dismissed EB-2 Case: Software Engineering

U.S. Department of Homeland Security 
U.S. ~itizenshio and Imrnimation services 
identifying data deleted to 
prevent clearly unwarranted 
invasion of penonal privac) 
PUBLIC COPY 
Ofice of~dmiiistrative ~&als, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: AUG 0 2 2010 
LIN-07-070-525 15 
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. 8 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 ofice. 
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. 4 103.5. 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. 8 103.5(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, 
- Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
It seeks to employ the beneficiary 
permanently in the United States as a senior application soRware engineer pursuant to section 203(b)(2) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 153(b)(2). As required by statute, an 
ETA Form 9089 Application for Permanent Employment Certification (ETA Form 9089) approved 
by the Department of Labor (DOL), accompanied the petition. Upon reviewing the petition, the 
director determined that the beneficiary did not satisfj the minimum level of education stated on the 
labor certification. Specifically, the director determined that the beneficiary did not possess a U.S. 
Master's degree or foreign equivalent degree or a foreign degree equivalent to a U.S. Bachelor's 
degree plus at least five years of experience in the specialty required by the certified ETA Form 
9089. 
On appeal, counsel asserts that the petitioner established the beneficiary's educational qualifications 
with the evaluation stating that the beneficiary attained the equivalent of U.S. Master of Science 
degree in computer science or engineering based the beneficiary's two-year master's degree in 
information technology from the Alagappa University in India. 
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. 8 204.5(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.' 
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. 8 103.2(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 3 
The record contains the beneficiary's transcripts showing that the beneficiary completed the three 
years of study and passed the Bachelor of Commerce (3 year degree course) examination - 
, and master of science degree in information technology and transcripts 
for the two years of study from the Alagappa University in India in August 2004. Thus, the issue is 
whether the beneficiary's master degree is, on its own, a single source foreign equivalent to a U.S. 
master's degree, if not, whether the beneficiary is qualified for the proffered position with her single 
source foreign degree 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 suficient 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.l(a). 
It is significant that none of the above inquiries assigned to DOL, or the remaining regulations 
implementing these duties under 20 C.F.R. $ 656, involve a determination as to whether or not the alien 
is qualified for a specific immigrant classification or even the job offered. This fact has not gone 
unnoticed by federal circuit courts. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 
1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). 
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published 
decisions from the circuit court of appeals from whatever circuit that the action arose. See N.L. R. B. 
v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9m 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 . . . . 
Page 4 
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, 1 OISt 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). 
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 121 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 qualifl under 
section 203(b)(2) of the Act as a member of the professions holding an advanced degree with 
anything less than a kll 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. 
Page 5 
Matter of Shah, 17 I&N Dec. at 245. In the instant case, the three-year bachelor of commerce degree 
from Osmania University 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:/Iaccraoedae. 
accrao.org/revister/index/php, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." 
While EDGE confirms that a three-year bachelor of commerce degree from India 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 India 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 commerce degree from Osmania University does not 
represent attainment of a level of education comparable to a bachelor's degree in the United States. 
EDGE also confirms that while a master of science awarded upon completion of two years of study 
beyond the two- or three-year bachelor's degree in India is not the foreign equivalent degree to a 
U.S. master's degree, it represents attainment of a level of education comparable to a bachelor's 
degree in the United States. In order to have experience and education equating to an advanced 
degree under section 203(b)(2) of the Act, the 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). 
For this classification, advanced degree professional, the regulation at 8 C.F.R. $ 204.5(k)(3)(i)(B) 
requires the submission of an "official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree." For classification as a member of the 
professions, the regulation at 8 C.F.R. $204.5(1)(3)(ii)(C) requires the submission of "an official 
college or university record showing the date the baccalaureate degree was awarded and the area of 
concentration of study." We cannot conclude that the evidence required to demonstrate that an alien 
is an advanced degree professional is any less than the evidence required to show that the alien is a 
professional. To do so would undermine the congressionally mandated classification scheme by 
allowing a lesser evidentiary standard for the more restrictive visa classification. Moreover, the 
commentary accompanying the proposed advanced degree professional regulation specifically states 
that a "baccalaureate means a bachelor's degree received @om a college or university, or an 
equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30306 (July 5, 1991). CJ: 8 C.F.R. 
