dismissed EB-2 Case: Software Engineering

(b)(6)
DATE: APR 2 It 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 Inu:ni~ation 
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: 
INSTRUCI'IONS: 
Enclosed please find the d~cision 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 con.ceming your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file ;1 motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice ofAppeal or Motion, with a fee of $630.· The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly wit~ the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
8fuf.t fh 1t1 £CtTltnMk_ 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner is an IT services business. It seeks to employ the beneficiary permanently in the 
United States as a senior software engineer. As required by statute, the petition is accompanied 
by an ETA Form 9089, Application for Permanent Employment Certification, approved by the 
United States Department of Labor (DOL). The director determined that the petitioner had not 
established 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 ofthe procedural history will be made only as necessary. 
As Set forth in the director's March 19, 2012 denial, the primary issue in this case is whether the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains lawful permanent residence. 
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(2), provides immigrant 
classification to members of the professions holding advanced 
degrees or their equivalent and whose services are sought by an employer in the United States. 
An advanced degree is a United States academic or professional degree or a foreign equivalent 
degree above the baccalaureate level. 8 C.P.R. § 204.5(k)(2). The regulation further states: "A 
United States baccalaureate degree or a foreign equivalent degree followed by at least five years 
of progressive · experience in the specialty shall be considered the equivalent of a master's 
degree. If a doCtoral degree is customarily required by the specialty, the alien must have a 
. United States doctorate or a foreign equivalent degree." /d. 
/ 
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural 
or educational interests, or welfare of the United States." The regulation at 8 C.P.R. § 
· 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that 
ordinarily encountered." 
The regulation at 8 C.P.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 iminigrant 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 iawful permanent residence. Evidence of this ability shall be either in the 
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form of copies of annual reports, federal tax returns, or audited . fmancial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date, which is the date the ETA Form 9089 was accepted for processing by any office 
within the employment system of the DOL. See 8 C.F.R. § 204.5(d). 
Here, the ETA Form 9089 was accepted on OCtober 27, 2009. The proffered wage as stated on 
the ETA Form 9089 is $110,240.00 per year. The ETA Form 9089 states that the position 
requires a master's degree in computer scien~e, engineering, or related or equivalent field of 
study and 12 months of experience in the job .offered or as a progranuiler analyst or consultant, 
or a bachelor'~ degree and five years of progressive experience as a senior softwary engineer, 
programmer analyst or consultant. 
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.1 
' . 
The evidence in the record of proceeding shows that the petitioner is structured as an S 
corpqration. On the petition, the petitioner Ciaimed to have been established January 1, 2003, 
and that it currently employs 204 workers. . According to the tax returns in the record, the 
petitioner's fiscal year is based on a calendar year. On the ETA Form 9089, signed by the 
beneficiary on July 11, 2010, the beneficiary claims to have been employed by the petitioner 
since September 10, 2007. · 
The petitioner must establish that itS job offer to: the beneficiary is a realistic one. Because the filing 
of an ETA Form 9089 establishes·a priority dat~ for any immigrant petition later based on the ETA 
Form 9089, the petitioner must establish that the job offer was realistic as of the priority date and 
that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful 
permanent residence. The petitioner's ability to pay the proffered wage is an essential element in 
evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting 
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) requifes · the petitioner to 
. demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the 
totality of the circumstances affecting the petitioning business will be considered if the evidence 
warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612:(Reg. Comm. 1967). 
In determii:ring the petitioner's ability to pay the proffered wage during a given period, USCIS 
will fust 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 
1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-
290B, which are incorporated into the regulations at 8 C;F.R. § 103.2(a)(l). 
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the petitioner's ability to pay the proffered wage. The record of proceeding contains evidence of 
wages paid to the beneficiary and the deficiency between the wage paid and the proffered wage 
as shown in the table below: 
• In 2009, the IRS Form W-2 stated total wages of $78,254.36 (a deficiency of 
$31,985.64) . 
• In 2010, the IRS Form W-2 stated total wages of $81,837.32 (a deficiency of 
$28,402.68). 
• In 2011, the IRS Form ~W-2 stated total wages of $83,564.39 (a deficiency of 
$26,675.61). 
If, as in this case, the petitioner does not establish that it employed and paid the beneficiary an 
amount at least equal to the proffered wage during that period, USCIS will next examine the net 
income figure reflected on the petitioner's federal income tax return, without consideration of 
depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1
51 
Cir. 
2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), a/f'd, No. 10-1517 
(61h Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for determining 
a petitioner's ability 
to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) . (citing Tongatapu 
Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. 
Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 
1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), 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 USCIS, had properly relied on the petitioner's net income figure, as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 
The court specifically rejected the argument that USCIS should have considered income before 
expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 
881 (gross profits overstate an employer's ability to pay because it ignores other necessary 
expenses). 
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 
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I 
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 lise of cash, neither does it represent 
amounts available to pay wages. 
We find that the AAO has a rational explanation for its policy of not adding 
depreciation back to net income. Namely, · that the amount spent on a long 
term tangible asset is a "real" expense. 
River Street Donuts at 118. "[USCIS] and judicial precedent support the use of tax returns and 
the net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support." Chi­
Feng Chang at 537 (emphasis added). 
The proffered wage is $110,240 .00. The petitioner's 1120S2 tax returns demonstrate its net 
income as shown in the table below: 
• In 2009, the Form 1120S stated net income of $1,294,580.00. 
• In 2010, the Form 1120S stated net income of $1,238,382;00. 
• In 2011, the Form 1120S stated net income of $1,852,781.00. 
Although the net income amounts for 2009, 2010, and 2011 exceed the proffered wage amount, 
USCIS records indicate that the petitioner has 
filed 96 immigrant visa petitions since 2010. The 
petitioner submitted documentation indicating that it has wage obligations to over 150 
beneficiaries of immigrant visa petitions and that these wage obligations remain open and 
overlap the obligation that it owes to pay the ·current beneficiary the proffereq wage. 
Consequently, USCIS must 
also take into account the petitioner's ability to pay the beneficiary's 
wages in the context of its overall recruitment efforts. Presumably, the petitioner has filed and 
obtained approval of the labor certifications on the representation that it requires all of these 
workers and intends to employ them upon approval of the petitions. Therefore, it is incumbent 
upon the petitioner to demonstrate that it has. the ability to pay the wages of all of the individuals 
it is seeking to employ. If we examine only the salary requirements relating to the 1-140 
petitions, the petitioner would need to establish that it has the ability to pay combined salaries of 
the beneficiaries. 
2 Where an S corporation's income is exclusively from a trade or business, USCIS considers net 
income to be the figure for ordinary income, shown on line 21 of page one of the petitioner's IRS 
Form 1120S. However, where an S corporation has income, credits, deductions or other 
adjustments from sources other than a trade or business, they are reported on Schedule K. If the 
Schedule K has relevant entries for additional income, credits, deductions or other adjustments, net 
income is found on line 18 of Schedule K. See Instructions for Form 1120S, at 
http://www.irs.gov/pub/irs-pdf/i1120s.pdf (indicating that Schedule K is a summary schedule of 
all shareholders' shares ofthe corporation's income, deductions, credits, etc.). 
(b)(6)
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The petitioner must establish that it had sufficient funds to pay all the wages from the priority 
date and continuing to the present. 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 simultaneously, the 
petitioner must produce evidence that its job offers to each beneficiary are realistic, and 
therefore, that it has the ability to pay the proffered wages to each of the beneficiaries of its 
pending petitions, as of the priority date of each petition and continuing until the beneficiary of 
each petition obtains lawful permanent residence. See Matter of Great Wall, 16 I&N Dec. 142, 
144-145 (Acting Reg. Comm. 1977) (petitioner must establish ability to pay as of the date of the 
Form MA 7-50B job offer, the predecessor to·the Form ETA 750 and ETA Form 9089). See also 
8 C.F.R. § 204.5(g)(2). The petitioner submitted copies of other beneficiaries Forms W-2 and 
several charts of wages owed and paid to these other beneficiaries in 2009, 2010, and 2011. 
Counsel indicates in his brief that the wages oweo to the beneficiaries in 2009 totaled 
$6,203,299.00 and that the total wages paid were $4,527,184.50, leaving a deficit of 
$1,676,114.50 for 2009 (Exhibit J). Considering the petitioner's net income of $1,317,213.00 for 
2009, counsel states that the deficit is $358,901.50. For 2010, counsel indicates total wage 
obligations were $9,232,756.00 and total wages paid were $7,210,089.00, leaving a deficit of 
$2,022,666.00 (Exhibit L), and that considering the petitioner's net income of $1,238,636.00 in 
2010, the petitioner's deficit on wage obligations is $784,030.00 for 2010.3 In 2011, counsel 
stated that the total deficit between the wages paid and the wages owed to the multiple 
beneficiaries was $776,668.02, an amount covered by the petitioner's net income in 2011. 
