dismissed EB-3 Case: Information Technology

i jdL1Q: COPY 
identifying data deleted to 
prevent dear1 y unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PETITION: 
 Petition for Alien Worker as a Slulled 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. 
/ 
~obert P. ~iemann, chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center denied the preference visa petition and dismissed a 
subsequent motion to reopenlreconsider. The matter is now before the Administrative Appeals Office (AAO) 
on appeal. The appeal will be dismissed. 
The petitioner is an information technology consulting business. It seeks to employ the beneficiary 
permanently in the United States as a programmer analyst. As required by statute, a Form ETA-750, 
Application for Alien Employment Certification approved by the Department of Labor, accompanied the 
petition. As set forth in the director's April 25, 2005 decision denying the petition, and in the director's June 
10, 2005 decision upholding his April 25, 2005 decision to deny, 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 and continuing until the beneficiary obtains lawful permanent residence, 
that it exercised control over the beneficiary thereby qualifying as the beneficiary's employer, or that the 
beneficiary would be employed in a permanent, full-time position. The director denied the petition 
accordingly. 
The record shows that the appeal is properly filed and timely and makes a specific allegation of error in law or 
fact. The procedural history of this case is documented in the record and is incorporated into this decision. 
Further elaboration of the procedural history will be made only as necessary. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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 or seasonal nature, for which qualified workers are not available in 
the United States. 
Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. 5 1153(b)(3)(A)(ii), provides for the granting of preference 
classification to qualified immigrants who hold baccalaureate degrees and who are members of the 
professions. 
Section 203(b)(3)(A)(iii) of the Act, 8 U.S.C. 8 1153(b)(3)(A)(iii), 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 unskilled labor, not of a temporary or seasonal nature, for which qualified workers 
are not available in the United States. 
The regulation at 8 C.F.R. 9 204.5(g)(2) states: 
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 a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profitlloss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
Page 3 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the petition's 
priority date, which is the date the Form ETA-750 was accepted for processing by any office within the 
employment system of the Department of Labor. See 8 C.F.R. tj 204.5(d). The priority date in the instant 
petition is October 1,2001.' The proffered wage as stated on the Form ETA-750 is $45,000.00 annually. 
The AAO reviews appeals on a de novo basis. See Dor v. I.N.S. 891 F.2d 997, 1002, n. 9 (2d Cir. 1989). The 
AAO considers all pertinent evidence in the record, including any new evidence properly submitted on 
appeal. 
In the instant appeal, counsel submits a statement and a copy of the brief that was submitted with the motion 
to reopen/reconsider. 
On the I-290B, signed by counsel on July 7, 2005, counsel checked the block indicating that he would be 
sending a brief andlor evidence to the AAO within six months. As no further documents were received by the 
AAO, a courtesy reminder was sent to counsel on December 27, 2006. No further documents, however, have 
been received by the AAO to date. 
It is noted that CIS records show that an 1-140 immigrant petition was approved for the beneficiary on 
December 9, 2005 for a full-time position as a progr&nmir analyst for ~ichnosofi Corporation,- 
. . . -. 
March 30, 2007 CIS record check shows further that 
.- . -. 
the beneficiary's adjustment of status to lawful permanent resident is pending. 
