dismissed EB-3 Case: Computer Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-C-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 9, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a computer consulting services and corporate resources company, seeks to employ the 
Beneficiary as a management analyst. It requests classification of the Beneficiary as a professional 
under the third preference immigrant classifi~ation. See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful 
permanent resident status. 
The petition was initially approved. Subsequently, the Director, Texas Service Center, revoked the 
approval of the immigrant petition, concluding that the Petitioner had not established that it had the 
continuing ability to pay the proffered wages of all its I-140 beneficiaries and all its H-IB 
nonimmigrant employees. 
The matter is now before us on appeal. On appeal, the Petitioner asserts that it has had the ability to 
pay the proffered wage to the Beneficiary and its other I-140 beneficiaries, that the Director erred in 
understating wages paid to certain workers, and that he should not have considered deficiencies in 
wages paid to H-1B beneficiaries. We issued the Petitioner a notice of intent to dismiss and request 
for evidence (NOID/RFE) regarding the Petitioner's ability to pay the wages of its other sponsored 
workers.' Following the Petitioner's response, upon de novo review, we will dismiss the appeal? 
I. LAW AND ANALYSIS 
Section 203(b )(3)(A)(ii) of the Act, 8 U.S.C. § 1153(b )(2)(A)(ii), provides for immigrant classification 
to qualified immigrants who hold baccalaureate degrees and are members of the professions. 
1 
In our NOID/RFE, we also requested that the Petitioner provide additional evidence to resolve discrepancies in the 
dates of the Beneficiary's employment experience and whether a bachelor's degree was required for entrance into his 
post-graduate program. The Petitioner resolved these issues in response to our NOID/RFE. 
2 
This dismissal is based solely on the Petitioner not establishing its ability to pay its sponsored 1-140 beneficiaries 
without consideration of its H-1 B wage obligations. 
Matter of A-C-, Inc. 
As required by statute, the petition is accompanied by an ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), approved by the United States 
Depmiment of Labor (DOL). 
Section 212(a)(5)(A)(i) of the Act provides that DOL's purpose in the labor cetiification process is to 
certify that: 
(I) there are not sufficient workers who are able, willing, qualified (or equally 
qualified in the case of an alien described in clause (ii)) and available at the time of 
application for a visa and admission to the United States and at the place where the 
alien is to perform such skilled or unskilled labor, and 
(II) the employment of such alien will not adversely affect the wages and working 
conditions of workers in the United States similarly employed. 
After DOL has certified the labor certification, the petitioner files a Form J-140, Immigrant Petition for 
Alien Worker, with United States Citizenship and Immigration Services (USCJS). The petitioner must 
establish, among other things, that its job offer to the beneficiary is a realistic one. Because the filing of 
a labor certification application establishes a priority date for any immigrant petition later based on the 
labor certification, 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 J&N Dec. 142, 144 (Acting Reg'l 
Comm'r 1977). In evaluating whether a job otTer is realistic, USCIS requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petttlon filed by or for an 
employment-based immigrant which requires an otTer 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. 
Thus, the petitioner must demonstrate the continuing ability to pay the proffered wage beginning on 
the priority date, which is the date the labor certification was accepted for processing by any office 
within the employment system of DOL. See 8 C.F.R. § 204.5(d). 
Here, the labor certification was accepted on June 13, 20 11. The proffered wage as stated on the 
labor certification is $78,600.00 per year. 
2 
Matter C?f A-C-, Inc. 
The evidence in the record of proceedings shows that the Petitioner is structured as an S corporation. 
On the petition, the Petitioner claimed to have been established in 2004 and to currently employ 95 
workers. According to the tax returns in the record, the Petitioner's tax year is based on a calendar 
year. . On the labor certification, signed by the Beneficiary on October 3, 2011, the Beneficiary 
claimed to have worked for the Petitioner beginning on October 1, 2007. 
