dismissed EB-3 Case: Computer Consulting

identieing data deleted to 
prevent clearly unwmted 
invasion of personal privm 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Petition: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1 1 53(b)(3) 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center ("director"), denied the immigrant visa petition. The 
petitioner appealed and the matter is now before the Administrative Appeals Office ("AAO"). The appeal 
will be dismissed. 
The petitioner operates a computer consulting business, and seeks to employ the beneficiary permanently in 
the United States as a programmer analyst. As required by statute, the petition filed was submitted with Form 
ETA 750, Application for Alien Employment Certification, approved by the Department of Labor ("DOL"). 
As set forth in the director's March 2, 2006 decision, the case was denied based on the petitioner's failure to 
demonstrate its ability to pay the proffered wage from the priority date until the beneficiary obtains permanent 
residence. 
The AAO takes a de novo look at issues raised in the denial of this petition. See 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 AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal.' 
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. 
The petitioner has filed to obtain permanent residence and classify the beneficiary as a professional worker. The 
regulation at 8 C.F.R. 5 204.5(1)(2), and Section 203(b)(3)(A)(i) of the Immigration and Nationality Act ("the 
Act"), 8 U.S.C. 5 1153(b)(3)(A)(i), provides that a third preference category professional is a "qualified alien 
who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member 
of the professions." 
The petitioner must establish that its ETA 750 job offer to the beneficiary is a realistic one. A petitioner's filing 
of an ETA 750 labor certification application establishes a priority date for any immigrant petition later filed 
based on the approved ETA 750. The priority date is the date that Form ETA 750 Application for Alien 
Employment Certification was accepted for processing by any office within the employment service system 
of the Department of Labor. See 8 C.F.R. 5 204.5(d). Therefore, 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 lawfwl 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). 
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 
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. 5 103.2(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). 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the case at hand, the petitioner filed Form ETA 750 with the relevant state workforce agency on April 27, 
2001. The proffered wage as stated on Form ETA 750 is $60,000.00 per year, based on 40 hour work week. 
The labor certification was approved on April 14, 2005, and the petitioner filed the 1-140 Petition on the 
beneficiary's behalf on June 29, 2005. On the 1-140, the petitioner listed the following information: date 
established: August 2, 1986; gross annual income: see attached; net annual income: see attached; current 
number of employees: three. 
On August 29, 2005, the director issued a Request for Additional Evidence ("RFE") for the petitioner to 
submit: proof that the beneficiary complied with National Security Entry-Exit Registration System 
("NSEERS") registration;2 and to submit additional evidence related to the petitioner's ability to pay the 
proffered wage, including evidence beyond the petitioner's federal tax returns, and copies of any and all 
paystubs issued to the beneficiary in 2005. The petitioner responded.3 Following consideration of the 
petitioner's response, on March 2, 2006, the director denied the petition as the petitioner failed to demonstrate 
that it could pay the proffered wage from the priority date until the beneficiary obtains lawful permanent 
residence, as well as for failure to pay the proffered wage listed on Form ETA 750A. The petitioner appealed, 
and the matter is now before the AAO. 
NSEERS was established September 11, 2002 to monitor individuals entering and leaving the U.S. 
NSEERS required nonimmigrants from Iran, Iraq, Libya, Sudan, and Syria as designated by the Federal 
Register to comply with NSEERS registration at ports of entry, as well as nonimmigrants designated by the 
U.S. Department of State, and any other nonimmigrant regardless of nationality, identified by an immigration 
officer in accordance with 8 CFR 5 264.1(0(2). The NSEERS requirement was expanded to include other 
groups of nationals, and nationals from the designated groups were to report for Special Registration in four 
separate "call-in groups." Lebanon, the beneficiary's country of origin, was listed for call-in registration 
between January 27 and February, 7,2003. See 68 Fed. Reg. 2366 (January 16,2003). Group 2 additionally 
included: citizens or nationals of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, 
Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. Id. at 2366. Group 3 included citizens or 
nationals of Pakistan or Saudi Arabia. See 68 Fed. Reg. 33 (February 19,2003). Group 4 expanded NSEERS 
and Special Registration to include citizens or nationals of Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. 