Relevant evidence in the record includes copies of the following: the brief submitted by counsel with his 
motion to reo~en/reconsider: the beneficiarv's earnines statements and W-2 Waee and Tax Statements from 
u " 
the petitioner; a subcontracting agreemeit, dated July 28, 2003, between the petitioner and - 
a memo explaining the differences between cash basis of accounting and accrual basis of 
a financial spreadsheet fi-om the petitioner's accountant; the petitioner's DE-6 Quarterly 
Wage and Withholding Reports for 2001, 2002, 2003, and 2004; and the petitioner's federal income tax 
returns for 2001, 2002, 2003, and 2004. In the brief submitted by counsel with his motion to 
reopenlreconsider, counsel submits as legal authority, as opposed to evidentiary documentation, copies of the 
following: an Interoffice Memorandum, dated May 4, 2004, from William R. Yates, Associate Director of 
Operations, CIS, to Service Center Directors and other CIS officials, titled Determination of Ability to Pay 
under 8 CFR 204.5(g)(2); an article by Romulo E. Guevara, titled Strengthening 1-140 Financial Ability 
Evidence In The Dawn Of Denials Without RFEs, Copyright O 2004, American Lawyers Association; and 11 
AAO decisions. Other evidence submitted with the motion to reopenlreconsider includes: payroll records of 
the petitioner's employees and a list of 75 approved 1-140 petitions for the petitioner fi-om 2001 to 2005. 
On appeal, counsel states, in part, that the proffered position and the financial commitment to pay the 
proffered wage are permanent in nature. Counsel states further that the petitioner has clearly demonstrated its 
ability to pay the proffered wage, as demonstrated by its net available funds "calculated through a 
combination of its income reported on federal tax returns, its available lines of credit, its bank balances and its 
statement of assets, minus the wages already paid to the [beneficiary] . . ." 
-- 
' The instant beneficiary is being substituted for the initial recipient of the certified alien labor certification 
application. An 1-140 petition for a substituted beneficiary retains the same priority date as the original 
ETA-750. Memo. from Luis G. Crocetti, Associate Commissioner, Immigration and Naturalization Service, 
to Regional Directors, et al., Immigration and Naturalization Service, Substitution of Labor CertEfication 
Beneficiaries, at 3, http://ows .doleta.gov/dmstree/fm/fm96/fm28-ad (March 7, 1 996). 
Page 4 
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. 204.5(g)(2). For each year at issue, the petitioner's financial resources generally must be sufficient 
to pay the annual amount of the beneficiary's 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. Comm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this 
evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the instant 
case, on the Form ETA-750B, signed by the beneficiary on June 16, 2004, the beneficiary claimed to have 
worked for the petitioner fkom March 1999 through July 2000, and from April 2004 to the present. 
If the instant petition were the only petition filed by the petitioner, the petitioner would be required to produce 
evidence of its ability to pay the proffered wage to the single beneficiary of the instant petition. However, 
where a petitioner has filed multiple petitions for multiple beneficiaries which have been pending 
simultaneously, the petitioner must produce evidence that its job offers to each beneficiary are realistic, and 
therefore that it has the ability to pay the proffered wages to each of the beneficiaries of its pending petitions, 
as of the priority date of each petition and continuing until the beneficiary of each petition obtains lawful 
permanent residence. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. Comrn. 
1977)(petitioner must establish ability to pay as of the date of the Form MA 7-50B job offer, the predecessor 
to the Form ETA-750). See also 8 C.F.R. fj 204.5(g)(2). 
has filed a total of 259 1-140 petitions since 1995, over 35 of which were received in 2004 and 2005, and are 
currently pending. These records also show that the petitioner has also filed 2,537 1-129 nonimmigrant 
petitions since 1995. Therefore, the petitioner must show that it had sufficient income to pay all the wages at the 
priority date. In the brief submitted by counsel with his motion to reopedkeconsider, counsel submits a 
spreadsheet to show the net amount of funds needed to pay the proffered wages of 30 pending 1-140 petitions 
that were filed in 2004, asserting that the petitioner's total funds available for 2001 through 2004 far exceeded 
the net amount of funds needed to pay the proffered wages to the beneficiaries of these 30 petitions. It is 
noted, however, that CIS records show that the petitioner filed over 35 1-140 petitions in 2004 and 2005. As such, 
the record does not account for the proffered wage commitments to the beneficiaries of all of the petitioner's 
immigrant and nonirnrnigrant petitions. 