In determining the petitioner's ability to pay the beneficiary's proffered wage during a given period, 
USCIS 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. If the petitioner has not paid the beneficiary the 
full proffered wage each year, USCIS will next examine whether the petitioner had sufficient net 
income or net current assets to pay the difference between the wage paid, if any, and the proffered 
wage.3 If the petitioner's net income or net current assets is not sufficient to demonstrate the 
petitioner's ability to pay the proffered wage, USCIS may also consider the overall magnitude of the 
petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967). 
In addition, when a petitioner has filed immigrant petitions for multiple beneficiaries, USCIS will 
consider the petitioner's overall financial ability to pay the proffered wages of all its I-140 
beneficiaries who have not yet adjusted to lawful permanent resident status because these other 
filings may have an impact on the petitioner's continuing ability to pay the instant beneficiary. If 
USCIS were to focus exclusively on individual cases without regard to petitions for other I-140 
beneficiaries, it is possible that the petitioner's yearly net income or net current assets could exceed 
the proffered wage, or the shortfall in wages paid, of that individual beneficiary; however, the net 
income and net current assets may be insufficient to cover the proffered wages, or shortfall in wages 
paid, of all the Petitioner's sponsored l-140 beneficiaries. 4 Thus, comparing figures of net income 
3 See River Street Donuts, LLC v. Napolitano, 558 F.3d Ill (1st Cir. 2009); Elatos Restaurant Corp. v. Sava, 
632 F. Supp. 1049, 1054 (S.D.N.Y. 1986); and Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), 
aff'd, No. I 0-1517 (6th Cir. filed Nov. I 0, 20 II). 
4 Allowing a petitioner to utilize its net income or net current figures in isolation for each sponsored beneficiary could 
also negatively affect U.S. workers. Although arising in a different jurisdiction, we find a decision from the U.S. Federal 
Court of Appeals for the Fifth Circuit to be instructive where it held that the purpose of the ability to pay regulation of 
8 C.F.R. § 204.5(g)(2) is consistent with the labor certification process under section 212(a)(5)(A)(i) of the Act to ensure 
that U.S. workers will not be harmed. Rizvi v. Dep't of Homeland Sec. ex ref. Johnson, No. 14-20569, 2015 WL 
5711445, at *2 (5th Cir. Sept. 30, 20 15). Specifically, in upholding the ability to pay regulation of 8 C.F.R. § 204.5(g)(2), 
the Fifth Circuit stated: 
Viewed in the proper context, [the ability to pay regulation at 8 C.F.R. § 204.5(g)(2)] serves purposes 
in accord with the statutory duty to grant immigrant status only where the interests of American 
workers will not be harmed; showing the employer's ongoing ability to pay the prevailing wage is one 
reasonable way to fulfill this goal. 
2015 WL 5711445, at *2. Similarly, the ability ofUSCIS to consider a petitioner's ability to pay the proffered wages of 
its other 1-140 beneficiaries is a reasonable way to determine that it has the continuing ability to pay the beneficiary's 
3 
Matter of A-C-, Inc. 
and net current assets with the proffered wage of the instant beneficiary alone may present an 
inaccurate view of the petitioner's overall ability to pay that wage when other I-140 beneficiaries 
have also been sponsored. Accordingly, USCJS may consider a petitioner's ability to pay the 
proffered wages of all its I-140 beneficiaries as of the instant priority date and continuing onward 
until the beneficiary or other I-140 beneficiaries obtain lawful permanent resident status. 5 
The Petitioner submitted Forms W-2 showing wages it paid the Beneficiary compared to the 
proffered wage of $78,600.00: 
Year Wages paid Deficiency in wages paid (proffered 
wage minus wages paid) 
2011 $46,784.00 (proratedt None
1 
2012 $75,320.00 $3,280.00 
2013 $80,384.00 None 
2014 $91,608.00 None 
Therefore, the evidence in the record demonstrates that the Petitioner paid the Beneficiary wages 
that were lower than the proffered wage in 2012. Also, the record reflects that the Petitioner 
sponsored 40 other I -140 beneficiaries who were not paid their full proffered wages in each year 
from 2011 through 2014. Thus, the Petitioner must demonstrate that it had the ability to pay the 
difference between the proffered wage and the wages actually paid to the Beneficiary and the 
Petitioner's other I-140 beneficiaries in 2012. 