Id. at 33. On December 2,2003, the Department of Homeland Security ("DHS") suspended the automatic 30- 
day and annual re-registration requirements for NSEERS. See http:llwww.ice.~ov/pi/ 
specialregisration/index.htm, accessed April 5, 2007. 
3 
 The petitioner asserts in response to the NSEERS issue that the beneficiary entered the U.S. without 
inspection in 1999, and is eligible for 245(i) adjustment. As the beneficiary entered without inspection, 
counsel contends that the beneficiary is not a "nonimmigrant," and would not be subject to registration. 
Further, counsel provides that the registration requirements were discontinued, and the beneficiary's 
registration, or lack thereof, would not be relevant to the 1-140's approval. Counsel 
7016.22104, Memorandum for William R. Yates, Associate Director for Operations from 
Chief Counsel, Legal Opinion: Effect of failure to comply with NSEERS requirements, or other evidence of 
inadmissibility or deportability, on the adjudication of visa petitions, dated October 14, 2004, which provides 
that "an alien's willful and unexcused failure to comply with NSEERS, or any other ground of inadmissibility 
or deportability would not justifL the denial of a visa petition filed on the alien's behalf." 
Page 4 
We will examine the petitioner's ability to pay based on information in the record and then consider the 
petitioner's additional arguments on appeal. First, in determining the petitioner's ability to pay the proffered 
wage during a given period, Citizenship & Immigration Services ("CIS") will 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 case at hand, the 
petitioner provided the following evidence of payment to the beneficiary: 
Year 1099 Income 
2004 $34,000 
2003 $22,000 
2002 $18,100 
The petitioner also provided paystubs dated September 30, 2005, October 31, 2005, November 30, 2005, 
December 3 1, 2005, January 3 1, 2006, and February 28, 2006 all in the amount of $5,000.' The paystubs 
reflect payment for 160 hours of work, so that the petitioner appears to pay the beneficiary on a monthly 
basis. The Forms 1099 and paystubs alone would be insufficient to establish the petitioner's ability to pay the 
proffered wage from the priority date of April 2001 until the beneficiary obtains permanent residence. The 
petitioner must demonstrate that it can pay the full proffered wage in 2001, and that it can pay the difference 
between the wages paid and the proffered wage in 2002,2003,2004, and 2005. 
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. 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), afd, 703 F.2d 571 (7th Cir. 1983). 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 specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. 
The record demonstrates that the petitioner is an S corporation. Where an S corporation's income is exclusively 
from a trade or business, CIS considers net income to be the figure for ordinary income, shown on line 21 of 
page one of the petitioner's Form 1 120s. The instructions on the Form 1 120S, U.S. Income Tax Return for an 
S Corporation, state on page one, "Caution, include only trade or business income and expenses on lines la 
through 21 ." Where an S corporation has income from sources other than from a trade or business, net 
income is found on Schedule K. The Schedule K form related to the Form 1120 states that an S corporation's 
total income from its various sources are to be shown not on page one of the Form 1120S, but on lines 1 
through 6 of the Schedule K, Shareholders' Shares of Income, Credits, Deductions, etc. See Internal Revenue 
Service, Instructions for Form 1 120S, 2003, at http://www.irsgov/pub/irs-03li 1 120s.pdf, Instructions for Form 
1 120S, 2002, at http://www.irs.gov/pub/irs-02/i 1 120s.pdf, (accessed February 15, 2005). The petitioner lists 
only income from its business and so its net income is found on line 21 : 
The petitioner additionally provided a copy of the beneficiary's bank statement, which reflected a deposit 
in the amount of $3472.95, the amount paid to the beneficiary after applicable taxes were taken out of his pay. 
Page 5 
Tax year 
 Net income or (loss) 
2004 $1 1,869 
2003 $6,844 
2002 $18,860 
2001 $12,805 
The petitioner's net income would not allow for payment of the beneficiary's proffered wage in any of the 
above years, even if the wages paid to the beneficiary were added to the petitioner's net income. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets 
and current liabilities. Current assets include cash on hand, inventories, and receivables expected to be 
converted to cash within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. 