It is also noted that even if a petition has been withdrawn by the petitioner, the petitioner has the right to 
substitute a new beneficiary on an ETA-750 labor certification application by filing a new 1-140 petition, 
supported by a new ETA-750B for the beneficiary. The ETA-750s underlying any withdrawn petitions remain 
valid, with the same priority dates. Memo. from Luis G. Crocetti, Associate Commissioner, Immigration and 
Naturalization Service, to Regional Directors, et al., Immigration and Naturalization Service, Substitution of 
WAC 04 201 53130 
Page 5 
vol. 4, 5 43.04 (Mathew Bender & Company, Inc. 2004)(available at "LexisNexis" Mathew Bender Online). 
Therefore, the certified ETA-750s underlying any withdrawn petitions retain potential relevance to the 
petitioner's total proffered wage commitments for a given year. Similarly, for any petitions which have been 
denied, the underlying approved ETA-750 would remain available for a new 1-140 petition for the same 
beneficiary or for a substituted beneficiary, provided that the reason for the earlier 1-140 denial was one which 
could be cured by a new petition for the same beneficiary, or for a substituted beneficiary. 
The instant 1-140 petition states that the petitioner was established in 1993 and currently has "200+" 
employees. In general, 8 C.F.R. § 204.5(g)(2) requires annual reports, federal tax returns, or audited financial 
statements as evidence of a petitioner's ability to pay the proffered wage. That regulation provides further: "In 
a case where the prospective United States employer employs 100 or more workers, the director may accept a 
statement fiom a financial officer of the organization which establish the prospective employer's ability to 
pay the proffered wage." The language "may accept" in the above regulation indicates that CIS is not required 
to accept such as statement, but rather may exercise its discretion not to accept such a statement. See 8 C.F.R. 
§ 204-5(g)(2)- 
The record contains a copy of a letter, dated June 30,2004, from the petitioner's president, who states, in part, 
as follows: 
Ace Technologies, Inc. employs 200+ employees; and 
Ace Technologies, Inc.'s annual revenues are approx. $20+ million; 
This clearly evidences our ability to pay [the beneficiary] the aforementioned salary of $45,000 
per year . . . 
Given the record as a whole and the petitioner's history of filing petitions, we find that CIS need not exercise 
its discretion to accept the June 30, 2004 statement from the petitioner's president. As discussed above, CIS 
electronic records show that the petitioner has filed a total of 259 1-140 petitions since 1995, over 35 of which 
were received in 2004 and 2005, and are currently pending. These records also show that the petitioner has 
also filed 2,537 1-129 nonimmigrant petitions since 1995. Consequently, CIS must also take into account the 
petitioner's ability to pay the petitioner's wages in the context of its overall recruitment efforts. Presumably, 
the petitioner has filed and obtained approval of the labor certifications on the representation that it requires 
all of these workers and intends to employ them upon approval of the petitions. Therefore, it is incumbent 
upon the petitioner to demonstrate that it has the ability to pay the wages of all of the individuals it is seeking 
to employ. Information on the Form 1-140 reflects that the petitioner has "200+" employees. Given that the 
number of immigrant and nonimmigrant petitions reflects an increase of more than twelve hundred percent of 
the petitioner's workforce, we cannot rely on a letter from the petitioner's president referencing the ability to 
pay the beneficiary. 
As we decline to rely on the letter from the petitioner's president, we will examine the other financial 
documentation submitted. These documents do not clearly support the president's contention. It is further 
noted that the June 30, 2004 letter does not state that the petitioner's president is the petitioner's financial 
officer, as required by the regulation at 8 C.F.R. 8 204.5(g)(2). 
The record contains a copy of the beneficiary's 2004 Form W-2 Wage and Tax Statement. The beneficiary's 
W-2 form for 2004 shows compensation received fiom the petitioner, as shown in the table below. 
WAC 04 201 53130 
Page 6 
Wage increase 
Beneficiary's actual needed to pay 
Year compensation Proffered wage the proffered wage. 