The following tables reflect the deficiencies in wages paid to the Beneficiary and the Petitioner's 
other I-140 beneficiaries: " 
proffered wage which inherently protects U.S. workers. 
5 
See also Patel v. Johnson, 2 F.Supp.3d I 08, 124 (D. Mass. 20 14) (affirming our revocation of a petition's approval 
where the record did not establish the petitioner's ability to pay the beneficiaries of multiple, pending petitions). 
6 This figure represents the amount paid to the Beneficiary as stated on 'the pay statements from June 13, 20 II through 
December 31, 2011. The Beneficiary's Form W-2 for 2012 states wages paid of $72,980 out of the $78,600 proffered 
wage for the entire year. The Petitioner requests that USCIS prorate the proffered wage for the portion of the year that 
occurred after the priority date. USC IS will prorate the proffered wage only if the record contains evidence of payment 
of the beneficiary's wages specifically covering the portion of the year that occurred after the priority date (and only that 
period). Therefore, we will only consider the wages paid from the priority date onward compared with the prorated 
proffered wage for that period of time. The Petitioner has submitted evidence to support prorating in the year of the 
priority date. We note that the wages paid as stated on the pay statements from the June 13, 2011 priority date through 
December 31,2011 are $46,784. 
7 
The period from June 13, 20 II through December 31, 20 II represents 55% of the year, so the Petitioner would have to 
demonstrate that it paid at least 55% of the proffered wage during this period, which is a prorated proffered wage of 
$43,230 for this period of time. The pay statements issued to the Beneficiary covering this period of time state wages 
paid of$46,784, which exceed the prorated proffered wage. 
4 
(b)(6)
Matter of A-C-, Inc. 
Instant Petition receipt Proffered Amount of wage deficiency (proffered wage minus 
Beneficiary number wage wages paid) 
2011 2012 2013 2014 
~ 
P. G. $78 ,600.00 None $3,280.00 None None 
Other 1-140 Petition receipt Proffered Amount of wage deficiencies (proffered wage minus 
Beneficiaries number wage wages paid) 
2011 2012 2013 2014 
I. U. $1 14,296.00 $49 ,799.04 $65,904.46 $52 ,399.50 None 
A. K. $82 ,000.00 $10 ,948.26 $2,214.00 8 None None 
N . P. $78 ,600 .00 $11 ,273.70
9 
$10 ,430.00 None None 
V. F. $78 ,600.00 None $5,931 .24 $7,950 .00 None 
N . M. $78 ,600.00 $3,558.00 10 None $6,570 .00 None 
A.T. $96 ,600 .00 $7,667.40 11 $ 17 19, 171.32- None None 
S. A. $1 15,000.00 $44,788.40 $1 ,284.00 None None 
R. T. $98 ,500.00 $51 ,068 .24 $44 ,990.04 $28 ,540 .00 $8,633 13 
R. S. $85 ,000.00 $14 ,754.17 $3,328.00 None None 
A. S. $115 ,000.00 $89 ,530.88 $115 ,000.00 $28 ,842.60 None 
S. S. $97,500.00 None $8,296.1 o'4 $4,477.60 $4,247.05 
S. S. $66,000 .00 $5,380.05 $3, I 05.00 $29 , 110.00 None 
H. R. $100 , I 00 .00 None $22 ,385.64
15 
$23 ,641.84 $900 
A. G. $96 ,600.00 $88 ,848.00 $55 ,962.00 $15 , 123.17 $9,126.90 
A.D. $100 , I 00.00 None $18, 125.80 16 $10,328.00 None 
8 
Deficiency based on the prorated amount of wages due from January I, 2012, until January II, 2012, the date of 
adjustment to lawful permanent resid ent status. 