Therefore, using the petitioner's own figures, net income amounts for 2010 and 2011 are 
insufficient to establish the petitioner's ability to pay the remainder of the proffered wage to the 
instant beneficiary and the beneficiaries of the other immigrant visas. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS 
may review the petitioner's net current aSsets. Net current assets are the difference between the 
petitioner's current assets and current liabilities.4 A corporation's 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 
demonstrate its net current assets as shown in the table below: 
3 The AAO calculated the deficit between the amounts owed and those paid in 2010 on the 
petitioner's spread sheet at exhibit G as $3.6 million. After deducting the petitioner's income, 
using the figures on Schedule "L" the total deficit is $2,361.364.00 and not $784,030 as noted by 
counsel. 
4According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" 
consist of items having (in most cases) a life of one year or less, such as cash, marketable 
securities, .inventory and prepaid expenses. "Current liabilities" are obligations payable (in most 
cases) within one year, such accounts payable, short-term notes payable, and accrued expenses 
(such as taxes and salaries). ld. at 118. 
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• hi 2009, the Form 1120S stated net current assets of $1,014,164.00. 
• In 2010, the Form 1120S stated net current assets of $1,101,781.00. 
• In 2011, the Form 1120S stated net current assets of $1,491,763.00. 
As noted above, although the net current assets for 2009, 2010, and 2011 exceed the proffered 
wage amount for the ·beneficiary of the instant petition, the .petitioner has failed to demonstrate 
using its figures at exhibits J and L that it could pay all proffered wage amounts for all 
beneficiaries out of its net current assets in 2009 and 2010. 
' . 
Therefore, from the date the ETA Form 9089 was accepted for processing by the DOL, the 
petitioner had not established that it had the continuing ability to pay the beneficiary of the 
instant petition the proffered wage as of the priority date while continuing to meet its wage 
obligations to all sponsored beneficiaries through -an examination of wages paid to the 
beneficiary, or its net income or net current assets. 
On appeal, counsel asserts that the director's decision is based on an incorrect interpretation of 
the petitioner's financial records, and that the petitioner has provided evidence sufficient to show 
that it has the ability .to pay the proffered wage. Counsel further asserts that USCIS must review 
the evidence pertaining to the instant beneficiary only and not consider other beneficiaries of 
other petitions in determining the petitioner's ability to pay the proffered wage. Contrary to 
counsel's claims, in assessing the totality of the circumstances, the 150 immigrant visa petitions 
filed by the petitioner whose beneficiaries have not ob_tained lawful permanent residence must be 
considered in determining whether the petitioner is making a realistic job offer and has the 
overall financial ability to satisfy the proffered wage. 
Counsel asserts that the petitioner's officer's compensation should be taken into consideration in 
determining its ability to pay the proffered wage. The petitioner's IRS Forms for 2009, 2010, and 
2011 show that the petitioner paid officer compensation in the amoW,It of $207,706.00 in 2009, 
$181,734.00 in 2010, and $236,258.00 ·in 2011. However, there is no evidence · in the record of 
proceeding, e.g., sworn affidavits by the shareholders to show that they agree to forego their 
compensation in an amount sufficient to pay the beneficiary and all sponsored immigrant visa 
beneficiaries from the priority date until each obtains lawful permanent residence status. 
Without such proof, the AAO may not consider the officers' compensation to determine the 
petitioner's ability to pay the proffered wage·. 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. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). -. 
Because a corporation is a separate and distinct legal .entity from its owners and shareholders, the 
assets of its shareholders or of other enterprises . or . corporations cannot be _considered in 
determining the petitioning corporation's ability to pay the proffered wage. See Matter of 
Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). The court in Sitar v. Ashcroft, 
20Q3 WL 22203713 (D.Mass. Sept. 18, 2003} stated, "nothing in the governing regulation, .8 
(b)(6)
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C.F.R. § 204.5, permits [USCIS] to consider the financial resources ~f individuals or entities 
who have no legal obligation ~o pay the wage." 5 · 
In examining a petitioner's ability to pay the proffered wage, the fundamental focus of the 
USCIS' determination 
is whether the employer is making a realistic job offer and has the overall 
financial ability to satisfy the proffered wage. Matter ofGreat Wall, 16 I&N Dec. 142; 145 
(Acting Reg'l Comm 'r 1977). Accordingly, after a review of the petitioner's federal tax returns 
and all other relevant evidence, we conclude that the petitioner has not established that it had the 
ability to pay the salary offered as of the priority date of the petition and continuing to present. 
Accordingly, from the date the labor certification was accepted for processing by the DOL, the 
petitioner had 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. 
