dismissed EB-3 Case: Computer Science

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A· CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 16,2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an. online communication and collaboration service provider, seeks to employ the 
Beneficiary as a computer programmer. It requests classification of the Beneficiary as a professional 
under the third preference immigrant classification. Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This · employment-base'd immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director of the Texas Service Center initially approved the petition. Subsequently, the Director 
revoked the petition's approval because the Petitioner did not establish that (a) the Beneficiary had 
the minimum education and experience required by the labor certification as of the petition's priority 
date; and (b) the Petitioner had the continuing ability to pay the proffered wage from the priority 
date onward. 
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary had the 
minimum education required by the labor certification, as evidenced by the credentials evaluations 
and translations in the record. The Petitioner further asserts that it has established its .continuing 
ability to pay the proffered wage based on wages it paid to the Beneficiary, its net mcome, 
replacement of a foriner employee by the Beneficiary, and the totality of the circumstances. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL). 1 See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that employing a foreign national in the position will not adversely affect the wages 
1 
The priority date of a petition is the date the DOL accepted the labor certification for processing, which in this case is 
October 2, 2012. See 8 C.F.R. § 204.5(d). 
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Matter of A- Corp. 
and working conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(l)-(ll) of the 
Act. Second , the employer files an immigrant visa petition with U.S . Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U.S.C. § I 154. Third , if USCIS app roves the 
petition , the foreign nationa l applies for an immigr ant visa abroad or, if eligible, adjustment of status 
in the United States. See section 245 ofthe Act , 8 U.S.C. § 1255. 
After granting a petition, USClS may revoke the petition's approval "at any time" for "goo d and 
sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by the record , a director's 
realization that a petition was erro neously approved may justify revocation. Matter of flo , 19 I&N 
Dec. 582, 590 (BIA 1988). . 
Good and sufficient cause exist s to issue a notice of intent to revoke (NOIR) where the record at the 
time of the notice's issuance, if unexplained or unrebutted, would have warranted the petition's 
denial. Mafler of Estime, 19 l&N Dec. 450, 451 (BIA 1987). Similarly, revocation is proper if the 
record at the time of the decision, including any explanation or rebuttal evidence provided by a 
petitioner , warranted a petition 's denial. Jd. at 452. 
II. THE BENEFICIARY'S EDUCA TlON 
The Director revoked the petition's approval, in part, because the Petitioner did not establish that the 
Beneficiary possessed the education required by 
the labor certification as of the priority date. 
A beneficiar y must meet all of the requirements of the offered position set forth on the labor 
certification by the priority date of the petition. 8 C.F.R. § 1 03.2(b)(l) , (I 2); Matter t~( Wing ·s Tea 
House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). In this case, the labor certification 
requires a bachelor's degre e in computer science, engineering, or a related field. The Petitioner 
indicated that it will accept a foreign educational equivalent, but it will not accept an alternate 
combination of education and experience. 
The labor certification states that the Beneficiary qualifies for the offered position based on his 
bachelor 's degree in industrial engineering technology from Iran, 
issued in 2009. · 
With the petition, the Petitioner submitted an "Interim Certificate of Bachelor's Degree Studies 
Completion" from stating that the Beneficiary completed the undergraduate 
program in " Industrial Technology-Industrial Engineering" on August 22, 2009, along with the 
Benefici ary's transcripts. The Petitioner also submitted an educational evaluation fr01n 
The evaluation concluded that the Beneficiary' s education at 
is equivalent to a bachelor's degree in industrial engineering technology as awarded by a 
regionally accr edited U.S. univer sity or college. In his NOIR, the Director stated that the certificate 
2 
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lvlalfer of A- Corp. 
is a provi sional degree, that the Petition er had not provided the Beneficiary 's 1inal degree ,2 and that 
the translations of the Beneficiary's provisiona l certificate and transcript were not certified 
translations as required by 8 C.F.R. § 103.2(b)(3). 3 The Director further stated that he would not 
accept the evalua tion because the record did not contain the Beneficiary ' s final degree and certified 
translations of his degree and tran script. 
