dismissed EB-3 Case: Computer Science

PUBLIC COPY 
atifying data deleted to 
gnvent dearly unwarranted 
invasion of mnal privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 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 1153(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 preference visa petition was denied by the Acting Director (Director), Nebraska Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a computer consulting firm. 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 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 August 17, 2005 denial, the only 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. 5 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 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 U.S. Department of Labor. 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 U.S. Department 
of Labor 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 December 4,2002. The proffered wage as stated on the Form ETA 
750 is $70,000 per year. The Form ETA 750 states that the position requires four years of college study, a 
bachelor's degree in computers or engineering and two years of experience in the job offered or the related 
occupation of programmer analyst. 
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 
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pertinent evidence in the record, including new evidence properly submitted upon appeal . Relevant evidence 
in the record includes the petitioner's corporate federal tax return for 2003, statement of projected income for 
year ending December 3 1, 2004, quarterly federal tax returns, state quarterly wage report and unemployment 
tax returns, and bank statements for the petitioner's accounts. The record does not contain any other evidence 
relevant to the petitioner's ability to pay the wage. 
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. The 
petitioner claimed to have been established in 200 1, to have a gross annual income of $53 1,218, to have a net 
annual income of $40,490, and to currently employ five 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 on November 30, 
2002, the beneficiary did not claim to have worked for the petitioner. 
On appeal, the petitioner asserts that the combination of its net total assets of $60,249, the net income of 
$40,490 and subcontracting fees of $200,882 paid to temporary workers in 2003 establish its ability to pay the 
proffered wage as of the priority date. 
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 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 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (CIS) requires the petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the 
circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. 
See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comrn. 1967). 
In determining the petitioner's ability to pay the proffered wage during a given period, 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 petitioner's ability to pay the proffered wage. In the 
instant case, the petitioner did not submit any evidence to show that the petitioner paid the beneficiary any 
amount of compensation in the relevant years. However, on appeal the petitioner advises that the beneficiary 
will replace temporary workers to whom the petitioner paid $200,882 in 2003 as subcontracting fees. The record 
does not, however, name these temporary workers, state their wages, verify their full-time employment, or 
provide evidence that the petitioner has replaced or will replace them with the beneficiary. In general, wages 
already paid to others are not available to prove the ability to pay the wage proffered to the beneficiary at the 
priority date of the petition and continuing to the present. Moreover, there is no evidence that the positions of the 
temporary workers involve the same duties as those set forth in the Form ETA 750. The petitioner has not 
documented the position, duty, and termination of the worker who performed the duties of the proffered position. 
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 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) and 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). However, counsel has not submitted a brief and/or 
evidence as of this date. The AAO will review and make a decision based on the evidence in the record only. 
If that employee performed other kinds of work, then the beneficiary could not have replaced him or her. Thus, 
the petitioner failed to establish its ability to pay the proffered wage through wages paid to the beneficiary 
from 2002 onwards. 
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 Woodcrafr 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), aff'd, 703 F.2d 571 (7th Cir. 1983). 
Reliance on its gross income and gross profit is misplaced. Showing that the petitioner's total income 
exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the 
proffered wage is insufficient. 
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. Reliance on the petitioner's 
depreciation in determining its ability to pay the proffered wage is misplaced. The court in K.C.P. Food Co., 
Inc. v. Sava specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income Jigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537. 
The record contains copies of the petitioner's Form 1120s U.S. Income Tax Return for an S Corporation for 
2003. The petitioner's tax return for 2003 demonstrates the following financial information concerning the 
petitioner's ability to pay the proffered wage of $70,000 per year from the priority date: 
In 2003, the Form 1 120s stated a net income2 of $40,490. 
2 
 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. The instructions on 
the Form 1120s 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 2 1 ." 
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 1120s 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 line 23 of the Schedule K, 
Shareholders' Shares of Income, Credits, Deductions, etc. For example, an S corporation's rental real estate 
income is carried over from the Form 8825 to line 2 of Schedule K. Similarly, an S corporation's income 
Page 5 
Therefore, for the year 2003, the petitioner did not have sufficient net income to pay the proffered wage that 
year. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, the petitioner's 
total assets must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in 
the determination of the petitioner's ability to pay the proffered wage. Rather, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilitie~.~ 
 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 net current assets during 2003 were $60,249. 