9 Deficiency based on the prorat ed amount of wages due rrom the priorit y date of August 19, 20 I I, through 
December 3 I, 20 II , and the pay statements for this period. 
10 Deficiency based on the prorated amount of wages due from the priority date of July 27, 2011 , through 
December 3 I, 20 I I, and the pay statements for this period. 
11 
Deficiency based on the prorated amount of wages due from the priority date of July 28, 20 II, through 
December 31 , 20 II , and the pay statements for this period . 
12 
Deficiency based on the prorated amount of wages due from Januar y 1, 2012 , until Octob er 15, 2012 , the date of 
adjustment to lawful permanent resident status . 
13 
Deficiency based on the prorated amount of wages due from January I, 2014 , until November 3, 2014 , the date of 
resignation. 
14 
Deficiency based on the prorated amount of wages due from the priorit y date of March 23, 2012 , through 
December 31 , 2012 , and the pay statements for this period . 
15 
Deficiency based on the prorated amount of wages due from the priority date of August I, 2012 , through 
December 31, 2012 , and the pay statements for this period. 
16 
Deficiency based on the prorated amount of wages due from the priority date of July 17, 2012 , through 
December 31 , 2012 , and the pay statements for this period. 
5 
(b)(6)
Matter of A-C-, Inc. 
A. G. $96,600.00 $4,642.40 17 $29,480.00 $16,312.00 $184 
T. B.C. $78,600.00 $5,621.04 18 $15,600 .04 None None 
K. P. S. N. $1 16,400.00 None $23,906.80
1
~ $39,993.40 $5,000.49 
S. S. $96,400.00 $2,13 7.6020 $20,509.60 $4,032.00 None 
I. A. $78,600.00 $4,950.78
21 $5,142.40 None None 
P. S. $115 ,600 .00 None $21 ,709.20 $11 ,430 .25 None 
N.D. $96,400.00 None $35,751.60 $33,035.60 22 None 
S. K. $98,400.00 $3,152 .80
23 $41 ,880.00 None None 
H. S. $1 15,600.00 None $15,41 1.2024 None None 
S. P. $115,502.00 None $35,205 .5i5 $21,662.00 $645 
K.T. $1 16,000.00 None $104,880.00 $26,368.08 None 
S.D. $115,502.00 $115,502.00 $40,687.25 $24,422.00 None 
R. S. $96,400.00 $36,247.50 $78,160.00 $8,848.00 None 
J. T. $103,525.00 None None $31,477 $3,214.92 
P. T. $99,550.00 None None $31,761.80 $2,418 
R. S. $99,550.00 None None $30, 146.90 None 
S. A. $61,500.00 $40,897.50 26 · None None · None 
S. P. $88,718.00 $38,645.56 27 None None None 
P.C. $67,000.00 $9,652.50 . None None None 
V. E. $90,000.00 $18,980.00 None None None 
S. B. $88,000.00 $70,900.00 None None None 
17 Deficiency based on the prorated amount of wages due from the priority date of November I, 2011 , through 
December 31, 20 I 
I, and the pay statements for this period. · 
18 Deficiency based on the prorated amount of wages due ITom the priority date of October 21, 20 II , through 
December 31, 20 II, and the pay statements for this period. 
19 Deficiency based on the prorated amount of wages due from the priority date of June 28, 2012, through 
December 31, 2012 .and the pay statements for this period . 
20 Deficiency based on the prorated amount of wages due from the priority date of May 25, 2011, through 
December 31, 20 II and the pay statements for this period . 
21 Deficiency based on the prorated amount of wages due ITom the priority date of October 25, 20 II, through 
December 31 , 20 II and the pay statements for this period . . 
22 Deficiency based on the prorated amount of wages due from January I, 2013 , until November 27 , 2013 , the date of 
resignation. 
