffered wages. 
Therefore, the petitioner failed to establish that it had ability to pay all three proffered wages to the 
approved beneficiaries in 2005 and further failed to establish ability to pay the instant beneficiary the 
difference of $55,329.98 between wages actually paid to the instant beneficiary and the proffered 
wage that year with balances after deducting the three proffered wages for those approved 
beneficiaries from the net income or net current assets. 
In response to the director's request for evidence and on appeal, counsel submitted the petitioner's Form 
941 Quarterly Tax Reports for 2006 and 2007. The For 941 for 2006 shows that the petitioner paid the 
five beneficiaries of the approved petitions partial proffered wages of $186,795. The petitioner must 
6 USCIS records show that the six approved immigrant petitions are as follows: 
-- SRC-07-800- 12 133 filed on May 1,2007 with the priority date of July 13,2004, and approved on 
August 23,2007. 
-- SRC-07-800-12127 filed on May 1, 2007 with the priority date of July 2, 2004, and approved on 
May 14,2007. 
-- SRC-07-800-12 1 17 filed on May 1, 2007 with the priority date of October 26, 2004, and 
approved on October 25,2007. 
-- SRC-07-100-5 1228 filed on February 9, 2007 with the priority date of September 19, 2006, and 
approved on February 2 1,2007. 
-- SRC-07-060-52670 filed on December 28,2006 with the priority date of November 2,2006, and 
approved on January 4,2007. 
-- SRC-07-057-51873 filed on December 22, 2006 with the priority date of October 3, 2006, and 
approved on January 3,2007. 
Assuming the petitioner offered all other beneficiaries the proffered wage at the same rate as the 
one for the instant beneficiary. 
Page 13 
demonstrate that it had sufficient net income or net current assets to pay the difference of $295,185 
between wages actually paid to these beneficiaries of the approved petitions and their proffered wages 
and the difference of $42,829.97 between wages actually paid to the instant beneficiary and her 
proffered wage. As previously discussed, the petitioner had net income of $83,665 and net current 
assets of $384,330 in 2006. While the petitioner's net income was not sufficient to pay these 
differences of total $338,014.97, its net current assets were sufficient to pay them and thus, the 
petitioner established its ability to pay all the six proffered wages in 2006 through the examination of 
wages already paid and net income or net current assets. 
The Form 941 for 2007 shows that the petitioner paid the six beneficiaries of the approved petitions 
partial proffered wages of $340,589.07. The petitioner must demonstrate that it had sufficient net 
income or net current assets to pay the difference of $141,390.93 between wages actually paid to these 
six beneficiaries of the approved petitions and their proffered wages before establish the ability to pay 
the proffered wage to the instant beneficiary. However, as previously mentioned, the record does not 
contain regulatory-prescribed evidence for 2007 and therefore, the AAO cannot determine whether 
the petitioner had sufficient net income or net current assets to pay the six beneficiaries of the 
approved petitions the difference of $141,390.93 between wages actually paid to these six 
beneficiaries of the approved petitions and their proffered wages and to further pay the instant 
beneficiary the difference of $42,829.97 between wages actually paid to the instant beneficiary and 
the proffered wage that year. 
The record does not contain documentary evidence to establish the petitioner's ability to pay the 
proffered wages for 2008 onward. Without regulatory-prescribed evidence to demonstrate that the 
petitioner paid the full proffered wages to the approved beneficiaries and the instant beneficiary or that 
the petitioner had sufficient net income or net current assets to pay all these proffered wages, the AAO 
cannot determine that the petitioner has established continuing ability to pay all proffered wages 
including the proffered wage for the instant beneficiary as of the priority date and continue to the 
present. 
Therefore, the petition cannot be approved. Accordingly, the director's March 4, 2008 decision is 
affirmed. 
Therefore, from the date the Form ETA 750 was accepted for processing by the DOL except for 
2006, the petitioner failed to submit documentary evidence to establish the ability to pay the 
beneficiaries the proffered wages as of the priority date through an examination of wages paid to the 
beneficiary, or its net income or net current assets. 
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.