remanded EB-2 Case: Information Technology

(b)(6)
U.S. Department of Homeland Securit y 
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 
DATE: OCT 0 3 2014 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: 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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions oflaw nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of App eal or Motion (Form I-290B) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
/It/( ~F 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center 
(the director) and is now before the Administrative Appeals Office (AAO) on appeal. The director's 
decision will be withdrawn and the petition remanded for a new decision. 
The petitioner is an IT services business. It seeks to employ the beneficiary permanently in the 
United States as a computer and information systems manager. As required by statute, the petition is 
accompanied by 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 of the procedural history will be made only as necessary. 
As set forth in the director's September 4, 2013 denial, an issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the 
beneficiary obtains lawful permanent residence. 
Section 203(b)(2) ofthe Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of 
the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(l). 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 
Ability to Pay 
The regulation at 8 C.F.R. § 204.5(g)(2) states inpertinent 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 demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, which is the date the ETA Form 9089, Application for Permanent Employment 
Certification, was accepted for processing by any office within the employment system of the DOL. 
1 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. § 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, 766 (BIA 1988). 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 3 
See 8 C.P.R. § 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary 
had the qualifications stated on its ETA Form 9089, Application for Permanent Employment 
Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea 
House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
Here, the ETA Form 9089 was accepted on September 20, 2011. The proffered wage as stated on 
the ETA Form 9089 is $156,312.00 per year. The ETA Form 9089 states that the position requires a 
Bachelor's degree in computer science, engineering, math, business administration or related and 60 
months of experience in the proffered position or as a programmer , analyst, engineer, developer, 
lead, architect or consultant. 
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. 
On the petition, the petitioner claimed to have been established in 2008 and to currently employ 105 
workers. On the ETA Form 9089, signed by the beneficiary on April 30, 2012, the beneficiary 
claimed to have 
worked for the petitioner since July 16, 2011. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
an ETA Form 9089 labor certification application 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, 144 (Acting 
Reg'l Comm 'r 1977); see also 8 C.P.R. § 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 ofSonegawa , 12 r&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
In determining the petitioner 's ability to pay the proffered wage during a given period, users 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 demonstrated that it 
has paid the beneficiary partial wages in all relevant years as of the priority date in 2011. Thus, the 
petitioner must demonstrate that it can pay the difference between wages actually paid to the 
beneficiary and the proffered wage since 2011. In the instant case, the record reflects that the petitioner 
paid the beneficiary $45,000.00 in 2011, $69,814.93 in 2012 and $77,030.00 in 2013. The petitioner 
must show that it had the ability to pay the difference between the actual wages paid and the proffered 
wage from 2011 through 2013 _2 
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, users will next examine the net income figure reflected 
2 
The difference between the actual wages paid and the proffered wage is $111,312.00 in 2011, $86,497.07 in 2012 and 
$79,282.00 in 2013. 
(b)(6)
NON-PRECEDENT DECISION 
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on the petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Taco Especial v. 
Napolitano, 696 F. Supp. 2d 873, 880 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. 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 Rest. Corp. v. Sava, 632 F. 
Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Haw. Ltd. V; Feldman, 736 F.2d 
1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532, 537 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080, 1084 (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). 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. 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 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 St. Donuts, 558 F.3d 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, 719 F. Supp. at 537 (emphasis added). 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the IRS Form 
1120, U.S. Corporation Income Tax Return. 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, users will review the petitioner's net 
current assets. Net current assets are the difference between the petitioner's current assets and 
current liabilities .3 A corporation's year-end current assets are shown on Schedule L, lines 1 through 
6 and include cash-on-hand. 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 table below reflects the information provided by 
the petitioner regarding its ability to pay the proffered wage: 
Calculation Balance 
of Net Due to 
Tax Current W-2 Instant 
Year Net Income Assets Wage Beneficiary 
2011 -$1,015.00 $551,424.00 $45,000.00 $111,312.00 
2012 $408,817.00 $845,256.00 $69,814.93 $86,497.07 
2013 $457,984.00 $3,912,734.00 $77,030.00 $79,282.00 
Therefore, for 2011 through 2013, the petitioner did not pay the full proffered wage but did have 
sufficient net income or net current assets to pay the difference between wages actually paid and the 
proffered wage. 