23 Deficiency based on the prorated amount of wages due ITom October 31, 2011, until December 31, 2011, and the pay 
statements for this period . 
24 Deficiency based on the . prorated amount of wages due from the priority date of June 27, 20 12, through 
December 31, 2012, and the pay statements for this period. 
25 Deficiency based on the prorated amount of wages due from the priority date of August 22, 2012, through 
December 31, 2012, and the prorated amount of wages due in this period. 
26 Deficiency based on the prorated amount of wages due from January I , 2011 , until September of2011, the month of 
resignation. · 
27 
Deficiency based on the prorated amount of wages due from January I, 20 II , until July 25, 20 II , the date of 
adjustment to lawful permanent resident status . 
6 
(b)(6)
Matter of A-C-, Inc. 
V. T. $88,718 .00 $45,938.18 28 None None None 
A.M. $114,296.00 $57,723.30 29 None None None 
E. T. $68,723.00 $16,287.70
30 None None None 
B. M. $66,000 .00 $4,053.60
31 None None None 
S. S. $172 ,250.00 None Non e None $20,531 .96 
Total amount of deficiencies in wages paid 
(including deficiencies in wages paid to the 
instant Beneficiary) $852,948.60 $847,731.21 $486,471.74 $54,901.32 
If the petitioner does not establish that it employed and paid the beneficiary and its other 1-140 
beneficiaries an amount 
at least equal to the proffered wage during the period at issue, users will 
next examine the net income figure reflected 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 eir. 2009); Taco Especial v. Napolitano , 696 F. Supp. 2d 873, 880 (E.D. Mich. 2010), afj"d, 
No. 10-1517 (6th eir. Nov. 10, 2011). Reliance on federal income tax returns as a basis tor 
determining a petitioner ' ~ 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 eir. 1984)).32 Reliance on the petitioner's gross receipts 
and wage expense is misplaced. Showing that the petitioner's gross receipts exceeded the protlered 
wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered 
wage is insufficient. 
In K.CP. Food Co., 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now USeiS , 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 users should have considered income before expenses were 
paid rather than net income. See also Taco Especial, 696 F. Supp. 2d at 881 (gross profits overstate 
an employer's ability to pay because it ignores other necessary expenses). 
The Petitioner's tax returns demonstrate its net income for 2011, 2012, 2013, and 2014 as shown 
below. 
28 Deficiency based on the prorated amount of wages due from January I, 20 II , until July 9, 20 II , the date of adju stment 
to lawful permanent resident status . 
29 Deficiency based on the prorated amount of wages due from January I, 20 II , until November 17, 20 II, the date of 
adjustment to lawful permanent resident status. 
Jo Deficiency based on the prorated amount of wages due from January I, 20 I I, until April 30, 20 II, the date of 
adjustment to lawful permanent resident status. 
31 Deficiency based on the prorated amount of wages due from January I, 2011 , until November 29, 2011 , the date of 
adjustment to lawful permanent resident status . 
'
2 
See also Chi-Feng Chang v. Thornburgh, 719 F. Supp . 532 , 537 (N.D . Tex . 1989); K. C. P. Food Co. v. Sava, 
623 F. Supp . 1080, 1084 (S.D.N.Y. 19.85); Ubeda v. Palmer, 539 F. Supp. 647 , 650 (N .D. Ill. 1982), aff'd , 703 F.2d 571 
(7th Cir. 1983). 
Matter of A-C-, Inc. 
• In 2011, the Form 1120S stated net income33 of$180,405. 
• In 2012, the Form 1120S stated net income of$230,258. 
• In 2013, the Form 1120S stated net income of$283,300. 34 
• In 2014, the Form 1120S stated net income of$388,961. 
The following chart provides a comparison between the Petitioner's net income and the deficiencies 
in wages paid to the Beneficiary and the Petitioner's other I -140 beneficiaries. 