In response to the NOJR, the Petjtioner submitted a second educational evaluation from 
which concludes that the Beneficiary's education at is 
equivalent to a bachelor's degree in industrial engine~ring from an accredited institution of higher 
education in the Cnited States. The Petitioner also submitted the Beneficiary's "Diploma of 
Completion of Bachelor 's Degree Course " from toge ther with his 
trans cri pl. The diploma and transcript were translated to English by the 
In his not ice of revocation (NOR), the Director indicated that the of the 
Beneficiary's diploma and tran script were not certified as accurate and complete, and that the 
tran slator did not certify that it was competent to translate from the foreign language into English. 
See 8 C.F.R. ~ 1 03.2(b)(3). He noted that the stamp on the trans lated documents states "[t]his 
certification does not include confirm ation of the accuracy of the translation ... " Thus, the Director 
declined to acce pt the diploma, transcripts , a nd the as credible evidence of the 
Beneficiary's education. Because the record was not accompanied by proper translatio ns, the Director 
indicated that he could not determine the Beneficiary ' s eligibility. 
On appeal , the Petitioner states that it is submitt ing "a second complet e English translation with the 
interpr eter's certitic ation." It submits English translations prepared by 
of the Benefic iary ' s transcri pt and "Comp letion Certificate of Bachelor's Degree 
Studies" from together .with a "Certification ofTranslation Accuracy" from 
However, the are not accompanied by copies of the original documents 
that were translated. It appears that the relate to the Beneficiary's dip loma and 
tran script submitted in response to the NOIR , but the and the 
have several di fterences. For example, the of the dipl oma states that the degree 
was completed on August 22, 2009, while the states that it was completed on 
August 21, 2009. The of the diploma also states that it was verified by the 
central organization on January 3, 20 I 0, while the states that it was veri lied by the 
central organization on October 3, 2009. The of the transcript states that 
graduation occurred on August 22, 2009, while the states that it occurred on 
2 A petitioner bears the burden to establish that a beneficiary's provisional certificate reflects that, at the time the 
certificate was issued, all of the substantive requirements for the degree were met and the degree was in fact approved by 
the responsible university body. Mauer ofO-A -, Inc. , Adopted Decision 2017-03 (AAO Apr. I 7, 20 17). 
~ Any document in a foreign language must be accompanied by a full English l anguage translation. 8 C.F.R. 
§ 103.2(b)(3). The translator must certit} thai the English language translation is e<>mplete and accurate, and thai the 
t ra~s lator is competent to translate from the foreign language into English. /d. 
3 
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.Maner (?{A- Corp. 
Augu st 21, 2009 . The Petiti oner has not resolved the inconsistencies in the tran slations with 
indep endent, objective evidence pointing to where the truth lies. lvfaaer £?[Ho, 19 I&N Dec. at 591-
592. Because the Petitioner submitted contlicting English language translations of the Beneficiary's 
educational documents, we cannot .meaningfully determine whether the translated materials are 
accurate and thus support the Petitioner ' s claim s. 
On appeal, the Petitioner states that the educational evaluations should be accepted based on a 
provi sion in the USCIS Adjudicator 's Field Manual (AFM) 4 and a 1995 lmmigration and 
Naturali zation Service memo. 5 The AFM states that adjudicators may con sider a credentials 
evaluation that is credible, logical , and well-documented. However , because the credentials 
eva1uations in this case are based on translations of documents that are not credible, we cannot 
accept the conclusions of the evaluations . USCIS may reject or give lesser evidentiary weight to 
crede ntial evaluations inconsistent with the record or "in any way questi onable." Mall er of Caron 
lm '!.Inc ., I 9 I&N Dec. 791 , 795 (Comm ' r 1988). 
Based on the forego ing, we tlnd the Petitioner has not established that the Beneficiary possessed the 
educ ation required by the labor certi tication as of the priority date . 
Irl. THE BENEFICIARY'S EXP~RIENCE 
The Director revoked the petition's approval, in part , because the Petitioner did not establish that the 
Beneficiary possessed the experienc e required . by the labor certification as of the priority date. 
Evid ence relating to qualit)'ing experience must be in the form of a letter from a current or former 
employer and must include the name, address, and tit le of the writer , and a specific description of the 
dutie s perlom1ed by the beneficiary . See 8 C.F.R. § 204.5(1)(3). 
In this case, the labor certification requ ires 12 months of experience in the job offer ed of computer 
programmer, or 12 months of experience as a software architect. Part H.14 of.the labor certification 
state s that the experience must include "Neo4J 1 Railo, ExtJS, Objective-C, Co!dFusion , and chat 
gateway protocols. Employer will accept any combination of education, training , or experience." 