Counsel requests that CIS prorate the proffered wage for the portion of the year that occurred after the priority 
date. We will not, however, consider 12 months of income towards an ability to pay a lesser period of the 
proffered wage any more than we would consider 24 months of income towards paying the annual proffered 
wage. While CIS will prorate the proffered wage if the record contains evidence of net income or payment of the 
beneficiary's wages specifically covering the portion of the year that occurred after the priority date (and only that 
period), such as monthly income statements or pay stubs, the petitioner has not submitted such evidence. It is also 
noted that the beneficiary's name does not appear on the petitioner's 2004 quarterly wage reports. The record, 
however, contains no explanation for this inconsistency. It is incumbent on 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. 
Matter of Ho, 19 I&N Dec. 582, 591 -592 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. 582,59 1 (BIA 1988). 
The above information is insufficient to establish the petitioner's ability to pay the beneficiary's proffered 
wage in 2004. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
without consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for 
determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (gm Cir. 1984)); see also Chi-Feng Chang v. 17rornburgh, 719 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), afd., 703 F.2d 571 (7" Cir. 1983). In K.C.P. Food Co., Inc., 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. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Chi-Feng Chang v. Thornburgh, 7 19 F. Supp. 532 (N.D. Tex. 
1989); see also Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is an S corporation. The record contains copies of the petitioner's Form 
1120s US. Income Tax Returns for an S Corporation for 2001, 2002, 2003, and 2004. The record before the 
director closed on March 9, 2005, with the receipt by the director of the petitioner's submissions in response to 
the director's request for additional evidence. The petitioner's tax return for 2004 is the most recent return 
provided by the petitioner. 
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 1 120s. 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 21 ." Where an S corporation has income from sources other 
than from a trade or business, that income is reported on Schedule K. An S corporation's total income from its 
Page 7 
various sources are reported on lines 1 through 6 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 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 1120s (2003), 
available at http://www.irs.gov/pub/irs-prior/i 1 120s--2003 .pdf; hstructions for Form 1 120s (2002), available at 
http://www.irs.gov/pub/irs-priorli 1 120s--2002.pdf. 
Similarly, some deductions appear only on the Schedule K. The cost of business property elected to be treated as 
an expense deduction under Section 179 of the Internal Revenue Code, rather than as a depreciation deduction, is 
carried over from line 12 of the Form 4562 to line 8 of the Schedule K. See Internal Revenue Service, Instructions 
for Form 4562 (2003), at 1, available at http:Nwww.irs.govlpub/irs-priorli4562--2OO.pdf; Internal Revenue 
Service, Instructions for Form 1120s (2003), at 22, available at http://www.irs.gov/pub/irs-prior/i1120s-- 
2003 .pdf. 
Where the Schedule K has relevant entries for either additional income or additional deductions, net income is 
found on Line 23 of the Schedule K for the years 2001-2003, and on line 17e for the year 2004. 
In the instant petition, the petitioner's tax return indicates income from activities other than from a trade or 
business or additional relevant deductions for 2001. Therefore the figures for ordinary income on line 21 of page 
one of the petitioner's Form 1120s tax return do not include portions of the petitioner's income or all of its 
relevant deductions for 2001. For this reason, the petitioner's net income must be considered as the total of its 
income from various sources as shown on the Schedule K, minus certain deductions which are itemized on the 
Schedule K. The results of these calculations are shown on Line 23 of the Schedule K for 200 1. 
In the instant case, the petitioner's tax returns show the following amounts for income on line 23, Schedule K for 
2001, and on line 21 of page one for 2002,2003 and 2004, as shown in the table below. 
Tax 
year 
Net income Wage increase needed Surplus or 
or (loss) to pay the proffered wage (deficit) 
of the beneficiary only 
* Crediting the petitioner with the compensation actually paid to the 
beneficiary in that year. 
