dismissed EB-2 Case: Soundware Development And Marketing

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
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. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry concerning your case must be made to that 
office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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. Any motion must be filed within 30 
ecision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is a sound developing and soundware supplier. It seeks to employ the beneficiary 
permanently in the United States as an international production development and marketing manager 
pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
fj 1153(b)(2). The petition was accompanied by an ETA Form 9089, Application for Permanent 
Employment Certification (ETA Form 9089), which was certified by the Department of Labor 
(DOL). 
The director determined that the ET,4 Form 9089 failed to demonstrate that the job requires a 
professional holding an advanced degree or the equivalent of an alien of exceptional ability and, 
therefore, the beneficiary cannot be found qualified for classification as a member of the professions 
holding an advanced degree or an alien of exceptional ability. 8 C.F.R. tj 204.5(k)(4). The director 
denied the petition accordingly. 
On appeal, counsel provides no arguments that the position can be classified as an advanced degree 
professional, but rather claims that the director erred in not issuing a request for evidence (RFE) or 
notice of intent to deny before denying the petition. 
The record shows that the appeal is properly and timely filed. 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. tj 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. 
Section 203(b)(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States." The regulation at 8 C.F.R. fj 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
Here, the Form 1-140 was filed on October 5, 2006. On Part 2.d. of the Form 1-140, the petitioner 
indicated that it was filing the petition for a member of the professions holding an advanced degree 
or an alien of exceptional ability. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal.' On appeal, counsel did not submit additional evidence or a brief 
and only asserts that the petitioner expressed its intent to hire a person without a college degree as 
long as the combination of education and experience equals to a Bachelor's degree in business 
administration, marketing or its equivalent. 
The regulation at 8 C.F.R. 5 204.5(k)(4) states in pertinent part that "[tlhe job offer portion of an 
individual labor certification, Schedule A application, or Pilot Program application must demonstrate 
that the job requires a professional holding an advanced degree or the equivalent of an alien of 
exceptional ability." 
In this case, the job offer portion of the ETA Form 9089 indicates that the minimum level of 
education required for the position is a Bachelor's degree in business administration, marketing or its 
equivalent. Lines 8 of Part H reflect that the petitioner will accept alternate combination of 
education (at any level as long as the combination of education and experience equivalent to a 
Bachelor's degree in business administration or marketing) and five years of experience to meet the 
bachelor's degree requirement. The plain meaning of the language indicates that the minimum level 
of education required could be as low as no college degree or college study. Accordingly, the job 
offer portion of the Form ETA 9089 does not require a professional holding an advanced degree or 
the equivalent of an alien of exceptional ability. However, the petitioner requested classification as a 
member of the professions holding an advanced degree or an alien of exceptional ability. A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to United States Citizenship and Immigration Services (USCIS) requirements. See Matter 
of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). In this matter, the appropriate remedy 
would be to file another petition with the proper fee and required do~umentation.~ 
On appeal counsel asserts that the director erred in denying the petition without issuing a RFE or 
NOID. The regulation at 8 C.F.R. § 103.2(b)(8) clearly states that a petition shall be denied "[ilf 
there is evidence of ineligibility in the record." The regulation does not state that the evidence of 
I 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. fj 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). 
2 USCIS records show that the petitioner filed another 1-140 immigrant petition (LIN-08-065-50389) on 
behalf of the instant beneficiary as a skilled worker pursuant to section 203(b)(3) of the Immigration and 
Nationality Act, 8 U.S.C. 9 1153(b)(3) with the Nebraska Service Center on December 21,2007 based on the 
underlying labor certification. The new petition was approved by the Nebraska Service Center on March 9, 
2008 and the beneficiary's I- 1485 adjustment of status application is currently pending. 
ineligibility must be irrefutable. Where evidence of record indicates that a basic element of 
eligibility has not been met, it is appropriate for the director to deny the petition without a request for 
evidence. If the petitioner has rebuttal evidence, the administrative process provides for a motion to 
reopen, motion to reconsider, or an appeal as a forum for that new evidence. In the present case, the 
evidence indicated that the petitioner had failed to demonstrate that the job requires a professional 
holding an advanced degree or the equivalent of an alien of exceptional ability on the ETA Form 
9089 and, therefore, the beneficiary could not be found qualified for classification as a member of 
the professions holding an advanced degree or an alien of exceptional ability. Accordingly, the 
denial was appropriate, even though the petitioner might have had evidence or argument to rebut the 
finding. 
