remanded EB-2 Case: Software Development

identifflng data WYW W, 
prevent desrty onw- 
invasion of Dersooal pm 
mLIC COPY 
U.S. 
20 M 
W as1 
FILE: - Office: VERMONT SERVICE CENTEI 
EAC 02 2 1 1 50473 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professi 
Degree or an Alien of Exceptional Ability Pursuant to Section 20 
and Nationality Act, 8 U.S.C. 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All docun 
th cided your case. Any further inquiry must be made to 
[ Robert P. Wiernann, Director 
Administrative Appeals Office 
WWW.' 
:partment of Homeland Security 
,s. Ave., N.W., Rm. A3042. 
Igton, DC 20529 
Citizenship 
Immigration 
rices 
Date: JUL 1 8 m5 
ns Holding an Advanced 
:b)(2) of the Immigration 
nts have been returned to 
hat office. 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Verr 
now before the Administrative Appeals Office (AAO) on appeal. The deci: 
withdrawn and the petition will be remanded for further action and consideration. 
The petitioner is a provider of contract software developers. It seeks to employ the b 
United States as a systems analyst pursuant to section 203(b)(2) of the Immigration 2 
8 U.S.C. 1153(b)(2). In pertinent part, section 203(b)(2) of the Act provides 
members of the professions holding advanced degrees or their equivalent and who 
employer in the United States. As required by statute, the petition was accompan 
Department of Labor. The director determined that the petitioner had not 
continuing ability to pay the beneficiary the proffered wage beginning on the pric 
and denied the petition accordingly. 
On appeal, counsel submits a brief and additional evidence. 
The regulation at 8 C.F.R. $ 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or 
based immigrant which requires an offer of employment must be accon 
that the prospective United States employer has the ability to pay the p 
petitioner must demonstrate this ability at the time the priority date 
continuing until the beneficiary obtains lawful permanent residence. Evi 
shall be in the form of copies of annual reports, federal tax returns, 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wal 
date, the day the Form ETA 750 was accepted for processing by any office withi 
the Department of Labor. See 8 C.F.R. $ 204.5(d). Here, the Form ETA 750 wa 
September 10, 2001. The proffered wage as stated on the Form ETA 750 is $83 
ETA 750B, signed by the beneficiary, the beneficiary claimed to have worked 
1997. 
On the petition, the petitioner claimed to have been established in 1995, to ha\ 
$507,954, net annual income of $23,785 and to currently employ 10 workers. 11 
petitioner submitted its unsigned 2001 corporate tax return reflecting taxable i 
wage. 
Because the director deemed the evidence submitted insufficient to demonstratc 
ability to pay the proffered wage beginning on the priority date, on September 4, 
additional evidence pertinent to that ability. In accordance with 8 C.F.R. 
specifically requested that the petitioner provide copies of annual reports, fed 
financial statements to demonstrate its continuing ability to pay the proffered wa 
date. 
In response, the petitioner submitted its corporate tax return for the petitioner foi 
net loss. In addition, counsel submitted Forms W-2, Wage and Tax  statement^ 
beneficiary in 2001 and 2002. The Forms W-2 Wage and Tax Statements refle 
$86,672 respectively, more than the proffered wage. 
~nt Service Center, and is 
m of the director will be 
leficiary permanently in the 
d Nationality Act (the Act), 
immigrant classification to 
: services are sought by an 
:d by certification from the 
stablished that it had the 
~ty date of the visa petition 
br an employment- 
anied by evidence 
~ffered wage. The 
IS established and 
ence of this ability 
- audited financial 
beginning on the priority 
the employment system of 
accepted for processing on 
00 annually. On the Form 
a the petitioner as of May 
a gross annual income of 
support of the petition, the 
come below the proffered 
the petitioner's continuing 
003, the director requested 
204.5(g)(2), the director 
-a1 tax returns, or audited 
: beginning on the priority 
.he years 2002 reflecting a 
he petitioner issued to the 
wages of $84,142.92 and 
Page 3 
On appeal, the petitioner asserts that it only employed five employees in 2001 d two employees in 2002. 
The petitioner submits internal payroll records for several employees for 2000. e petitioner also submitted 
internal payroll records for the beneficiary in 2003 reflecting wages of more than the proffered 
wage. Finally, the petitioner submitted the beneficiary's personal tax returns. 