The labor certification lists the Benefici ary's employment as a software architect with 
m Iran from August I, 2009, until April 6, 2011; and with the Petitioner as a 
comput~r programmer from Aprll 8, 2011 , onward. The Petitioner asserts that the Beneficiary 
qualifies for the offered position based on his experience as a software architect \Vith 
· · The record contains an experience Jetter from CEO of 
stating that the comp any employed the Beneficiary as a software architect/techn ical 
4 USClS Adj. Field Manual22 .2(j)( l)(C). 
s The Petitioner did not submit a copy of the memo on appeal or provide a citation for it. 
6 The email address gi\•en for is a address, which is the fictitious name of the Petitioner. 
The relationship between and the Petitioner, is not clear. This ambiguity must be 
resolved with independent, objective evidence of authority to sign the experience letter on behalf of 
4 
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Mauer 4 A- Corp. 
leader from August 2009 umil April 2011 . 
In the NOIR, the Director noted inconsistencies i1Y the Beneficiary' s expe rience listed on the labor 
certification and the information provided on his Form G-J25A, Biographic Information form/ and 
his prior nonimmigrant visa application. Speci!ically, his Form G-325A signe d on December 16, 
20 J 4, stated that he was employed as a software architect with from January 2006 to April 
20 II, which conflicts with the start date of Aug~st I, 2009, provided on the labor certification. He 
indicated on his nonimmigrant visa application in 20 l 0 that he was currently employed with 
and had not been previously employed, which conflict s with the information 
provid ed on the labor certification and Form G-325A. The labor certification does not list the 
Beneficiary 's employment with while the Form G-325 lists employment 
prio r to his emplo yment with and indicate s that his employment with 
ended in December 2009. The Director stated in the NOIR that these 
discrepancies must be resolved with indepen dent , objective evidence. Mealer of Ho, 19 l&N Dec. at 
59 1-592 . 
In respon se to the NOIR, the Petitioner asserte d that the Beneficiary was only obligated to list his 
employment from October 2009 to October 2012 on the labor certification . The instructions at Part 
K of the Form ETA 9089, Application for Permanent Employment Certification, required the 
Beneficiary to list all jobs he had held during the past three years, and to list any other experience 
that qual itied him for the offered job . Since his nonimmigrant visa application lists his employment 
with in 20 I 0, and his Form G-325A lists the sam e employment through 
December 2009, he \vas required to list it on the labor certification that was filed in October 2012. 
In response to the NOIR, the Petit ioner also submitted correspondence from the U.S. Embassy in 
Turkey , regarding the Ben eficiar y's nonimmigrant visa application . However , as noted in 
the NOR, the correspon dence does not indicate that the Embassy changed the Beneficiary's 
nonimmig rant visa application to ret1ect a ditTerent employm ent history . Instead, the 
corre spo ndence simply indicates that the Embassy received intormation from the Beneti ciary related 
to his application, but it does not indicate wh<;tt info rmation was provid ed, or whether any new 
infommtion was accepted and acted upon by the Embassy. 
On appeal, the Petitioner state s that the start date provided on the Form G-325A was a typo and not 
material to his eligibility for the offered position. However, the Petitioner has not provided 
independent, objective evidence of his prior employment, such as paychecks and tax records, 
verifying his employment history. Further , the Petitioner has not explained the inconsistencies 
between the labor certification and the nonimmigrant visa application . Thus, The Peti tioner has not 
resolved the discrepancies in the Beneficiary's employment history . !d. 
Maller of 1/o, 19 I&N Dec. at 591-592. 
' The Fonn G-325 lists employment with 
from November 2008 to December 2009; with 
from April 20 I I onward. 
5 
from March 2004 to Janua11' 2006: 
from January 2006 10 April 2 0 l l; and with the Petitioner 
Mauer of A- Corp. 
The Petitioner has not established that the Beneficiary possessed the experience required by the labor 
certification as of the priority date. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The Director revoked the petition's approval, in part, because the Petitioner did not establish its 
continuing ability to pay the proffered wage from the petition's priority date of October 2, 2012, 
onward. The proffered wage is $68,162 per year. 