The above information is insufficient to establish the petitioner's ability to pay the beneficiary's proffered 
wage in 2002. Further, when considering the record as a whole, that the petitioner has filed a total of 259 I- 
140 petitions since 1995, over 35 of which were received in 2004 and 2005, and are currently pending, and 
that the petitioner has also filed 2,537 1-129 nonirnmigrant petitions since 1995, the above information is 
insufficient to establish the petitioner's ability to pay its proffered wage commitments in any of the years at 
issue in the instant petition. 
As an alternative means of determining the petitioner's ability to pay the proffered wages, CIS may review 
the petitioner's net current assets. Net current assets are a corporate taxpayer's current assets less its current 
liabilities. Current assets include cash on hand, inventories, and receivables expected to be converted to cash 
WAC 04 201 53130 
Page 8 
within one year. A corporation's current assets are shown on Schedule L, lines 1 through 6. Its current 
liabilities are shown on lines 16 through 18. If a corporation's net current assets are equal to or greater than 
the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current 
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due. Thus, 
the difference between current assets and current liabilities is the net current assets figure, which if greater 
than the proffered wage, evidences the petitioner's ability to pay. 
Calculations based on the Schedule L attached to the petitioner's tax returns yield the amounts for year-end 
net current assets as shown in the following table. 
Tax 
year 
Net 
current Wage increase needed Surplus or 
assets to pay the proffered wage (deficit) 
of the beneficiary only 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2002, 
2003, and 2004. Again, when considering the record as a whole, that the petitioner has filed a total of 259 
1-140 petitions since 1995, over 35 of which were received in 2004 and 2005, and are currently pending, and 
that the petitioner has also filed 2,537 1-129 nonirnrnigrant petitions since 1995, the above information is 
insufficient to establish the petitioner's ability to pay its proffered wage commitments in any of the years at 
issue in the instant petition. 
The record also contains a copy of a letter, dated May 5,2005, from the petitioner's accountant, who states, in 
part, as follows: 
Because [the petitioner] has used the Cash Basis as a method of accounting, this is the reason 
that the accounts receivable of the company at the end of the Tax Year are not considered in the 
Tax return. For the purposes of determining the employer's ability to pay the wages, this can be 
misleading and hence we are providing a detailed explanation and a comparison of the finances 
of the company when prepared using Accrual Basis. 
The ability of the company to pay in future can be best ascertained by Accrual Basis because it 
is the method of recording the earnings and expenses as they occur or are incurred without 
regard to actual date of collection or payment. 
The petitioner's tax returns were prepared pursuant to cash convention, in which revenue is recognized when it is 
received, and expenses are recognized when they are paid. This office would, in the alternative, have accepted tax 
returns prepared pursuant to accrual convention, if those were the tax returns the petitioner had actually submitted 
to the IRS. 
This office, however, is not persuaded by an analysis in which the petitioner, or anyone on its behalf, seeks to 
rely on tax returns or financial statements prepared pursuant to one method, but then seeks to shift revenue or 
expenses from one year to another as convenient to the petitioner's present purpose. If revenues are not 
recognized in a given year pursuant to the cash accounting then the petitioner, whose taxes are prepared 
Page 9 
pursuant to cash rather than accrual, and who relies on its tax returns in order to show its ability to pay the 
proffered wage, may not use those revenues as evidence of its ability to pay the proffered wage during that 
year. Similarly, if expenses are recognized in a given year, the petitioner may not shift those expenses to some 
other year in an effort to show its ability to pay the proffered wage pursuant to some hybrid of accrual and 
cash accounting. The amounts shown on the petitioner's tax returns shall be considered as they were 
submitted to the IRS, not as amended pursuant to the accountant's adjustments. If the accountant wished to 
persuade this office that accrual accounting supports the petitioner's continuing ability to pay the proffered 
wage beginning on the priority date, then the accountant was obliged to prepare and submit audited financial 
statements pertinent to the petitioning business prepared according to generally accepted accounting 
principles. 