2011 2012 2013 2014 
Total amount of deficiencies in wages paid $852,948.60 $84 7, 73 1.21 $486,471.74 $54,901.32 
Net income $180,405 $230,258 $283,300 $388,961 . 
Therefore, for the year 2012, the Petitioner did not have sufficient net income to pay the difference 
between the proffered wages and the wages paid to the Beneficiary and the Petitioner's other 1-140 
beneficiaries. 
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may 
review the petitioner's net current assets. Net current assets are the di±Ierence between the 
petitioner's current assets and current 1iabilities.35 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 protiered wage, the petitioner is expected to be able to pay the 
proffered wage using those net current assets. The Petitioner's tax returns demonstrate its end-of­
year net current assets for 2011, 2012, and 2013 as shown in the table below. 
• In 2011, the Form 1120S stated net current assets of$227,371. 
• In 2012, the Form 1120S stated net current assets of$704,598. 
• In 2013, the Form 1120S stated net current assets of$992,691. 
• In 2014, the Form 1120S stated net current assets of$3,536,555. 
The following chart provides a comparison between the Petitioner's net current assets and the 
deficiencies in wages paid to the Beneficiary and the Petitioner's other I-140 beneficiaries. 
33 As shown on line 21 ofpage one ofthe Petitioner's IRS Form 1120S. 
34 We note that the Petitioner's 2013 tax return is stamped "Do not file." It is unclear whether this is the same as the 
final tax return and whether this amount would accurately reflect the Petitioner's net income and net current assets for 
this year. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies~ will not suffice. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). The Petitioner 
should submit an IRS certified tax transcript in any further filings to resolve this issue. 
35 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). 
8 
(b)(6)
Matter of A-C-, Inc. 
2011 2012 2013 2014 
Total amount of deficiencies in wages paid $852,948.60 $847,731.21 $486,471.74 $54,901.32 
Net current assets $227,371 $704,598 $992,691 $3,536,555 
Thus, for 2012, the Petitioner did not have sufficient net current assets or net income to pay the 
remainder of the proffered wage to the Beneficiary and all of its other l-140 beneficiaries. 36 
Therefore, from the date the labor certification was accepted for processing by DOL, the Petitioner 
has not established thaf'it had the continuing ability to pay the proffered wages to the Beneficiary 
and all of the Petitioner's other I-140 beneficiaries as of the priority date through an examination of 
wages paid to the beneficiary, or its net income or net current assets. 
On appeal, the Petitioner cites a report prepared by its accountant who states that $2 million in 
software development costs were allocated as expenditures from 2009 to 2014, and that these 
expenses are considered under Generally Accepted Accounting Principles (GAAP) to be considered 
as capital of the company even though it may be written off as an expense for tax purposes. We note 
that it is unclear whether the figures cited by the Petitioner's accountant for software development 
costs are included on its IRS Form 1120S, Schedule L. As stated above, a corporation's year-end 
current assets are shown on Schedule L, lines 1 through 6, and its year-end current liabilities are 
shown on lines 16 through 18. The Petitioner has not established how these business expenditures 
would increase its net current assets as the Petitioner's accountant claims. It is also unclear how 
these costs negatively affected the Petitioner's business. Since the expenses are from 2009 to 2014, 
it is unclear that these expenses would be an unusual or a one-time expense, especially in light of the 
fact that the Petitioner is in the computer industry and the Petitioner might require routine software 
upgrades in order to maintain its business. Therefore, we will not consider these software 
development costs as demonstrating the Petitioner's ability to pay the remainder of the proffered 
wage to the Beneficiary and its other I -140 beneficiaries. 