As the petitioner has filed petitions for multiple beneficiaries, the petitioner must produce evidence that 
its job offer to each beneficiary is realistic and that it has the ability to pay the proffered wages to each 
of the beneficiaries of its pending or approved petitions, as of the priority date and continuing until the 
beneficiary of each petition obtains lawful permanent residence. According to the petitioner it has filed 
sixty-five (65) Form I-140 immigrant petitions on behalf of other beneficiaries. Accordingly, the 
petitioner must establish that it has had the continuing ability to pay the combined proffered wages to 
each beneficiary from the priority date of the instant petition. See Matter of Great Wall, 16 I&N Dec. 
142, 144-145 (Acting Reg'l Comm'r 1977). The information provided by the petitioner on appeal and 
in response to our Notice of Intent to Dismiss (NOID), reflects that the petitioner paid partial wages to 
the beneficiaries of the other Form I-140 immigrant petitions and that the total wages owed to all 
sponsored beneficiaries was approximately $2.6 million in 2011 and $4 million in 2012. 
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 Sonegawa, 12 I&N Dec. at 614-15. 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 
3 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). Joel G. Siegel & Jae K. 
Shim, Dictionary of Accounting Terms 118 (3d ed., Barron's Educ. Series 2000). 
(b)(6)
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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's tax returns reflect that its sales have more than doubled between 
2011 and 2013 to over $18 million, as well as growth in net income and net current assets during a 
similar period. The petitioner paid more than $6 million in wages to its employees in 2012, which is 
more than the total wages owed to all beneficiaries. Therefore, based on a totality of the 
circumstances, from the date the ETA Form 9089 was accepted for processing by the DOL, the 
petitioner has established that it more likely than not had the continuing ability to pay 
the beneficiary 
the proffered wage as of the priority date. 
Upon review of the record, including evidence submitted on appeal and in response to our NOID, we 
have determined, however, that the director did not fully consider whether the beneficiary will be 
employed at the location listed on the labor certification and whether the petitioner will be the 
beneficiary's actual employer. Therefore, we will remand the case to the director for further action. 
Location of Job Opportunity 
Beyond the decision of the director,4 we note that evidence submitted by the petitioner in response to 
our July 3, 2014 NOID raises issues regarding the location in which the beneficiary will be 
employed. The ETA Form 9089 lists the work location for the proffered position as 
The Form I-140 immigrant petition lists the work 
location as _ Our NOID requested 
evidence to clarify this inconsistency and further evidence to establish that the actual work location 
is not a virtual office and that the proffered job exists at the actual work location and not at an offsite 
4 
We may deny an application or petition that fails to comply with the technical requirements of the law even if the 
Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterpris es, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 1), affd , 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOJ, 
381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
location. It is incumbent upon the petitiOner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). A labor certification is only valid for the 
particular job opportunity stated on the application form. 20 C.F.R. § 656.30(c). 
In response to our NOID the petitioner provided an assignment of sublease contract for office space 
at . The contract indicates that the 
location has been subleased to _ since June 5, 2012. A July 
1 7, 2012 letter from states that the petitioner is its parent company and that all of the 
petitioner's companies and subsidiaries are now located at the address. 5 is a 
separate company with its own Federal Employment Identification Number (FEIN). While the letter 
states that is a subsidiary of the petitioner it is unclear why the letter was not provided by the 
etitioner itself. There is no explanation from the petitioner of the nature of its relationship with 
or why the petitioner's 2012 tax return did not list as its subsidiary. Further, there is no 
evidence in the record which identifies "all companies and its subsidiaries" other than the petitioner 
and Finally, while the petitioner's 2013 tax 
return indicates that it is located at the 
ad4ress, the 2013 Form W-2 issued to the beneficiary indicates the petitioner's address as 
The petitioner has failed to provide independent, 
objective evidence which reconciles these inconsistencies. Matter of Ho, 19 I&N Dec. at 591-92. 
Therefore, the petition will be remanded to the director for the consideration of these issues, and any 
other issue the director deems appropriate. The director may request additional evidence from the 
petitioner, if needed, and the petitioner may submit additional evidence within a reasonable time 
period to be set by the director. Upon receipt of all the evidence, the director will review the entire 
record and enter a new decision. 
As always in visa petition proceedings, the burden of proof rests entirely with the petitioner. See 
section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
ORDER: The director's decision dated September 4, 2013 is withdrawn. The petition is remanded 
to the director for further action in accordance with the foregoing and entry of a new 
decision. 
5 The sublease contract reflects that the leased space in the is 3,246 square feet.