Its current liabilities are shown on lines 16 through 18 on the Forms 1120s. If a corporation's 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, and evidences the petitioner's ability to pay. The net current assets would 
be converted to cash as the proffered wage becomes due. 
Tax year Net current assets 
2004 $4,640 
2003 $5,259 
2002 $19,202 
200 1 $6,99 1 
Following this analysis, the petitioner's federal tax returns show that the petitioner similarly lacks the ability 
to pay the proffered wage in any of the above years based on net current assets as well, even if the wages paid 
to the beneficiary were added to the petitioner's net current assets. 
On appeal, counsel asserts that the petitioner can pay the proffered wage and provides that the beneficiary is 
currently being paid the proffered wage, and this would be sufficient to show the petitioner's ability to pay.5 
Counsel cites the specific language used in the RFE: "the petitioner may still be able to show that it can meet 
this requirement [ability to pay] if it is currently paying the alien at least the proffered wage. Therefore, the 
petitioner is requested to submit copies of all pay vouchers issued by it to the alien beneficiary thus far in 
2005." Counsel contends that as the petitioner is presently paying the beneficiary the proffered wage, that 
this, in accordance with the RFE language, shows that the petitioner has the ability to pay the proffered wage. 
Counsel further cites to the May 4, 2004 William R. Yates, Associate Director for Operations, Determination 
of Ability to Pay under 8 CFR 204.5(g)(2), Memo (May 4 Yates Memo) in support of this premise. The May 
4 Yates Memo provides that CIS should examine the petitioner's: (I) net income; (2) net current assets; or (3) 
the petitioner's employment of the beneficiary. 
Counsel additionally provides that the beneficiary was only recently granted authorization to work in the 
U.S. The relevance of this is unclear as we note that the petitioner submitted Forms 1099 reflecting that the 
beneficiary has been paid from the year 2002 onward. Further, the petitioner provides that the beneficiary is 
"245(i) eligible." See 8 C.F.R. fj 245.1 0, which allows for adjustment of status for certain grandfathered aliens 
who meet specified conditions, upon payment of an additional fee. 
Page 6 
Counsel again contends that the petitioner is now employing the beneficiary and, therefore, can demonstrate 
its ability to pay. Although the petitioner may now be employing and paying the beneficiary the proffered 
wage, the May 4 Yates Memo does not negate the petitioner's regulatory requirement to show that it can pay 
the beneficiary the proffered wage from the priority date of April 2001 to the time that the beneficiary obtains 
permanent residence. See 8 C.F.R. 5 204.5(g)(2). The petitioner has provided checks from only a few 
months in 2005 and 2006, not since April 2001. Further, with respect to the RFE language, in reviewing the 
petitioner's net income, and net current assets, as well as the wages paid to the beneficiary in combination 
with the petitioner's net income, the petitioner was not able to demonstrate its ability to pay the beneficiary 
the proffered wage. Therefore, the director sought additional evidence related to the petitioner's ability to pay 
and requested any paystubs as proof of payment. Whether the petitioner was presently paying the beneficiary 
would be an element taken into consideration in determining the petitioner's ability to pay, in combination 
with the petitioner's net income and net current assets. However, a review of the three years from the year 
2001 onward would not demonstrate the petitioner's ability to pay the proffered wage. 
Counsel provides that the CIS decision states "that the only way a petitioner can establish its ability to pay if 
its relying on the third prong cited above is if the petitioner was paying the beneficiary the proffered wage 
prior to the filing of the 1-140 petition." Further, counsel argues that "this interpretation does not take into 
consideration the thousands of applicants for adjustment of status which are based on section 245(i) of the 
Immigration & Nationality Act where the beneficiary's [sic] of the 1-140 petitions do not have authorization 
to be employed." 
Counsel misinterprets the director's decision. 