The report from the Petitioner's accountant also indicates that the Petitioner's president owns 3 
office spaces either directly as an individual or indirectly through his company, 
The accountant states that the Petitioner makes optional rent payments to the Petitioner's 
president and to that should be excluded as part of the Petitioner's expenses 
and added to its net income. First, we note that the Petitioner has not provided any evidence 
establishing the ownership of these office spaces. Second, the Petitioner is essentially claiming that 
it is one and the same with the shareholder, which is not correct. For tax purposes, the corporate 
petitioner gets a deduction for the rents it pays to the shareholder (which is included in our 
calculation of net income), and the shareholder shows the rent payments as income on his IRS Form 
1040, Schedule E. The shareholder also is able to claim depreciation for the property on IRS Form 
1040, Schedule E. The Petitioner wants us take the net income figure from line 21 of page one of its 
Form 1120S and add back rents from line 11. However, rents are already accounted for in the 
36 However, as noted above , the Petitioner can pay the instant Beneficiary's proffered wage in 20 II based on prorating 
the proffered wage but not in 20 !2 . 
9 
Matter of A-C-, Inc. 
calculation of line 21 net income, and there is no evidence that the Petitioner could reduce the rent 
paid to the shareholder in order to pay the proffered wage.37 
"[USCIS] and judicial precedent support the use of tax returns and the net income .figures in 
determining the petitioner's ability to pay. Chi-Feng Chang, 719 F. Supp. at 537 (emphasis added). 
The Petitioner has not provided sufficient legal support for the assertion that these rent payments 
should be added back to net income. Because 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 1s ability to pay the 
proffered wage. See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). 
Therefore, we will not add rent payment costs to the Petitioner's net income or net current assets. 
In addition, the Petitioner states that we should consider the average monthly balance in its business 
checking account summaries. We disagree. First, bank statements are not among the three types of 
evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a 
proffered wage. While this regulation allows additional material "in appropriate cases," the 
Petitioner has not demonstrated why the documentation specified at 8 C.F.R. § 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. Third, no evidence was submitted to demonstrate that the funds reported on 
the Petitioner's bank statements somehow reflect additional available funds that were not reflected 
/ on its tax return(s), such as the Petitioner's taxable income (income minus deductions) or the cash 
specified on Schedule Las discussed abovein determining the Petitioner's net current assets. 
On appeal, the Petitioner asserts that it has the ability to pay the proffered wages to the instant 
Beneficiary and the other I -140 beneficiaries through an assessment of the totality of the 
circumstances. As stated above, 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 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 detetmined 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 co1leges and universities in California. The 
37 The Petitioner must pay the fair rental value for the property. Rents below fair rental value may be adjusted by the 
IRS. See I.R.C. § 482. 
10 
Matter of A-C-, Inc. 
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 tax returns in the record and the Form I-140 indicate that the Petitioner has 
been in business since 2004. The Form l-140 states that the Petitioner employs 95 workers.38 The 
Petitioner has submitted tax documentation from 2010 to 2014 as well as Forms W-2 and other pay 
records. Although the priority date of the instant petition is November 17, 2011, we will consider 
the Petitioner's 2010 tax return in relation to the Petitioner's historical growth assertions only in the 
totality of the circumstances under Sonegawa, 12 l&N Dec. at 614-15. An assessment of the history 
of deficiencies in wages paid to the Beneficiary and the Petitioner's other l-140 beneficiaries in 
comparison to its net income and net current assets from 2010, the year before the priority date in 
this matter, to 2013 is significant. The record demonstrates that the deficiencies in wages paid to 
these l-140 beneficiaries amounted to $906,185.67; $852,948.60; $847,731.21; and $486,471.74 in 
2010,2011,2012, and 2013, respectively, as shown in the table below.39 
Year Deficiencies in Net income Net current assets 
wages paid 
2010 $906,185.67 $157,658 $186,734 
2011 $852,948.60 $180,405 $227,371 
2012 $847,731.21 $230,258 $704,598 
2013 $486,471.74 $283,300 $992,691 
2014 $54,901.32 $388,961 $3,536,555 
This table indicates that the Petitioner's tax returns for 2010, the year before the priority date, for 
2011, the year of the priority date, and for 2012 each show a fairly large gap between the amounts of 
net income and net current assets compared to the total proffered wage obligations. 