For an S corporation, however, there are other considerations. The sole shareholder of a corporation has the 
authority to allocate expenses of the corporation for various legitimate business purposes, including for the 
purpose of reducing the corporation's taxable income. Compensation of officers is an expense category explicitly 
stated on the Form 1120s U.S. Corporation Income Tax Return. For this reason, the petitioner's figures for 
compensation of officers may be considered as additional financial resources of the petitioner, in addition to its 
figures for ordinary income. 
The documentation presented here indicates 
 100 percent of the company's stock in 
2001, 2002, 2003, and 2004. According to 
 S Form 1 120s Compensation of Officers, 
reported on Line 7 of page 1, he,elected to pay himself $199,477.00 in 2001, $1 68,259.00 in 2002, $150,000.00 
in 2003, and $150,000.00 in 2004. 
CIS (legacy INS) has long held that it may not "pierce the corporate veil" and look to the assets of the 
corporation's owner to satisfL the corporation's ability to pay the proffered wage. It is an elementary rule that a 
corporation is a separate and distinct legal entity fiom its owners and shareholders. See Matter of M, 8 I&N Dec. 
24 (BIA 1958), Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comrn. 1980), and Matter of Tessel, 17 
I&N Dec. 631 (Act. Assoc. Comrn. 1980). Consequently, assets of its shareholders or of other enterprises or 
corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. 
In the present case, however, CIS would not be examining the personal assets of the petitioner's owner, but, 
rather, the financial flexibility that the employee-owner has in setting his salary based on the profitability of 
his corporation. It is noted that the officer's compensation for 2002 is $153,566.00 greater than the proffered 
wage minus the ordinary income. The record of proceeding, however, does not contain evidence that would 
demonstrate that the sole officer could or would forego approximately nine percent of his officer's 
compensation in 2002 that could be redistributed towards having sufficient funds to pay the proffered wage in 
that year. Further, as discussed above, when considering the record as a whole, that the petitioner has filed a 
total of 259 1-140 petitions since 1995, over 35 of which were received in 2004 and 2005, and are currently 
pending, and that the petitioner has also filed 2,537 1-129 nonimmigrant petitions since 1995, the above 
information is insufficient to establish the petitioner's ability to pay its proffered wage commitments in any of 
the years at issue in the instant petition. 
The record contains a copy of an Interoffice Memorandum, dated May 4, 2004, from William R. Yates, 
Associate Director of Operations, CIS, to Service Center Directors and other CIS officials, titled 
Determination of Ability to Pay under 8 CFR 204.5(g)(2). The Yates' memorandum provides guidance to 
adjudicators to review a record of proceeding and make a positive determination of a petitioning entity's 
ability to pay if, in the context of the beneficiary's employment, "[tlhe record contains credible verifiable 
evidence that the petitioner is not only is employing the beneficiary but also has paid or currently is paying 
the proffered wage." The AAO consistently adjudicates appeals in accordance with the Yates memorandum. 
WAC 04 201 53130 
Page 10 
The regulation at 8 C.F.R. fj 204.5(g)(2), however, requires that a petitioning entity demonstrate its continuing 
ability to pay the proffered wage beginning on the priority date. The petitioner must demonstrate its 
continuing ability to pay the proffered wage beginning on the priority date, which in this case is October 1, 
200 1, and continuing until the beneficiary obtains lawful permanent residence. As discussed above, in this 
case the petitioner has failed to establish its ability to pay the proffered wage, in addition to its other proffered 
wage commitments, in any of the years at issue in the instant petition. 