The regulation at 8 C.F.R. § 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. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage, we next examine whether it had sufficient annual amounts of net income or net 
current assets to pay the difference between the proffered wage and the wages paid, if any. If a 
petitioner's net income or net current assets are insufficient, we may also consider other evidence of 
its ability to pay the proffered wage 8 
In this case, the Petitioner submitted copies of IRS Forms W-2, Wage and Tax Statements, 
demonstrating that it paid the Beneficiary as follows: 
• $54,999.96 in 20 12; 
• $54,999.96 in 2013; 
• $54,999.96 in 20 14; and 
• $78,416.65 in 2015. 
The amount on the 2015 Form W-2 exceeds the annual proffered wage. However, the amounts on 
the 2012,2013, and 2014 Forms W-2 do not equal or exceed the annual proffered wage. The record 
K Federal courts have upheld our method of detennining a petitioner's ability to pay a protlered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Lid v. Feldman, 736 F.2d 
1305, \309 (9th Cir. 1984); Estrada-Hernandez v. Holder,-- F. Supp. 3d--, 2015 WL 3634497, *5 (S.D. Cal. 2015): Rivzi 
v. Dep't of Homeland Sec .. 37 F. Supp. 3d 870,883-84 (S.D. Tex. 2014), ajf'd, --Fed. Appx. --,2015 WL 5711445, *I 
(5th Cir. Sept. 30. 20 15). 
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Maller of A- Corp. 
therefore does not establish the Petitioner's ability to pay the proffered wage based on the wages it 
paid to the Beneficiary. But we credit the Petitioner's payments to the Beneficiary. The Petitioner 
must demonstrate its ability to pay the difference between the annual proffered wage and the 
amounts it paid to the Beneficiary, which is $13,162.04 in 2012,2013, and 2014. 
The Petitioner's federal tax returns reflect net income 9 amounts. as follows: 
• -$78,600 in 20 12; 
• -$2,790in2013;and 
• $24,827 in 2014. 
Therefore, for the years 2012 and 2013, the Petitioner did not have sufficient net income to pay the 
difference between the annual proffered wage and the amounts it paid to the Beneficiary. For the 
year 2014, the Petitioner had sutlicient net income to fay the ditierence between the annual 
proffered wage and the amounts it paid to the Beneficiary. 
1 
As an alternate means of determining a petitioner's ability to pay the protiered wage, USCIS may 
.review its net current assets. Net current assets are the difference between a petitioner's current 
assets and current liabilities 11 A corporation's year-end current assets are shown on Schedule L, 
lines I 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 tax returns state end-of-year net current assets as 
follows: 
• -$267,416 in 20 12; and 
• -$247,426 in 2013. 
Therefore, for the years 2012 and 2013,' the Petitioner did not have sufficient net current assets to 
pay the proffered wage. 
9 The record indicates that the Petitioner is a C corporation. Net income is shown on Line 28 of the IRS Form 1120, U.S. 
Corporation Income Tax Return. 
10 Where a petitioner has filed Form 1-140 petitions for multiple beneficiaries, it must demonstrate that its job otTer to 
each bcnctlciary is realistic, and that it has the ability to pay the proffered wage to each beneficiary. See 8 C.F.R. § 
204.5(g)(2); see also Pale/ v . .Johnson, 2 F. Supp. 3d I 08, 124 (D. Mass. 20 14) (upholding our denial of a petition where 
a petitioner did not demonstrate its ability to pay multiple beneficiaries). USCIS records show that the Petitioner filed 
Form 1-140 petitions for other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well 
as the beneficiaries of the other Form 1-140 petitions that were pending or filed after the priority date of the current 
petition. 
11 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. Joel G. Siegel & Jae K. Shim, Barran 's Diclionary of Accuuming Terms 117 (3d ed. 
2000). 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). /d. at t t 8. 
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Matter ofA- Corp. 
On appeal, the Petitioner states that the Beneficiary will replace an employee, who it 
employed as a computer programmer from April I, 2012, to April 10,2015. However, the Petitioner 
employed the Beneficiary concurrently with as a computer programmer. ·The Beneficiary 
cannot replace an employee who concurrently performed the same job. 