The evidence submitted does not establish that the ETA Form 9089 requires a professional holding 
an advanced degree or the equivalent of an alien of exceptional ability, and the appeal must be 
dismissed. 
Beyond the director's decision and counsel's assertions on appeal, the AAO has identified an 
additional ground of ineligibility and will discuss this issue. 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 ,Ytates, 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 record lacks an original ETA Form 9089 because the petitioner filed another petition using the 
underlying labor certification in the instant case. The regulations at 8 C.F.R. $5 204.5(a)(2) and 
204.5(k)(4)(i) require that any Form 1-140 petition filed under the preference category of Section 
203(b)(2) of the Act as a member of the professions holding advanced degrees be accompanied by a 
labor certification. 
The regulation at 8 C.F.R. 5 103.2(b)(4) provides: 
Submitting copies of documents. Application and petition forms, and documents 
issued to support an application or petition (such as labor certijications, Form DS 
2019, medical examinations, affidavits, formal consultations, letters of current 
employment and other statements) must be submitted in the original unless previously 
filed with USCIS. 
(emphasis added). 
The regulation at 8 C.F.R. 5 204.5(g) provides: "In general, ordinary legible photocopies of such 
documents (except for labor certiJicutions from the Department of labor) will be acceptable for 
initial filing and approval." (emphasis added). The record does not contain the original labor 
certification. Therefore, the evidence would not support an approval of the instant Form 1-140 
petition because the lack of the original of the ETA Form 9089 labor certification. 
Page 5 
The regulation 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawfUl 
permanent residence. Evidence of this ability shall be either in the form of copies of 
annual reports, federal tax returns, or audited financial statements. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
an ETA Form 9089 establishes a priority date for any immigrant petition later based on the ETA Form 
9089, the petitioner must establish that the job offer was realistic as of the priority date and that the offer 
remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. 
The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job 
offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977); see also 8 
C.F.R. 5 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and 
Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to 
pay the beneficiary's proffered wages, although the totality of the circumstances affecting the 
petitioning business will be considered if the evidence warrants such consideration. See Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg. Cornm. 1967). 
Here, the ETA Form 9089 was accepted on August 25, 2006. The proffered wage as stated on the 
ETA Form 9089 is $52.03 per hour ($108,222.40 per year). On the petition, the petitioner claims 
that it has been established in 1988, to have a gross annual income of $6 million, to have a net 
annual income of $1 million, and to currently employ 16 workers. The petitioner also claims that the 
beneficiary has been working with the petitioner in the proffered position since January 2004. 
In general, 8 C.F.R. 5 204.5(g)(2) requires annual reports, federal tax returns, or audited financial 
statements as evidence of a petitioner's ability to pay the proffered wage. That provides further 
provides: "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 establish the 
prospective employer's ability to pay the proffered wage." (Emphasis added.) 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If the 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. In the instant case, the petitioner claims that the 
beneficiary has been working for it under H-1B status. The petitioner submitted the beneficiary's 
W-2 forms for 2004 and 2005, and paystubs for 2006, the year of the priority date. The 
beneficiary's paystubs show that the petitioner paid the beneficiary at the rate of $4,166.67 per semi- 
month ($100,000 per year) in 2006 and paid the beneficiary total amount of $75,000.06 in 2006 as of 
Page 6 
September 30. Therefore, the petitioner has not established that it paid the beneficiary the full 
proffered wage from the priority date. The petitioner must demonstrate that it had sufficient net 
income or net current assets to pay the beneficiary the difference of $8,222.32 between wages 
actually paid to the beneficiary and the proffered wage in 2006 assuming that the petitioner 
continues to pay the beneficiary at the same level as in the first nine months to the end of the year. 
The petitioner must also establish its ability to pay the proffered wage in 2007 through the present. 
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 11 1 (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 Broodcraft 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), aff'd, 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. 
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 liabilitie~.~ 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 evidence in the record shows that the petitioner is structured as an S corporation. The record 
contains the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation, for 2003 and 
2004. However, the petitioner's tax returns for 2003 and 2004 are not necessarily dispositive 
because the priority date in this case is August 25, 2006. The petitioner did not submit its annual 
'~ccordin~ to BarronJs Dictionary of Accc2unting Terms 11 7 (3rd ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
reports, tax returns or audited financial statements for 2006 through the present, and therefore, failed 
to establish its continuing ability to pay the proffered wage from the year of the priority date to the 
present through the examination of wages actually paid to the beneficiary and 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. 5 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.