 The director's decision should not be interpreted that a 
petitioner can only demonstrate its ability to pay the proffered wage through proof of prior employment from 
the priority date. As set forth in the Yates Memo, proof that the petitioner has paid the beneficiary the 
proffered wage is one way to demonstrate the petitioner's ability to pay. Further, as noted in the RFE, the 
director considered, and CIS will consider, the petitioner's net income or net current assets, separately and/or 
in combination with wages paid to the beneficiary to determine whether the petitioner has the ability to pay 
the proffered wage. 
On appeal, the petitioner resubmitted paystubs for the same dates as listed above showing payment in the 
amount of $5,000 per month, which have already been considered. 
The petitioner additionally submitted a letter from the petitioner's accountant, dated March 30, 2006, which 
provided: 
We have been requested to write to you regarding our relationship with [the petitioner] and 
. . 1n the past the companies have loaned funds to each other as needed since 
certain contracts would span several months and in the initial phase some of the contracts 
cash flow would be delayed. At other times funds were loaned tosince [the 
petitioner] was in an excess cash position and this was more cost effective than using a credit 
line. 
Attached to the accountant's letter was a letter verifLing that 
 had an account in good standing 
since January 12,2006, with a bank balance of $14,888.77. 
The relationship, if any, of 
 to the petitioner is unclear. Further, 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. 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. 5 204.5, permits [CIS] to consider the financial 
 individuals or entities who 
have no legal obligation to pay the wage." Therefore, the 
 a corporation separate and 
apart from the petitioner, cannot be used to demonstrate the 
 the proffered wage. 
The petitioner additionally submitted a letter from the petitioner's bank. 
 The letter, dated March 24, 2006, 
reflected that the petitioner had a business account with the bank since May 5, 1999, and had a current 
balance of $22,844.98. First, we note that bank statements, or bank account information, are not among the 
three types of evidence listed in 8 C.F.R. 5 204.5(g)(2) as required to establish a petitioner's ability to pay a 
proffered wage. This regulation allows for consideration of additional material such as bank accounts "in 
appropriate cases." As the petitioner has not established that the bank balances represent funds in addition to 
cash assets listed on Schedule L, already considered in calculating the petitioner's net current assets, the bank 
letter would not demonstrate the petitioner's ability to pay the proffered wage. Further, as a fundamental point, 
the petitioner's tax returns are a better reflection of the company's financial picture, since tax returns address the 
question of liabilities. Bank statements do not reflect whether the petitioner has any outstanding liabilities. The 
bank letter would reflect the amount that the petitioner had in its account as of March 24, 2006, and would not 
demonstrate the petitioner's ability to pay from April 200 1 to the present. 
The petitioner additionally submitted an unaudited profit and loss statement for the time period March 1,2005 
to March 30, 2006, as well as an unaudited profit and loss statement for the time period January 1 to 
December 12, 2005. The profit and loss statement for the time period January 1 through December 12, 2005 
lists that the petitioner had net income in the amount of $29,623.71. The profit and loss statement for March 
1, 2005 through March 30, 2006 lists the petitioner's net income as $229,141.52. We note that the March 
2005 to March 2006 statement is abbreviated and is less extensive than the January to December 2005 
statement. Additionally, the time period of the two statements overlap. The reason for this is unclear. 
Further, the regulation at 8 C.F.R. 5 204.5(g)(2) makes clear that where a petitioner relies on financial 
statements to demonstrate its ability to pay the proffered wage, those financial statements must be audited. 
An audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable 
assurance that the financial statements of the business are free of material misstatements. The unaudited 
financial statements submitted with the petition are not persuasive evidence. The unsupported representations 
of management are not reliable evidence and are insufficient to demonstrate the ability to pay the proffered 
wage. 
Further, we note that records reflect the petitioner has sponsored a second individual for permanent residence. 
The petitioner would need to demonstrate that it could pay the proffered wage for both beneficiaries. As the 
petitioner has not demonstrated its ability to pay the proffered wage for the instant beneficiary, it would be 
unable to demonstrate its ability to pay for both. 
Accordingly, based on the foregoing, the petitioner has failed to document that it can pay the beneficiary the 
proffered wage from the priority date until the beneficiary obtains permanent residence, and the petition was 
properly denied. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.