sustained EB-2 Case: Software Engineering

prevent ckky mmmanted 
invasion oigaseaal privacy 
U.S. Department of Ilomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: NEBRASKA SERVICE CENTER Date: 2008 
LIN 07 038 51856 
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. ?j 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 must be made to that office. 
U 
obert P. Wiemann, Chief 
2dministratire Appeals Office 
Page 2 
DISCUSSION: The preference 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 sustained 
and the petition will be approved. 
The petitioner is a software design and development company. It seeks to employ the beneficiary 
permanently in the United States as a lead software engineer pursuant to section 203(b)(2) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(2). 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. As required by 
statute, the petition was accompanied by certification from the Department of Labor. The director 
determined that the petitioner had not established that that the beneficiary had the necessary five 
years of progressive experience, that the job required a member of the professions holding an 
advanced degree or that the petitioner had the continuing ability to pay the beneficiary the proffered 
wage beginning on the priority date of the visa petition. Thus, the director denied the petition 
accordingly without issuing a request for additional evidence. As the petitioner was not previously 
requested to submit specific evidence, we will consider all new evidence on appeal. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, while 
the director's concerns were valid at the time the decision was issued and some of counsel's 
assertions are not persuasive, the new evidence submitted on appeal overcomes all of the director's 
concerns. In reaching this conclusion, we will first examine whether or not the beneficiary is even 
eligible for the classification sought. We will next examine whether the job certified by the 
Department of Labor (DOL) requires a member of the profession holding an advanced degree. 
Finally, we will examine whether the petitioner has now demonstrated its ability to pay the proffered 
wage. 
The Beneficiary's Eligibility for the Classification Sought 
Section 203(b) of the Act states in pertinent part that: 
(2) 
 Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -- 
(A) In general. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 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, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
The regulation at 8 C.F.R. 5 204.5(k)(2) defines an advanced degree as follows: 
[Alny United States academic or professional degree or a foreign equivalent degree 
above that of baccalaureate. A United States baccalaureate 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 degree or a foreign equivalent 
degree. 
The beneficiary earned a four-year Bachelor of Engineering from Bangalore University in August 
1997. The petitioner submitted an evaluation of the beneficiary's education equating it with a U.S. 
baccalaureate. The director did not contest that the beneficiary's four-year Bachelor of Engineering 
is a foreign equivalent degree to a U.S. baccalaureate and we are satisfied that it is. Rather, the 
director determined that the petitioner had not submitted the required initial evidence to demonstrate 
the beneficiary's five years of post-baccalaureate experience. 
The regulation at 8 C.F.R. tj 204.5(g)(l) provides, in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) 
from current or former employer(s) or trainer(s) and shall include the name, address, 
and title of the writer, and a specific description of the duties performed by the alien 
or of the training received. If such evidence is unavailable, other documentation 
relating to the alien's experience or training will be considered. 
(Emphasis added.) 
Initially, the petitioner submitted a letter from 
 Controller at NDS Systems, LC, 
asserting that the beneficiary worked for that company as a program analyst from March 2003 
through March 2006. The petitioner also submitted two affidavits from former employees at Ace 
Technologies, Inc., asserting that the beneficiary worked there as a program analyst from November 
1999 through February 2003. It is not clear from either affidavit that the affiants remained at Ace 
Technologies through February 2003 such that they have first hand knowledge of the beneficiary's 
continued employment there. In support of these affidavits, the petitioner submitted an employment 
contract between the beneficiary and Ace Technologies dated November 25, 1998 and some pay 
statements issued by Ace Technologies to the beneficiary in 2000,2001,2002 and 2003. Finally, the 
petitioner submitted the beneficiary's 2001 Form W-2 Wage and Tax Statement issued by Ace 
Technologies. 
The director concluded that the evidence submitted to establish the beneficiary's more than three 
years of employment with Ace Technologies was not the type of evidence specified at 8 C.F.R. 
fj 204.5(g)(l) and that the letter fromdid not provide the beneficiary's exact dates of 
employment. 
On appeal, counsel correctly notes that 
I 
letter establishes at least two years and ten 
months of employment. 
 Counsel then asse s 
 length that the affidavits and supporting 
documentation should have been considered sufficient to establish the beneficiary's employment 
with Ace Technologies. 
 Counsel is not persuasive. 
