dismissed EB-3 Case: Computer Consulting

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
IN RE: 
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. 3 11530>)(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. 
-6 Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a computer consulting company. It seeks to employ the beneficiary permanently in the 
United States as a programmer analyst. As required by statute, the petition is accompanied by a Form ETA 
750, Application for Alien 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 December 13, 2004 denial, the single 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)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. 5 1153(b)(3)(A)(ii), also provides for the granting of 
preference classification to qualified immigrants who hold baccalaureate degrees and are members of the 
professions. 
The regulation 8 C.F.R. tj 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 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 Form ETA 750, Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the DOL. See 8 C.F.R. 5 204.5(d). The petitioner 
must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 
750, Application for Alien Employment Certification, as certified by the DOL and submitted with the instant 
petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Cornm. 1977). 
Here, the Form ETA 750 was accepted on November 4, 2003.' The proffered wage as stated on the Form 
ETA 750 is $77,500.00 per year. The Form ETA 750 states that the position requires a bachelor degree or its 
1 
The instant petition is for a substituted beneficiary. An 1-140 petition for a substituted beneficiary retains 
the same priority date as the original ETA 750. Memo. from Luis G. Crocetti, Associate Commissioner, 
equivalent in computer science, engineering or a related field and two years of experience in the job offered or 
in a related field described at Part 15 of the Form ETA 750A. 
The AAO takes a de novo look at issues raised in the denial of this ~etition. 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.2 On appeal, 
counsel submits a brief, the petitioner's IRS 1120S, U.S. Incoine Tax Return for an S Corporation, for 2003, 
the petitioner's bank statements for November and December of 2003, February through May of 2004 and 
July through December of 2004, and the beneficiary's paystubs issued by the petitioner for May through 
August of 2004 and October through December of 2004. The record does not contain any other evidence 
relevant to the petitioner's ability to pay the wage.3 
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 in 2001 and to currently employ 15 workers. 
According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the 
Form ETA 750B, signed by the beneficiary on April 6, 2004, the beneficiary claimed to have worked for the 
petitioner as a senior programmer analyst fiom April 2004 to the date he signed the Form ETA 750B. 
On appeal, counsel asserts that the petitioner did not file its 2003 federal tax return with the 1-140 petition 
because the petitioner's tax return was not yet due at the time it filed the petition. Counsel also asserts that 
since the priority date is November 4, 2003, the petitioner must only demonstrate that it had the ability to pay 
two months of the proffered wage in 2003. Counsel also states that the petitioner's bank statements evidence 
a balance of $76,000.00 in November, 2003. Further, counsel states that the balances in the petitioner's bank 
account exceeded $100,000.00 for each month in 2004 and that the petitioner needs only a balance of 
$6,459.00 each month to pay the proffered wage. Finally, counsel states that the beneficiary has been 
working for the petitioner since April 2004. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an 
ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the 
ETA 750, 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 lawhl 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). 
In determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and 
Immigration Services (CIS) 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 
Immigration and Naturalization Service, to Regional Directors, et al., Substitution of Labor Certification 
BeneJiciaries, at 3, http://ows.doleta.gov/dmstree/fm/fm96/fm28-96a.pdf (March 7, 1996). 
2 
 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. 4 103.2(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). 
3 
 The record contains the petitioner's IRS Form 1120S, U.S. Income Tax Return for an S Corporation, for 
2002. 
 Evidence preceding the priority date in 2003 is not necessarily dispositive of the petitioner's 
continuing ability to pay the proffered wage beginning on the priority date. 
petitioner's ability to pay the proffered wage. In the instant case, the beneficiary's paystubs for 2004 show 
compensation received from the petitioner of $38,594.50. Therefore, for the years 2003 and 2004, the 
petitioner has not established that it employed and paid the beneficiary the full proffered wage, but it did 
establish that it paid partial wages in 2004. Since the proffered wage is $77,500.00 per year, the petitioner 
must establish that it can pay the difference between the wages actually paid to the beneficiary and the 
proffered wage, which is $38,905.50 in 2004.~ 
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. 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). 
The record before the director closed on April 8, 2004. As of that date, the petitioner's 2003 federal income 
tax return was due, but was not provided.5 However, the petitioner provided its 2003 tax return on appeal. 
The petitioner's 2003 tax return stated net income6 of $47,898.00. Therefore, for the year 2003, the petitioner 
did not have sufficient net income to pay the proffered wage of $77,500.00. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, CIS may review the 
petitioner's net current assets. Net current assets are the difference between the petitioner's current assets and 
current liabilities7 A corporation's year-end 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 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 petitioner's 
2003 tax return stated end-of-year net current assets of $16,405.00. Therefore, for the year 2003, the 
petitioner did not have sufficient net current assets to pay the proffered wage of $77,500.00. 
4 
 This office notes that the record does not contain .the petitioner's 2004 federal income tax return. 