The director determined that the evidence submitted did not establish that the 
ability to pay the proffered wage beginning on the priority date. The director 
the Form W-2 were not credible since the total wages paid by the petitioner, $165,026 
in 2002, could not cover salaries for an additional nine employees after deducting 
beneficiary's Form W-2. 
In determining the petitioner's ability to pay the proffered wage during a Citizenship and 
Immigration Services (CIS) will first examine whether the petitioner empl paid the beneficiary 
during that period. If the petitioner establishes by documentary evidence that d the beneficiary at a 
salary equal to or greater than the proffered wage, the evidence will be cons a facie proof of the 
petitioner's ability to pay the proffered wage. In the instant case, the petitio ed that it employed 
and paid the beneficiary the full proffered wage in 2001 and 2002. While 's statement that it 
only employed five employees in 2001 fails to explain why it listed 10 curr n the petition, it 
remains that the record consistently reflect wages paid to the beneficiary i proffered wage. 
Thus, we need not inquire further into the petitioner's ability to pay the pro 
petitioner had the continuing 
concluded that the amounts on 
in 2001 and $106,673 
the wages reflected on the 
While the petitioner has overcome the director's basis for denial, the director to consider whether the 
beneficiary is an advanced degree professional and whether he is qualified for job. To determine 
whether a beneficiary is eligible for a second preference immigrant visa, and Immigration 
Services (CIS), formerly the Service or INS, must ascertain whether the qualified for the 
classification and the certified job. CIS will not accept a degree degree when a 
labor certification plainly and expressly requires a candidate 
beneficiary's qualifications, CIS must look to the job offer 
required qualifications for the position. CIS may not 
impose additional requirements. See Matter of Silver 
(Comm. 1986). See also, Mandany v. Smith, 696 F.2d 
699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red 
(1st Cir. 1981). 
The regulation at 8 C.F.R. 5 204.5(k)(2) provides, in pertinent part: 
A United States baccalaureate degree or a foreign equivalent degree follo by at least five 
years of progressive experience in the specialty shall be considered the 
degree. 
The regulation at 8 C.F.R. 5 204.5(k)(3)(i) provides: 
To show that the alien is a professional holding an advanced degree, t petition must be 
accompanied by: 
(A) An official academic record showing that the alien has a Uni. 
degree or a foreign equivalent degree; or 
ed States advanced 
The Form ETA-750 indicates that the job requires a "B.S." degree in computer or a related technical 
field or equivalent plus five years of experience. The beneficiary listed a three years of study 
from Instrumentation Engineering in India and a "PG Diploma" study at Datapro 
Information Technology in India. The petitioner submitted an Evaluations & 
Transitions Services concluding that the beneficiary's diploma 
to a three-year program of academic studies in Instrumentation 
University in the United States." The evaluation then 
"is a one semester of academics studies in computer 
the beneficiary's "education and professional 
degree in Instrumentation Engineering & 
States." 
(B) An official academic record showing that the alien ha:; 
The director requested an evaluation of just the beneficiary's education. In respo the petitioner submitted 
a new evaluation from AUAP Credential Evaluation Services. The lists the beneficiary's 
education and experience and concludes that they are equivalent to a 
science from a regionally accredited institution of higher Note 1 of the 
evaluation, however, indicates that the beneficiary's to an 
Associate Degree in Computer Science from a 
United States of America." Note 3 explains that 
evaluator reach the conclusion that the 
a United States 
We will remand the matter for a determination by the director as to eficiary's education meets 
the terms of the labor certification and whether it suffices to qualify the as an advanced degree 
professional. As always in these proceedings, the burden of proof rests Section 291 of 
the Act, 8 U.S.C. 5 1361. 
baccalaureate degree of a foreign equivalent degree, and evi&nce in the form of 
letters from current or former employer(s) showing that the 
years of progressive post-baccalaureate experience in the specialty. 
ORDER: The director's decision is withdrawn. The petition is remanded to 
in accordance with the foregoing and entry of a new decision whick, 
is to be certified to the Administrative Appeals Office for review. 
alien has at least five 
t:ie director for further action 
if adverse to the petitioner,