Therefore, for the year 2003, the petitioner did not have sufficient net current assets to pay the proffered 
wage. 
The priority date in the instant case is December 4, 2002, therefore, the petitioner must establish its ability to 
pay the proffered wage in 2002, the year of the priority date. However, the petitioner did not submit its tax 
return or other regulatory-prescribed evidence for 2002. Therefore, the petitioner failed to establish that it had 
the ability to pay the proffered wage as of the priority date. The record before the director in the instant case 
closed on July 14, 2005 with the receipt by the director of the petitioner's submission of the response to the 
request for evidence (RFE). As of that date the petitioner's federal tax return for 2004 should have been 
available. However, the petitioner did not submit its 2004 tax return, nor did it explain why the 2004 tax return 
was not submitted. In visa petition proceedings, the burden is on the petitioner to establish eligibility for the 
benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 
2 1 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 1 1 
I&N Dec. 15 1 (BIA 1965). 
The record contains bank statements of the petitioner's business account. Counsel's reliance on the balance in 
the petitioner's bank account is misplaced. First, bank statements are not among the three types of evidence, 
from sales of business property is carried over from the Form 4979 to line 5 of Schedule K. See Internal 
Revenue Service, Instructions for Form 1 120s (2003), available at http://www.irs.gov/pub/irs-prior/ill20s-- 
2003 .pdf; Instructions for Form 1 120s (2002), available at http://www.irs.gov/pub/irs-prior/i 1 120s-- 
2002.pdf. 
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According to Barron S Dictionary of Accounting Terms 11 7 (3rd 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 1 18. 
enumerated in 8 C.F.R. 5 204.5(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 in ths case has not demonstrated 
why the documentation specified at 8 C.F.R. tj 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, such as the petitioner's taxable income (income minus deductions) or the cash 
specified on Schedule L that will be considered below in determining the petitioner's net current assets. 
The record also contains the petitioner's statements of projected income for 2004 from 
Certified Public Accounts. The AAO cannot accept the statements of 
to establish the petitioner's ability to pay the proffered wage that year. Against the 
projection of future earnings, Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. Cornrn. 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 
to have the petition approved under a new set of facts hinged upon probability and projections, 
even beyond the information presented on appeal. 
Furthermore, 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 
statements of projected income that the petitioner submitted with the petition are not persuasive evidence. 
The accountant's report that accompanied those statements of projected income makes clear that they were 
produced pursuant to a compilation rather than an audit. As the accountant's report also makes clear, 
statements of projected income produced pursuant to a compilation are the representations of management 
and do not include evaluation of the support of the assumptions underlying the projection. The unsupported 
representations of management are not reliable evidence and are insufficient to demonstrate the ability to pay 
the proffered wage. 
Therefore, from the date the Form ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner had not established that it had continuing ability to pay the beneficiary the proffered wage as of 
the priority date in 2002 to 2004 through an examination of wages paid to the beneficiary, its net income or its 
net current assets. 
The petitioner asserts in its 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. The petitioner advocates 
combining the petitioner's net income with its net current assets to demonstrate the petitioner's ability to pay 
the proffered wage. This approach is unacceptable because net income and net current assets are not, in the 
view of the AAO, cumulative. The AAO views net income and net current assets as two different methods of 
demonstrating the petitioner's ability to pay the wage--one retrospective and one prospective. Net income is 
retrospective in nature because it represents the sum of income remaining after all expenses were paid over 
the course of the previous tax year. Conversely, the net current assets figure is a prospective "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. Thus, the petitioner is expected to receive 
roughly one-twelfth of its net current assets during each month of the coming year. Given that net income is 
retrospective and net current assets are prospective in nature, the AAO does not agree with counsel that the 
two figures can be combined in a meaningful way to illustrate the petitioner's ability to pay the proffered 
wage during a single tax year. Moreover, combining the net income and net current assets could double-count 
certain figures, such as cash on hand and, in the case of a taxpayer who reports taxes pursuant to accrual 
convention, accounts receivable. 
The petitioner'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 Department of Labor. 
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. 
$ 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.