6 204.5(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"). 
In this case, the record contains evidence showing that the beneficiary's master of science degree in 
information technology from the Alagappa University in India is a single source degree awarded 
from an accredited university in India and represents attainment of a level of education comparable 
to a bachelor of science degree in the United States. 
Counsel submits evaluations from Foreign Credential Evaluations, Inc. (FCE), and The Trustforte 
Corporation to support his assertion that the beneficiary possessed a foreign degree equivalent to a 
U.S. master's degree in computer science or engineering based on the beneficiary's two-year master 
of science degree in information technology beyond her three-year bachelor of commerce degree. 
U.S. Citizenship and Immigration Services (USCIS) may, in its discretion, use an evaluation by a 
credentials evaluation organization of a person's foreign education as an advisory opinion only. 
However, 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. 1988). USCIS is not required to accept or may give less weight to that evidence. Matter of 
Caron International, 19 I&N Dec. 791 (Comrn. 1988). 
The beneficiary has a "United States baccalaureate degree or a foreign equivalent degree," and thus, 
meet the minimum level of education required for the equivalent of an advanced degree, namely a 
Bachelor's degree, for preference visa classification under section 203(b)(2) of the Act. However, to 
qualify for the second preference classification, the beneficiary must establish that he possessed at 
least five years of progressive experience in the specialty after his bachelor's equivalent degree but 
prior to the priority date. 
Qualifications for the Job Offered 
Relying in part on Madany, 696 F.2d at 1008, the U.S. Federal Court of Appeals for the Ninth 
Circuit (Ninth Circuit) stated: 
[I]t appears that the DOL is responsible only for determining the availability of 
suitable American workers for a job and the impact of alien employment upon the 
domestic labor market. It does not appear that the DOL's role extends to 
determining if the alien is qualified for the job for which he seeks sixth preference 
status. That determination appears to be delegated to the INS under section 204(b), 
8 U.S.C. tj 1154(b), as one of the determinations incident to the INS'S decision 
whether the alien is entitled to sixth preference status. 
KR.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: 
Page 7 
The labor certification made by the Secretary of Labor ... pursuant to section 
212(a)[(5)] of the ... [Act] ... is binding as to the findings of whether there are able, 
willing, qualified, and available United States workers for the job offered to the alien, 
and whether employment of the alien under the terms set by the employer would 
adversely affect the wages and working conditions of similarly employed United 
States workers. The labor certification in no way indicates that the alien offered the 
certzjied 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. Irvine, Inc., 699 F.2d at 1006, revisited 
this issue, stating: "The INS, therefore, may make a de novo determination of whether the alien is in 
fact qualified to fill the certified job offer." Tongatapu, 736 F. 2d at 1309. 
The key to determining the job qualifications is found on ETA Form 9089 Part H. This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. It is important that the ETA Form 9089 be read as a whole. 
Moreover, when determining whether a beneficiary is eligible for a preference immigrant visa, 
USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. 
See Madany, 696 F.2d at 1015. USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the job requires. Id. The only rational manner by which 
USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job 
in a labor certification is to examine the certified job offer exactly as it is completed by the 
pi-ospective employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829,833 (D.D.C. 
1984) (emphasis added). USCIS'S interpretation of the job's requirements, as stated on the labor 
certification must involve reading and applying the plain language of the alien employment 
certification application form. See id. at 834. USCIS cannot and should not reasonably be expected 
to look beyond the plain language of the labor certification that DOL has formally issued or 
otherwise attempt to divine the employer's intentions through some sort of reverse engineering of 
the labor certification. 
In this matter, Part H, line 4, of the labor certification reflects that a bachelor's degree is the 
minimum level of education required. Line 6 reflects that the proffered position requires 60 months 
(five years) of experience in the job offered. In lines 8 to 8-C, the petitioner indicates that it will 
accept an alternate combination of a master's degree and three years of experience in the job offered. 