The Petitioner states that its gross receipts have increased year-to-year from 2010 to 2014 by almost 
double, yet despite this as shown above, the Petitioner still showed significant deficiencies between 
38 We note that from the date of incorporation, the Petitioner has filed 535 H-1 B petitions and 97 1-140 petitions. We 
note that these figures may include petitions to extend H-1 B status for cetiain beneficiaries or 1-140 petitions for already 
employed H-1 B workers, and some of these H-1 B and 1-140 beneficiaries may no longer work for the Petitioner. 
39 These figures represent deficiencies in wages paid after prorating certain periods as demonstrated by the Petitioner. 
The deficiency in wages paid to the Petitioner's other beneficiaries decreased in 2014, amounting to $54,901.32 when 
the company's net current assets substantially increased. 
II 
Matter of A-C-, Inc. 
its proffered wages and wages paid. While the Petitioner is not required to pay the proffered wage 
until the time of adjustment to lawful permanent resident status, these wage deficiencies compared to 
net income and net current assets reflect negatively on the Petitioner's ability to pay the proffered 
wage from the priority date onward and should be considered in relation to the totality of the 
circumstances. As stated above, one purpose of the ability to pay regulation at 8 CTR. 
§ 204.5(g)(2) is to safeguard the interests of U.S. workers. See Rizvi v. Dep 't of Homeland Sec. ex 
ref. Johnson, No. 14-20569, 2015 WL 5711445, at *2 (5th Cir. Sept. 30, 2015). In tiling for a 
foreign national, the petitioner attests in Part N of the ETA Form 9089 that it has the funds available 
to pay the salary to the worker and that the job has been and is clearly open to U.S. workers. 
The Petitioner also states that in 2014 alone it invested in software development and commercial real 
estate ventures totaling over $4 million. As stated above, the year at issue here is 2012, not 2014. 
The Petitioner's accountant states that $2 million were allocated as software development costs from 
2009 to 2014. However, as noted above, the Petitioner's business is in the computer industry and 
software development and upgrades might be continually required to remain competitive. As these 
costs occurred between 2009 and 2014, they would not be considered as a one-time or unusual 
expense. The Petitioner has not demonstrated the existence of any unexpected business expenses in 
2012. While we acknowledge the positive growth the Petitioner has experienced in its gross receipts 
and net current assets from 2012 through 2014, in the totality of the circumstances this does not 
outweigh the amount of deficiencies in wages paid in 2012, which cannot be overcome after 
considering the Petitioner's net income or net current assets,40 especially in light of the fact that there 
has been a history of having deficiencies in wages paid to I -140 beneficiaries from 201 0 through 
2012 compared to net income and net current assets. Despite the positive growth of the Petitioner's 
business in 2014, the ability to pay the proffered wage must be established from the priority date of 
November 17,2011, onward. A visa petition may not be approved based on speculation of future 
eligibility or after the petitioner becomes eligible under a new set of facts. See Matter of Michelin 
Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm'r 1971 ). Thus, assessing the totality of the circumstances in this individual case, it is 
concluded that the Petitioner has not established its ability to pay the proffered wage beginning on 
the priority date. 
II. CONCLUSION 
The evidence submitted does not establish that the Petitioner had the ability to pay the proffered 
· wage as of the priority date. 
40 USCIS will consider separately, but not in combination, a petitioner's net income and net current asset figures to 
determine its ability to pay the proffered wage as of the priority date. Net income represents the amount of income 
remaining after all expenses were· paid over the course of the previous tax year. Conversely, the net current assets figure 
is a "snapshot" of the net total of petitioner's assets that will become cash within a relatively short period of time minus 
those expenses that will come due within that same period of time. Accordingly, we consider net income and net current 
assets separately toward a petitioner's ability to pay the proffered wage. 
12 ( 
Matter of A-C-, Inc. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-, Inc., ID# 80730 (AAO Mar. 9, 2017) 
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