The Petitioner also asserts on appeal that it has established its ability to pay based on the totality of the 
circumstances. We may consider evidence of a petitioner's ability to pay beyond its net income and 
net current assets, including such factors as: the number of years it has conducted· business; the 
growth of its business; its number of employees; the occurrence of any uncharacteristic business 
expenditures or losses; its reputation in its industry; whether a beneficiary will replace a current 
employee or outsourced service; or other evidence of its ability to pay a proffered wage. See lvfaller 
ofSonegawa~ 12 I&N Dec. 612,614-615 (Reg'l Comm'r 1967). 
In this case, the record indicates that the Petitioner was incorporated in 2002. The Petitioner states 
on appeal that it "reported net losses in 2012 and 2013 due to increased spending in order to speed 
their growth and increase their revenue and thus, the value of their company." It states that it started 
exploring opportunities to merge with another company in 2012, and that due to financial issues with 
that company, the resulting delay in the merger caused net losses in 2012 and 2013. However , the 
Petitioner has provided no evidence of a delay · in a merger due to financial issues with another 
company. Assertions of counsel do not constitute evidence. Mafler (~( Obaigbena, 19 l&N Dec. 533, 
534 n.2 (BIA 1988) (citing Malfer of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). 
Counsel's statements must be substantiated in the record with independent evidence. 
The Petitioner further asserts that "based on its recent purchase and merger," it has a reasonable 
expectation of future profits.t 2 It states that another entity organized under the laws of Japan now 
owns 25% of its stock and that the other entity plans to be listed on the Japanese financial markets. 
The Petitioner asserts that a planned initial public offering (IPO) will raise capital and help expand 
the Petitioner's business. The Petitioner cites Construction and Design Co. v. USCIS. 563 F.3d 593 
(7th Cir. 2009), in support of its claim that its reasonable expectation of future profitability 
establishes its ability to pay the proffered wage. However, Consrruction cmd Design is not binding 
precedent in this matter because the Petitioner is located in Maryland, which is not within the 
jurisdiction ofthe 7th Circuit Court ofAppeals. 13 Further, the Petitioner has provided no evidence to 
. establish that an IPO wi II increase its pro tits. 
The Petitioner also asserts that its gross sales have increased in 20 16, based on an unaudited 
financial statement it provides on appeal. Thus, it asserts that it has "demonstrated an upward 
1
: Against the projection of future earnings, Maller ofGreal Watt, 16 I&N Dec. 142, 144-\45 (Acting Reg'l Comrn'r 1977), 
states: 
I do not feel. nor do I believe the Congress intended, that the petitioner, who admittedly could not pay 
the offered wage at the time the petition was filed, should subsequently become eligible ro have the 
petition approved under a new ser of racts hinged upon probability and projections, even beyond the 
infonnation presented on appeal. 
13 
The L.S. Court of Appeals for the Seventh Circuit covers Illinois, Indiana, and Wisconsin. 
8 
JV!al/er of A- C01p. 
trend." The Petitioner's reliance on unaudited financial records is misplaced. Where a petitioner 
relies on financial statements to demonstrate its ability to pay the proffered wage, those financial 
statements must be audited. 8 C.F.R. § 204.5(g)(2). The unsupported representations of 
management are not reliable evidence and are insufficient to demonstrate the ability to pay the 
proffered wage 
The Petitioner also cites an unpublished AAO decision as support for its assertion that it has 
demonstrated its ability to pay" the proffered wage based on its history of doing business. This 
decision was not published as a precedent and therefore does not bind USCIS otlicers in future 
adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the 
specific facts of the individual case, and may be distinguishable based on the evidence in the record of 
proceedings, the issues considered, and applicable law and policy. · Further, the Petitioner has not 
established its historical growth since its incorporation. 
Unlike in Sonegawa, the Petitioner has not established its outstanding reputation in its industry. 
Also unlike in Sonegawa, the Petitioner in this case must demonstrate its ability to pay multiple 
beneficiaries. Thus, assessing the totality of circumstances in this individual case, the record does 
not establish the Petitioner's continuing ability to pay the proffered wage. 
The Petitioner has not established its continuing ability to pay the proflered wage trom the priority 
date onward. 
V. CONCLUSION 
In summary, the record does not establish that the Beneficiary possessed the required education and 
experience for the o!Tered job as of the priority date and does not demonstrate that the Petitioner had 
the continuing ability to pay the pro!Jered wage. 
ORDER: The appeal is dismissed. 
Cite as Matter of A- Corp., ID# 4 77516 (AAO Mar. 16, 2018) 
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