 The regulation at 8 C.F.R. fj 204.5(g)(l) 
provides that evidence of experience "shall" be in the form of letters from employers (not former 
Page 4 
coworkers) and only permits the consideration of other evidence of experience if letters from 
employers are unavailable. The petitioner has never demonstrated that a letter from Ace 
~eihnolo~ies was unavailable. Thus, the director was no 
 ther evidence. On 
appeal, however, the petitioner submits a letter from 
 Manager at Ace 
Technologies, confirming that the beneficiary worked for that company fiom November 18, 1999 
through February 28, 2003. As the director did not issue a re uest for additional evidence in this 
case, we will consider this new evidence on appeal. As 4s letter conforms with the 
requirements of 8 C.F.R. 5 204.5(g)(l), the petitioner has now established that the beneficiary has 
the required five years of progressive post-baccalaureate experience. 
In light of the above, the beneficiary clearly qualifies as a member of the professions holding an 
advanced degree. The next question is whether the job requires a member of the professions holding 
an advanced degree. 
The regulation at 8 C.F.R. 5 204.5(k)(4) provides the following: 
(i) General. 
 Every petition under this classification must be accompanied by an 
individual labor certification fiom the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor's Labor Market 
Information Pilot Program. To apply for Schedule A designation or to establish that the 
alien's occupation is within the Labor Market Information Program, a hlly executed 
uncertified Form ETA-750 in duplicate must accompany the petition. The job offer 
portion of the 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 or an alien of exceptional ability. 
(Bold emphasis added.) 
The key to determining the job qualifications is found on ETA Form 9089 Part H. 
 This section of 
the application for alien labor certification, "Job Opportunity Information," describes the terms and 
conditions of the job offered. As noted by counsel on appeal, it is important that the ETA Form 
9089 be read as a whole. 
Moreover, Citizenship and Immigration Services (CIS) 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, 696 F.2d at 1008; K.R.K. 
Irvine, Inc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 
F.2d 1 (1st Cir. 1981). CIS must examine "the language of the labor certification job requirements" 
in order to determine what the job requires. See generally Madany, 696 F.2d at 1015. The only 
rational manner by which CIS can be expected to interpret the meaning of terms used to describe the 
requirements of a job in a labor certification is to "examine the certified job offer exactly as it is 
completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829, 833 (D.D.C. 1984)(emphasis added). CIS'S interpretation of the job's requirements, as stated 
on the labor certification must involve "reading and applying the plain language of the [labor 
certification application form]." Id. at 834 (emphasis added). CIS cannot and should not reasonably 
be expected to look beyond the plain language of the labor certification that DOL has formally 
issued or otherwise attempt to divine the employer's intentions through some sort of reverse 
engineering of the labor certification. 
In this matter, Part H, line 4, of the labor certification reflects that a bachelor's degree is the 
minimum level of education required. Line 6 reflects that 12 months of experience in the job offered 
are required. Line 8 reflects that a combination of education or experience is acceptable in the 
alternative. Specifically, lines 8-A through 8-C reflect that a Master's degree plus no years of 
experience is acceptable in the alternative. Line 9 reflects that a foreign educational equivalent is 
acceptable and Line 10 reflects that experience in an alternate occupation is not acceptable. 
While these terms on their face are insufficient given that the minimum expressed in Part H is a 
bachelor's degree plus one year of experience, the petitioner elaborates and clarifies this part in an 
addendum to Part H, Line 14. The addendum provides: 
ELABORATION OF LINE H-4, H-6, H-6A, H-8, H-8A AND H-8C: 
Applicants need to have a B.S.1B.A. (Or Foreign Equiv.) in Computer Science / 
Related Field / Math / Engineering / Business Administration / Related Field / 
Accounting / Finance or Science and 5 years of progressive post Baccalaureate 
experience including as specified in Line H-6A, at least 12 months of experience in 
Job Offered, or alternately, a Master's (Or Foreign Equiv.) in any of the above 
specified majors and 3 years experience including at least 9 months experience in Job 
Offered. 
While the ETA Form 9089 does not appear to require such a convoluted addendum to express the 
petitioner's job requirements, we are persuaded that, given all the language used, the most 
reasonable interpretation of the alien employment certification is that the job requires, at a minimum, 
a baccalaureate plus five years of progressive post baccalaureate experience. We note that the 
director did not contest that the job required five years of experience. Rather, the director was 
concerned with the next addendum, which provides: 
Employer determines foreign educational equivalence on basis of a program's credit 
(contact) hours rather than the length of time taken to complete the program. 
Employer seeks assistance of independent credential evaluation agencies such as 
Career Consulting International, etc. to determine foreign equivalence. Employer 
does not require single source degrees, but accepts combination of degrees/diplomas 
for the purpose of equivalence to Bachelor's or Master's degrees. 
The director concluded that this language revealed that the job did not require a baccalaureate or 
foreign equivalent degree based on the following analysis: 
Page 6 
[CIS] maintains that an equivalent foreign degree is a degree awarded by an 
institution outside the U.S. for a course that is similar in complexity and length to a 
course of study for which an institution in the U.S. would grant a bachelor's degree. 