USCIS inay 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. The petitioning entity in Sonegawa had been in business for over 11 years ~nd 
routinely earned a gross annual income of about $100,000. During the yeadn 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 w_hen 
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 
5 Using the figures provided by the petitioner on exhibits J, K and L the officer's compensation 
would cover the deficit in 2009 and 2010. In 2011, the petitioner would have sufficient net 
income and net current assets to pay the deficit. Using the figures on exhibit "G", however, the 
deficiency in 2010 is $2,361,364.00, an amount that cannot be reached . by redistributing the 
officer compensation. In any further filing, the petitioner must establish both the shareholder's 
willingness and ability to forego all or part of their officer's compensation for 2007~ 2008 and 
2009 and explain why the chart at exhibit G is so different from those of J K and L, which have 
far fewer people pending for each year than the spread sheet for the three years at exhibit G. The 
petitioner has not shown that those listed on exhibit G obtained permanent residence, or that any 
of the petitions were denied or revoked. Going on record without supporting documentary 
eviden~ is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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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 this matter, the totality of the circumstances does not establish that the petitioner had or has 
the ability to pay the proffered wage in the relevant years .. There are no faCts paralleling those 
found in Sonegawa that are present in the instant matter to a degree sufficient to establish that the 
petitioner had the ability to pay the proffered wage. The petitioner has not demonstrated the 
occurrence of any uncharacteristic business expenditures or losses in 2009, 2010, and 2011 that 
would have directly affected its ability to pay the proffered wage. The record is not persuasive in 
establishing that the job offer was realistic. · · 
Accordingly, the evidence submitted does not establish that the petitioner had the continuing 
ability to pay the proffered wage beginning on the priority date. 
Beyond the decision of the director, ihe petitioner has also not established that the beneficiary is 
qualified for the offered position. The petitioner must establish that the beneficiary possessed all 
~he education, training, and experience specified on the labor certification as of the priority date. 
8 C.F.R. § 103.2(b )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting 
Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). In 
evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor 
certification to determine the required qualifications for the· position. USCIS may not ignore a 
term of the labor certification, nor may it impose additional requirements. See Matter of Silver 
Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Madany v. Smith, 
696 F.2d 1008 (D.C. Cir. 1983); KR.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 (1
51 
Cir. 1981). 
In the instant case, tJ;le labor certification states that the offered position requires a master's 
degree in computer science, engineering or a related field and 1 year of related work experience 
or alternatively, a bachelor's degree in computer science, engineering or a related field, and five 
years of progressive experience .in the job offered or a related field. On the labor certification, the 
beneficiary claims to qualify for the offered position based on a ba.Chelor' s degree in engineering 
from the Regional Engineering College and experience as a senior software engineer. 
The beneficiary's claimed qualifying experience ~ust be supported by letters from employers 
giving the name, address, and title of the employer, and a description of the beneficiary's 
experience. See 8 C.F.R. .§ 204.5(g)(l). The record contains letters of employment from 
in which the declaqmt stated that the company employed the beneficiary as a senior systems 
· engineer from July 10, 2003 to January 30, 2004; from in which the ·declarant 
.indicated that the company employed the beneficiary as a senior programmer from February 7, 
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2001 to May 7, 2003; and· from in which the declarant stated that the company 
employed the beneficiary from February 9, 2004 to September 4, 2007 and that his title at the 
time of his resignation was senior associate. The declarants in the _ and letters 
failed to specify the beneficiary's job duties and whether he was ~mployed full-time. See 
8 C.F.R. § 204.5(1)(3)(ii)(A). I 
The beneficiary listed the petitioner ·as an employer. However, in response to question J.21, 
which asks, "Did the alien gain any of the qualifying experience with the employer in a position 
substantially comparable to the job opportunity requested," the petitioner answered "no." In 
general, if the answer to question J.21 is no, then the experience with the employer may be used 
by the beneficiary to qualifY for the proffered position if the position was not substantially 
comparable6 and the terms of the ETA Form 9089 at H.10 provide that applicants can qualify 
through an alternate occupation. Here, the beneficiary indicates in response to question K.l. that 
his position with the petitioner was as a senior software engineer, and the job duties are the same 
duties as the position offered. Therefore, the experience gained with the petitioner was in the 
position offered and is substantially comparable as he was performing the same job duties more 
than 50 percent of the time. According to DOL regulations, therefore, the petitioner cannot rely 
on this experience for the beneficiary to qualify for the proffered position. 
The evidence in the record does not establish that the beneficiary possessed the required 
experience set forth on the labor certification by the priority date. Therefore, the petitioner has 
also failed to establish that the beneficiary is qualified for the offered position. 
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 ~ought 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. 
6 A definition of"substantially comparable" is found at 20 C.F.R. § 656.17: 
5) For purposes of this paragraph (i): 
(ii) A "substantially comparable" job or position means a job or position 
requiring performance of the same job duties more than 50 percent of the 
time. This requirement can be documented by furnishing position 
descriptions, the percentage of time spent on the various duties, 
organization charts, and payroll records.