Therefore, the petitioner's net income and net current assets may not be analyzed against the difference 
between the wages actually paid to the beneficiary and the proffered wage in 2004. 
5 
 On appeal, counsel states that the petitioner's 2003 federal income tax return was due on April 15, 2004. 
However, an S corporation must file Form 1120s by the 15th day of the 3rd month after the end of its tax year. 
Therefore, since the petitioner is a calendar year filer, the petitioner's 2003 federal income tax return was due 
on March 15,2004. Corporations, I.R.S. Pub. No. 542, at 5 (2006). 
6 
 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 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 additional income or additional credits, 
deductions or other adjustments, net income is found on line 23 of Schedule K. Because the petitioner had 
additional income shown on its Schedule K for 2003, the petitioner's net income is found on line 23 of Schedule 
K of its tax return. 
7 
 According to Barron's Dictionary of Accounting Terms 117 (31d 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). Id. at 118. 
Page 5 
Therefore, from the date the Form ETA 750 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.' 
Counsel asserts in his brief accompanying the appeal that there is another way to determine the petitioner's 
continuing ability to pay the proffered wage from the priority date. Counsel states that the petitioner's bank 
statements evidence the petitioner's ability to pay the proffered wage. Counsel's reliance on the balances in 
the petitioner's bank account is misplaced. First, bank statements are not among the three types of evidence, 
enumerated in 8 C.F.R. 3 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While 
ths regulation allows additional material "in appropriate cases," the petitioner in ths case has not demonstrated 
why the documentation specified at 8 C.F.R. 3 204.5(g)(2) is inapplicable or otherwise paints an inaccurate 
financial picture of the petitioner. Second, bank statements show the amount in an account on a given date, and 
cannot show the sustainable ability to pay a proffered wage. The petitioner's bank statements evidence an 
ending monthly balance of $76,078.1 1 in November, 2003. Therefore, the November, 2003 bank statement 
does not show a balance greater than the annual proffered wage of $77,500.00, nor do the succeeding months 
show monthly increases in balances by at least the amount of the monthly proffered wage.9 Finally, no evidence 
was submitted to demonstrate that the knds reported on the petitioner's 2003 bank statements somehow reflect 
additional available fimds that were not reflected on its tax return, such as the petitioner's taxable income (income 
minus deductions) or the cash specified on Schedule L that was considered in determining the petitioner's net 
current assets. The petitioner's bank statements therefore fail to establish the petitioner's ability to pay the 
proffered wage during the relevant period. 
Further, counsel requests that CIS prorate the proffered wage for the portion of the year that occurred after the 
priority date. We will not, however, consider 12 months of income towards an ability to pay a lesser period 
of the proffered wage any more than we would consider 24 months of income towards paying the annual 
proffered wage. While CIS will prorate the proffered wage if the record contains evidence of net income or 
- 
8 
CIS electronic records show that the petitioner filed dozens of other 1-140 petitions which have been pending 
during the time period relevant to the instant petition. If the instant petition were the only petition filed by the 
petitioner, the petitioner would be required to produce evidence of its ability to pay the proffered wage to the 
single beneficiary of the instant petition. However, where a petitioner has filed multiple petitions for multiple 
beneficiaries which have been pending simultaneously, the petitioner must produce evidence that its job offers 
to each beneficiary are realistic, and therefore that it has the ability to pay the proffered wages to each of the 
beneficiaries of its pending petitions, as of the priority date of each petition and continuing until the 
beneficiary of each petition obtains lawful permanent residence. See Matter of Great Wall, 16 I&N Dec. 142, 
144-145 (Acting Reg. Comm. 1977) (petitioner must establish ability to pay as of the date of the Form 
MA 7-50B job offer, the predecessor to the Form ETA 750). See also 8 C.F.R. 3 204.5(g)(2). The record in the 
instant case contains no information about the proffered wage for the beneficiaries of the other petitions, 
about the current immigration status of the beneficiaries, whether the beneficiaries have withdrawn from the 
visa petition process, or whether the petitioner has withdrawn its job offers to the beneficiaries. Furthermore, 
no information is provided about the current employment status of the beneficiaries, the date of any hiring and 
any current wages of the beneficiaries. Since the record in the instant petition fails to establish the petitioner's 
ability to pay the proffered wage to the single beneficiary of the instant petition, it is not necessary to consider 
fbrther whether the evidence also establishes the petitioner's ability to pay the proffered wage to the beneficiaries 
of the other petitions filed by the petitioner, or to other beneficiaries for whom the petitioner might wish to submit 
1-140 petitions based on the same approved ETA 750 labor certifications. 
9 
 The petitioner's bank statements for January 2004 and June 2004 were not provided by the petitioner. 
Page 6 
payment of the beneficiary's wages specifically covering the portion of the year that occurred after the priority 
date (and only that period), such as monthly income statements or pay stubs, the petitioner has not submitted 
such evidence for the last two months of 2003. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
the Form ETA 750 was accepted for processing by the DOL. 
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. 
3 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.