dismissed EB-3 Case: Computer Science

identifying data del~ted to
prevent':dearly u!"!\va,rranted··
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PUBL1CCOPY
U.S. Department oflIomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE:
INRE: Petitioner:
Beneficiary:
Office: TEXAS SERVICE CENTER Date: APR·et·.t.
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. § lI53(b)(3)
ON BEHALF OF PETIlfIONER:
INSTRUCTIONS:
This is the decision of tHe Administrative Appeals Office in your case. All documents have been returned to
the office that originally pecided your case. Any further inquiry must be made to that office.
www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Acting Director (Director), Texas Service
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal· will be.
summarily dismissed ..
The petitioner is a computer consulting and software development firm. It seeks to employ the beneficiary
permanently in the United States as a programmer analyst. As required by statute, thepetition is accompanied
· by a Form ETA 750, Application for Alien Employment Certification, approved by the Department of Labor
(DOL). The instant petition is fora substituted beneficiary. I The original Form ETA 750 was accepted on
· July 19, 2001. The proffered wage as stated on the Form ETA 750 is $72,000 per year. The petition was
submitted on April 29, 2005 without sufficient evidence to establish the petitioner's continuing ability to pay
the beneficiary the proffered wage beginning on the priority date of the visa petition.
On June 6, 2005, the director issued a notice of intent to deny (NOill) requesting that the petitioner submit
additional evidence to establish that the petitioner has the ability to pay the proffered wage as of priority date and
continuing to the present. The director specifically requested the petitioner's federal tax returns with all
schedules, annual reports or audited or reviewed fmancial statements and the beneficiary's W-2 forms for 2002,
2003 and 2004. In a response received on July 6,2005, the petitioner submitteda 2001 W-2 form for the original
beneficiary of the labor certification application showing that the petitioner paid $32,305.77 to the replaced
employee, the petitioner's 2001 tax return with net income of $20,120 and net current assets of $16,141, the
petitioner's 2002 tax return with net income of $913 and net current assets of $21,342, the petitioner's 2003 tax
return with net income of $787 and without net current assets, and bank statements of the petitioner's business
checking accounts for May 2005.
The director determiried that the petitioner's tax returns for 2002 and 2003 did not establish the petitioner's
ability to pay the proffered wage of $72,000 in 2002 or 2003, and the petitioner did not establish its ability to
pay the proffered wage in 2004 since the record does not contain any evidence of ability to pay for 2004. The
director denied the petition on July 14,2005 accordingly.
On August 12,2005, counsel filed a timely appeal on the Form 1-290Bwithout any separate brief or evidence.
Counsel states that additional documentation and clarification regarding petitioner's financial ability would be
forwarded to the AAO within the next 30 days, both on the Form 1-290B and in the submission letter. On
February 21, 2007, the AAO sent a fax to counsel informing counsel that no separate brief and/or evidence
was received, to confirm whether or not he would send anything else in this matter and as a courtesy,
providing him with five days to respond. On February 21, 2007, counsel sent a reply to the AAO by fax
indicated that he did not file a brief or evidence in support of this appeal. Counsel has not provided any brief
and/or additional evidence to the AAO as of the date. Moreover, counsel here has not specifically addressed
the reasons stated in the denial decision and has not provided any additional evidence to rebut.the ground of
denial that the petitioner failed to establish that it had the ability to pay the proffered wage.
As stated in 8 C.F.R. § 103.3(a)(l)(v), an appeal shall be summarily dismissed if the party concerned fails to
· identify specifically any erroneous conclusion of law or statement of fact for the appeal.
ORDER: The appeal is dismissed.
1 An 1-140 petition for a substituted beneficiary retains the s~me priority date' as the original ETA 750.
Memo. from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization Service, to Regional
Directors, et al., Substitution of Labor Certification Beneficiaries, at 3, http://ows.doleta.gov/dmstree/fm/
fm96/fm_28-96a.pdf(March 7,1996). .