This does not include experience gained through employment, nor does it include 
coursework that does not lead to an actual degree or a series of diplomas or 
certificates. 
On appeal, counsel submits notes from an April 12,2007 meeting between the service center and the 
American Immigration Lawyers Association (AILA) indicating that the service center acknowledged 
that a three-year baccalaureate plus a two-year Master's degree may be deemed equivalent to a U.S. 
baccalaureate. Thus, counsel asserts that CIS does not require a single source degree. 
The comments made by service center employees during outreach meetings are not binding on the 
AAO. The AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center had approved an identical immigrant 
petition, the AAO would not be bound to follow the contradictory decision of a service center. 
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 at *3 (E.D. La.), afd, 248 F.3d 1139 
(5th Cir. 2001), cert. denied, 534 U.S. 819 (2001). 
Ultimately, the AAO is bound by the Act, agency regulations, precedent decisions of the agency and 
published decisions from the circuit court of appeals from whatever circuit that the action arose. See 
N.L.R.B. v. Ashkenazy Property Management Corp., 817 F.2d 74, 75 (9th Cir. 1987)(administrative 
agencies are not free to refuse to follow precedent in cases originating within the circuit); R.L. Inv. 
Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 2000), aff'd 273 F.3d 874 (9th Cir. 
2001)(unpublished agency decisions and agency legal memoranda are not binding under the APA, 
even when they are published in private publications or widely circulated). Even CIS internal 
memoranda do not establish judicially enforceable rights. See Lou-Herrera v. Trominski, 231 F.3d 
984, 989 (5th Cir. 2000)(An agency's internal guidelines "neither confer upon [plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely.") 
While the addendum language raises some concern, overall we are persuaded that the job requires a 
member of the professions holding an advanced degree. We note that the addendum does not permit 
the consideration of experience in lieu of education. Had the beneficiary in this matter not possessed 
a foreign equivalent degree to a U.S. baccalaureate, the petitioner's assertions that it intended to 
require such a degree would be far less credible. As discussed above, however, the beneficiary in 
this matter does possess a foreign equivalent degree. 
We emphasize, however, that our finding in this matter is in no way intended to suggest that a 
petitioner could rely on similar language to classify an otherwise ineligible alien under section 
203(b)(2) of the Act. Specifically, while the petitioner may choose to rely on a specific evaluator in 
considering whether an alien is eligible for the position, CIS is not bound by that evaluation in 
considering whether the alien is eligible for a specific classification. See Matter of Caron 
International, 19 I&N Dec. 791, 795 (Commr. 1988). CIS is ultimately responsible for making the 
final determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
letters from experts supporting the petition is not presumptive evidence of eligibility; CIS may 
evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795. 
CIS may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. Id. at 795; See also Matter of Soffici, 22 I&N Dec. 158, 
165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Commr. 
1972)). 
For the reasons stated above, we are satisfied that in this particular case, the petitioner's expressed 
intent to consider evaluations in evaluating whether a prospective employee has the necessary 
education is not per se evidence that the petitioner intended to accept education that was less than a 
foreign equivalent degree to a U.S. baccalaureate. 
Ability to Pay the Proffered Wage 
The regulation at 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. 
(Bold emphasis added.) 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date, the day the ETA Form 9089 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. 5 204.5(d). Here, the ETA Form 
9089 was accepted for processing on March 28, 2006. The proffered wage as stated on the ETA 
Form 9089 is $91,000 annually. On the ETA Form 9089, Part J, signed by the beneficiary, the 
beneficiary claimed to have worked for the petitioner as of March 22,2006. 
On the petition, the petitioner claimed to have an establishment date in 1998, a gross annual income 
of $3,300,000, a "viable" net income and 40 employees. In support of the petition, the petitioner 
submitted evidence that as of September 22, 2006, the petitioner had paid the beneficiary $27,460.88 
in year to date wages. The petitioner also submitted its 2005 Internal Revenue Service (IRS) Form 
1120S, U.S. Income Tax Return for an S Corporation. Finally, the petitioner submitted copies of the 
petitioner's checking account statements for January through September 2006 and several months in 
2005. 
The director determined that the evidence submitted did not establish that the petitioner had the 
continuing ability to pay the proffered wage beginning on the priority date, and denied the petition. 
In addition to expressing concerns that the petitioner did not demonstrate sufficient net income or net 
current assets on its 2005 tax return, the director also stated that the petitioner "has filed numerous 
additional 1-140 immigrant petitions. A petitioner must establish the ability to pay in all immigrant 
petitions." 