As previously discussed, the beneficiary does not possess a foreign degree equivalent to a U.S. 
master's degree. The beneficiary's two-year master of science degree in information technology is 
equivalent to a U.S. bachelor's degree. Therefore, to qualify for the second preference classification 
pursuant to 8 C.F.R. 8 204.5(k)(2) or the requirements set forth on the ETA Form 9089, the 
beneficiary must establish that she possessed at least five years of progressive experience in the 
specialty and in the job offered after her bachelor's equivalent degree but prior to the priority date. 
The beneficiary obtained her bachelor equivalent degree from the Alagappa University in May 2003 
Page 8 
and the priority date in the instant case is March 8, 2006. Therefore, it is impossible for the 
beneficiary to establish her five years of progressive experience in the specialty and job offered 
because the period from her obtaining degree to the priority date in this case is less than five years. 
The beneficiary has a "United States baccalaureate degree or a foreign equivalent degree," but does 
not have the required five years of experience in the specialty and job offered as set forth on the 
ETA Form 9089, and thus, does not qualify for preference visa classification under section 203(b)(2) 
of the Act. Therefore, the beneficiary does not meet the job requirements on the labor certification. 
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 an 
additional ground of ineligibility and will discuss whether or not the petitioner has established that it 
had the continuing ability to pay the proffered wage beginning on the priority date until the 
beneficiary obtains lahl permanent residence. An application or petition that fails to comply with 
the technical requirements of the law may be denied by the AAO even if the Service Center does not 
identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United 
States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 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). 
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 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. In a case where the prospective 
United States employer employs 100 or more workers, the director may accept a 
statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is March 8, 2006. The proffered wage as stated on the ETA Form 9089 is 
$35.26 per hour ($73,340.80 per year). 
The petitioner claimed to have 80 employees on the ETA Form 9089 but claimed 130 employees on 
the petition. While 8 C.F.R. tj 204.5(g)(2) allows the director accept a statement from a financial 
officer of the organization which establish the prospective employer's ability to pay the proffered 
wage in a case where the prospective United States employer employs 100 or more workers, the 
petitioner did not provide any statement from its financial officer in this case. 
Page 9 
Where the petitioner has submitted the requisite initial documentation required in the regulation at 8 
C.F.R. 5 204.5(g)(2), USCIS will first examine whether the petitioner employed and paid the 
beneficiary during the relevant period. If the petitioner establishes by documentary evidence that it 
employed the beneficiary at a salary equal to or greater than the proffered wage, the evidence will be 
considered prima facie proof of the petitioner's ability to pay the proffered wage. In the instant case, 
the petitioner submitted the beneficiary's W-2 form for 2005 and paystubs for 2006. Since the 
priority date is March 8, 2006, the beneficiary's W-2 form for 2005 is not necessarily dispositive. 
The petitioner submitted the beneficiary's monthly paystubs for a period from July to November 
2006. The paystubs show that the petitioner paid the beneficiary, at the rate of $45.60 per hour, 
$7,296.00 on August 1, 2006, $8,390.40 on September 5, 2006, $6,201.60 on October 3, 2006, 
$8,025.60 on November 1, 2006 and $6,931.20 on December 1, 2006. Since the petitioner paid the 
beneficiary on a monthly basis, the payment on December 1,2006 is the last payment in 2006. The 
year-to-date earnings as of December, also the yearly earnings in 2006, were $71,880.80. Therefore, 
the petitioner established that it paid a partial proffered wage but failed to establish that it paid the 
beneficiary the full proffered wage of $73,340.80 in 2006, the year of the priority date. The 
petitioner must demonstrate that it had sufficient net income or net current assets to pay the 
difference of $1,460.00 between wages actually paid to the beneficiary and the proffered wage in 
2006 and the full proffered wage per year thereafter. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal 
to the proffered wage during that period, USCIS will next examine the net income figure reflected 
on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. Federal courts have recognized the reliance on federal income tax returns as a valid basis 
for determining a petitioner's ability to pay the proffered wage. See Elatos Restaurant Corp. v. 
Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986). See also Chi-Feng Chang v. Thornburgh, 71 9 F. 
Supp. 532, 536 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080, 1083 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647,650 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th 
Cir. 1983). Showing that the petitioner's gross receipts exceeded the proffered wage is insuficient. 
