dismissed EB-2 Case: Technology Services

(b)(1)
DATE: . fEB 1 9 201fffice: TEXAS SERVICE CENTER 
IN RE: 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 Immigration 
Services · 
FILE: 
PETITION: Immigrant Petition -for Alien Worker ~sa Member of the Professions Holding an Advanced 
Degree or an · Alien of Exceptional · Ability Pursuant to Section 203(b )(2) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2) · · 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the deCision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have.been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the . law in reaching its decision, ~r you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance withthe instructions on Form I-290B, Notice of Appeal 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 with 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,. 
1 
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 a technology and professional 
services business. It . seeks to employ the 
beneficiary permanently in the United States as a senior sales executive. 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 procedunil history in this case is documented by the record and incorporated 
into the decision. Further elaboration of the procedural history will be made only as necessary. . · 
As set forth in the director's November 17, 2010 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.F.R. § 2045(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.F.R. § 
204.5(k)(2) ·defines "exceptional ability" as "a degree of expertise significantly above that 
ordinarii y encountered." 
The regulation at 8 C.F.R. § 204.5(g)(2) states i_n 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 dentonstrate this ability at 
the time the priority date is established and continuing until the beneficiary 
obtains hiwful permanent residence. Evidence of this ability shall b~ either in the 
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form of copies of annual . reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date, which is the date the ETA Form 9089 was accepted for processing by any office 
within the employment system of the ,DOL. See 8 C.P.R.§ 204.5(d). 
Here, the ETA Form 90S9 was accepted on May 20, 2010. The proffered wage as stated on the 
ETA Form 9089 is $53.13 per hour based upon a 40 hour work w~ek ($110,510.40 per year). 
The ETA Form 9089 states that the position requires a bachelor's degree in economics or in a 
related fiel~ and 60 months of experience in the job offered. · 
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 
corporation. On the petition, the petitioner claimed to have been established on January 19, 
2006, and that it currently employs 2 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' the beneficiary does not claim to have been employed by the petitioner. 
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.P.R.§ 204.5(g)(2). In evaluating whether a job offer is realistic, 
United States Citizenship and hnmigration 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 petitioni.ilg business will be -considered if the evidence 
warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS 
will first examine whether the petitioner employed and paid the beneficiary during that period. If 
the petitioner establishes by documentary ' evidence that it employed the beneficiary at a salary 
equal to or greater thim the proffered wage, the evidence will be considered prima facie proof of 
the petitioner's ability t<;> pay the proffered wage.. The record of proceeding does not contain 
evidence of wages paid to the beneficiary by the petitioner . 
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.P.R.§ 103.2(a)(1). 
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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 returri, without consideration of 
depreciation or other expenses. River . Stre~t Donuts, LLC v. Napolitano; 558 F.3d 111 (1st Cir. 
· 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), a.ff'd, No. 10-1517 
(6th 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.ff'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 shmving 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 riot repre~ent a specific cash 
expenditure during the year claimed. Furthermore, the AAO indicated that the 
allocation of the depreciation of a long-term asset could ~e spread out over the 
years o·r 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 Srreet Donuts at 118. "[USCIS] and judicial precedent supp9rt the use of tax returns and · 
the net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these 
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figures should be revised by the court by adding back depreciation is without support." Chi-
Feng Chang at 537 (emphasis ~dded). · · . · · 
The petitioner's 2011 ·federal. income tax retu~ is the most recent tax return in the record. The 
proffered wage is $110,510.40. The petitioner's 1120S2 tax returns demonstrate its net income 
as shown in the table below: 
• In 2010, the Form 1120S stated net income of$116,321.00. 
• In 2011, the Form 1120S stated net income of $37,233.00. 
The evidence in the record establishes that it is more likely than not that the petitioner had the 
continuing ability to pay the proffered wage in 2010, but not in 2011. In fact, the petitioner's 
total revenue w·as $89,999.00, which is less than the proffered wage.3 
In response to the AAO's Request for Evidence (RFE), the petitioner submitted a copy of 2011 
and 2012 tax returns for ReconArt, Inc. The petitioner's president stated in response to the RFE 
that the petitioner began heavily investing in products in 2010; and that the owner's 
intention is to have assume all assets of However, any 
such assumption is speculative and would not serve to cure the petitioner's inability to pay he 
wage in 2011. 
· Therefore, for 2011, the petitioner did not have sufficient 
net income to pay the proffered wage. 
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 
~etitioner's current assets and current liabilities.4 A corporation's year-end
1 
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 · 
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 addition~} income, credits, deductions or other adjustments, net 
income is found on line 18 of Schedule K. See Instructions for Form 1120S, at 
http://W\Vw.irs.gov/pub/irs-pdf/il120s.pdf (indicating that Schedule K is a summary schedule of 
all shareholders' shru;es of the corporation's income, deductions, credits, etc.). 
3 It is noted that, even if the AAO were to base the proffered wage on a 35-hour work week, the 
petitioner did not have sufficient net income, or even gross receipts, in 2011 to pay the wage. 
According 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). /d. at 118. 
(b)(6). '· 
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the beneficiary (ifany) are equal to or greater than the proffered wage, the petitioner is expected 
to be able to pay the proffered wage usirig.those net current assets. · 
In this matter, the petitioner had 2011 net current assets of $60,589.00. Therefore, for 2011, the · 
petitioner failed to establish its ability to pay the proffered wage to the benefiCiary through its net 
current assets. 
1. 
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. 
On appeal, · counsel asserts that the petitioner's financial . records submitted as evidence 
demonstrate that it has the ability to pay the proffered wage. Counsel further asserts that the 
director failed to consider the totality of the circumstances in order to obtain an accurate account 
o~ the petitioner's financial ability to pay the proffered wage. 
The petitioner claims that the assets and financial strength of should be considered in 
evaluating the petitioner's ability to pay the wage. This argument is not persuasive. 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). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 
22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. § 
204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no 
legal obligation to pay the wage." . 
Counsel states that the petitioner hired a part-time. worker who will be retiring once the instant 
application is approved, and that the wages paid. to this worker will be available to pay the 
beneficiary's wages. The petitioner submitted a copy of a worker's Form W-2 for 2009. 
Although counsel asserts that wages paid to another beneficiary is sufficient to establish the 
petitioner's . ability to pay the proffered wage to the beneficiary, the petitioner has failed to provide 
evidence that the petitioner has replaced or will replace other workers with the beneficiary. In 
general, wages already paid to others are not available to prove the ability to pay the wage proffered 
to the beneficiary at the priority date of the petition and continuing to the preserit. Moreover, there 
is no evidence that the position of the other ~mployee involves the same duties as those set forth in 
the ETA Form 9089. · Even if the wages were considered in 2011, these would have been 
insufficient to pay the wage given that the petitioner's entire revenue was less than the wage. 
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 o{Sonegawa, 
12 I&N Dec. 612 . . The petitioning entity in Sonegawa had been in business for over 11 years and 
routinely earned a gross annual income of about $100,000. During the year in which the petition 
was filed in that case, the petitioner changed business locations and paid rent on both the old and . 
new locations for five months .. There were large moving costs and also a period of time when 
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the petitioner was unable to do regular busine~s. The Regional Commissioner determined that 
the petitioner's prospects for a · resumption . of successful business operations were well 
established. The petitioner w~s a fashion designer whose work had been featured in Time and. 
Look magazines. Her clients included .Miss Uni'verse, 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. US CIS. 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 
empioyee 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 suffident 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 2011 and 2012 that would· 
have directly affected its ability to pay the
1 
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. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.