On appeal, the petitioner submits its 2006 tax return, which reflects the following information: 
Net income ($53,05 1) 
Current Assets $1 12,539 
Current Liabilities $8,436 
Net current assets $104,103 
The petitioner also submits the beneficiary's 2006 Form W-2 reflecting that the petitioner paid the 
beneficiary $40,322.43 during that year. Finally, the petitioner submits the beneficiary's pay stubs 
for 2007 reflecting that as of December 24, 2007, the petitioner had paid the beneficiary $93,449.19 
in year to date wages. 
Where the petitioner has submitted the requisite initial documentation required in the regulation at 
8 C.F.R. 5 204.5(g)(2), Citizenship and Immigration Services (CIS) will first examine whether the 
petitioner employed and paid the beneficiary during the relevant 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 did not establish that it employed and paid the 
beneficiary the full proffered wage in 2006, although the petitioner did pay the beneficiary more than 
the prorated prevailing wage for the portion of 2006 that follows the priority date.' The difference 
between the proffered wage and the wages in paid in 2006 is $50,677.57. 
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, CIS will next examine the net income figure reflected on 
the petitioner's federal income tax return, without consideration of depreciation or other expenses. 
Federal courts have recognized the reliance on federal income tax returns as a valid basis for 
determining a petitioner's ability to pay the proffered wage. See Elatos Restaurant Corp. v. Sava, 
632 F. Supp. 1049, 1054 (S.D.N.Y. 1986). See also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 
532, 536 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080, 1083 (S.D.N.Y. 
1985); Ubeda v. Palmer, 539 F. Supp. 647, 650 (N.D. Ill. 1982), afd, 703 F.2d 571 (7th Cir. 1983). 
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 CIS, 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 
I 
 While we will not consider payment of wages or net income over a 12-month period as evidence of an 
ability to pay the proffered wage during a lesser period, all of the wages paid to the beneficiary in 2006 were 
paid after the priority date. 
specifically rejected the argument that the Service should have considered income before expenses 
were paid rather than net income. 
Nevertheless, the petitioner's net income is not the only statistic that can be used to demonstrate a 
petitioner's ability to pay a proffered wage. 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, CIS will review the petitioner's assets. 
We reject, however, any argument that the petitioner's total assets should be considered in the 
determination of the ability to pay the proffered wage. The petitioner's total assets include 
depreciable assets that the petitioner uses in its business. Those depreciable assets will not be 
converted to cash during the ordinary course of business and will not, therefore, become funds 
available to pay the proffered wage. Further, the petitioner's total assets must be balanced by the 
petitioner's liabilities. Otherwise, they cannot properly be considered in the determination of the 
petitioner's ability to pay the proffered wage. Rather, CIS will consider net current assets as an 
alternative method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilities.* A 
corporation's year-end current assets are shown on Schedule L, lines l(d) through 6(d). Its year-end 
current liabilities are shown on lines 16(d) through 18(d). If a corporation's end-of-year net current 
assets are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage out of those net current assets. 
The petitioner paid the beneficiary more than the proffered wage in 2007. 
 The petitioner has 
demonstrated that it paid $40,322.43 in wages to the beneficiary during 2006. In 2006, the petitioner 
shows net current assets of $104,103 and has, therefore, demonstrated the ability to pay the 
difference between the wage paid and the proffered wage out of its net current assets. 
As noted by the director, the petitioner has filed additional Fonn 1-140 petitions for other 
beneficiaries in 2006 and 2007. Our review of CIS electronic records reveals 11 such petitions, three 
of which are pending, seven of which were approved and one of which was withdrawn. We concur 
with the director that the petitioner must demonstrate its ability to pay the beneficiaries of all of the 
petitions it has filed. Moreover, the ability to pay a beneficiary is relevant to the adjudication of 
petitions for other beneficiaries. To hold otherwise would allow an employer to use the same net 
income or net current assets to demonstrate its ability to pay more than one beneficiary. In this 
matter, however, the petitioner has demonstrated its ability to pay the proffered wage mostly through 
evidence of wages actually paid. The petitioner need only rely on a small portion of its net current 
assets in 2006 to demonstrate its ability to pay the proffered wage in that year. Thus, we are not 
concerned that the petitioner is relying on funds already used to demonstrate an ability to pay other 
beneficiaries. 
According to Barron 's Dictionary of Accounting Term 117 (3'* 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 as accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
The petitioner submitted evidence sufficient to demonstrate that it had the ability to pay the 
proffered wage during the salient portion of 2006 and subsequently. Therefore, the petitioner has 
established that it had the continuing ability to pay the proffered wage beginning on the priority date. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. tj 136 1. The petitioner has sustained that burden. 
ORDER: 
 The decision of the director is withdrawn. The appeal is sustained and the petition is 
approved.