Similarly, showing that the petitioner paid wages in excess of the proffered wage is insuficient. In 
K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and 
Naturalization Service, now USCIS, had properly relied on the petitioner's net income figure, as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 
The court specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a 
petitioner's ability to pay a proffered wage. If the net income the petitioner demonstrates it had 
available during that period, if any, added to the wages paid to the beneficiary during the period, if 
any, do not equal the amount of the proffered wage or more, USCIS will review the petitioner's 
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 
Page 10 
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 liabilities2 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. 
The evidence in the record shows that the petitioner is structured as a C corporation. The 
petitioner's fiscal year is based on a calendar year. The record contains the petitioner's Form 1120, 
U.S. Corporation Income Tax Return for 2005. However, it is not necessarily dispositive since the 
priority date is March 8,2006. Counsel submitted the petitioner's Income Statement for one month 
ended December 3 1, 2005 and one month ended December 3 1, 2004, and Balance Sheet as of 
December 3 1, 2005. However, these financial statements are not dispositive because they were for 
the period prior to the priority date. In addition, these financial statements are not audited. The 
regulation at 8 C.F.R. 5 204.5(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. 
The unsupported representations of management are not reliable evidence and are insufficient to 
demonstrate the ability to pay the proffered wage. 
The petitioner failed to submit evidence to demonstrate that it had the ability to pay the difference 
between wages actually paid to the beneficiary and the proffered wage in 2006, and to pay the 
beneficiary the full proffered wage in 2007 and subsequent years. Therefore, the petitioner has not 
established that it had the continuing ability to pay the proffered wage beginning on the priority date. 
In addition, 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 1-129 nonimmigrant petitions. 
2 According to Barron 's Dictionary of Accounting Terms 1 17 (3" 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 18. 
Page 11 
USCIS records show that the petitioner filed 1,247 immigrant and nonimmigrant petitions with 
service centers. The record does not contain any documentary evidence showing that the petitioner 
fulfilled its obligations to pay these beneficiaries of immigrant and nonimmigrant petitions their 
proffered wages or prevailing wages. The record does not contain evidence showing that the 
petitioner had sufficient net income or net current assets to pay these proffered wages or prevailing 
wages in 2006 onwards. Therefore, the petitioner failed to establish its continuing ability to pay all 
the proffered wages in these relevant years. 
USCIS may consider the overall magnitude of the petitioner's business activities in its determination 
of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 
(BIA 1967). The petitioning entity in Sonegawa had been in business for over 11 years and 
routinely earned a gross annual income of about $100,000. During the year in which the petition 
was filed in that case, the petitioner changed business locations and paid rent on both the old and 
new locations for five months. There were large moving costs and also a period of time when the 
petitioner was unable to do regular business. The Regional Commissioner determined that the 
petitioner's prospects for a resumption of successful business operations were well established. The 
petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her 
clients included Miss Universe, movie actresses, and society matrons. The petitioner's clients had 
been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in 
California. The Regional Commissioner's determination in Sonegawa was based in part on the 
petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, 
USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls 
outside of a petitioner's net income and net current assets. USCIS may consider such factors as the 
number of years the petitioner has been doing business, the established historical growth of the 
petitioner's business, the overall number of employees, the occurrence of any uncharacteristic 
business expenditures or losses, the petitioner's reputation within its industry, whether the 
beneficiary is replacing a former employee or an outsourced service, or any other evidence that 
USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In the instant case, the petitioner did not submit documentary evidence to establish its ability to pay 
the proffered wage for a single year of those it must demonstrate that it had sufficient net income or 
net current assets to pay the proffered wage. In addition, given the record as a whole, the 
petitioner's history of filing petitions and the fact that the number of immigrant and nonimmigrant 
petitions filed reflects ten times of the petitioner's current workforce, the AAO must also take into 
account the petitioner's ability to pay the petitioner's wages in the context of its overall recruitment 
efforts. Thus, assessing the totality of the circumstances in this individual case, it is concluded that 
the petitioner has not established that it had the continuing ability to pay the proffered wages. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, 
that burden has not been met. 
Page 12 
ORDER: The appeal is dismissed.