Counsel also submits an article by 
 regarding a totality of circumstances test. Although 
CIS will not consider gross income without also considering the expenses that were incurred to generate that 
income, the overall magnitude of the entity's business activities should be considered when the entity's ability 
to pay is marginal or borderline. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). The 
petitioner was incorporated in 1993 and employs approximately 200 employees. The petitioner's gross 
income for 200 1,2002, 2003, and 2004 was above $15 million each year and the petitioner paid more than $7 
million in salaries and wages each of those years. When considering the record as a whole, and assessing the 
totality of circumstances, that the petitioner has filed a total of 259 1-140 petitions since 1995, over 35 of 
which were received in 2004 and 2005, and are currently pending, and also filed 2,537 1-129 nonimmigrant 
petitions since 1995, the above information is insufficient to establish the petitioner's ability to pay its 
proffered wage commitments in any of the years at issue in the instant petition. 
Counsel also states that the petitioner had in place a line of credit agreement with a California bank. In 
calculating the ability to pay the proffered salary, however, CIS will not augment the petitioner's net income 
or net current assets by adding in the corporation's credit limits, bank lines, or lines of credit. A "bank line" or 
"line of credit" is a bank's unenforceable commitment to make loans to a particular borrower up to a specified 
maximum during a specified time period. A line of credit is not a contractual or legal obligation on the part of 
the bank. See Barron S Dictionary of Finance and Investment Terms, 45 (1998). Since the line of credit is a 
"commitment to loan" and not an existent loan, the petitioner has not established that the unused funds from 
the line of credit are available at the time of filing the petition. As noted above, a petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Moreover, the 
petitioner's existent loans will be reflected in the balance sheet provided in the tax return or audited financial 
statement and will be hlly considered in the evaluation of the corporation's net current assets. Comparable to 
the limit on a credit card, the line of credit cannot be treated as cash or as a cash asset. However, if the 
petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner must submit 
documentary evidence, such as a detailed business plan and audited cash flow statements, to demonstrate that 
the line of credit will augment and not weaken its overall financial position. Finally, CIS will give less 
weight to loans and debt as a means of paying salary since the debts will increase the petitioner's liabilities 
and will not improve its overall financial position. Although lines of credit and debt are an integral part of any 
business operation, CIS must evaluate the overall financial position of a petitioner to determine whether the 
employer is makng a realistic job offer and has the overall financial ability to satisfy the proffered wage. See 
Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
Counsel's reliance on the balances in the petitioner's bank accounts is misplaced. 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 in this case has not demonstrated why the documentation specified at 8 C.F.R. fj 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 hnds that were not reflected on its tax return, such as the petitioner's taxable income 
WAC 04 201 53130 
Page 11 
(income minus deductions) or the cash specified on Schedule L that was considered herein in determining the 
petitioner's net current assets. 
Based on the foregoing analysis, the evidence in the record fails to establish the petitioner's ability to pay the 
proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. 
For ascertaining whether or not the petitioner is the beneficiary's "actual employer," the regulations provide 
guidance at 20 C.F.R. § 656.3 as follows: 
Employer means a person, association, firm, or a corporation which currently has a location 
within the United States to which U.S. workers may be referred for employment, and which 
proposes to employ a full-time worker at a place within the United States or the authorized 
representative of such a person, association, firm, or corporation. 
With respect to the permanent nature of the proffered position, counsel submits a copy of a contract showing 
that the beneficiary works on an extended contract with Infotech, Inc. Counsel states, in part, the following in 
his brief: 
[The beneficiary] has been offered a permanent position with the Petitioner and works at a 
client site thru a contract with Infotech Incorporated. 
This position is a permanent position with respect to the beneficiary, given that while this is a 
consulting position, whether this 1-140 Beneficiary works at an end client site "A or a client 
site "B", the beneficiary's position is permanent with respect to the Petitioner. It is the nature of 
the Petitioner's business to provide permanent employment and the Petitioner makes sure that 
the Beneficiary is constantly working on a permanent basis whether at one given project or 
another. This is inherent nature of consulting work and this is consistent with the business 
practices of IT Consulting companies all over the United States. 
Fixed-term contracts were considered in Matter of Smith, 12 I&N Dec. 772 (Dist. Dir. 1968). In Smith, a 
secretarial shortage resulted in the petitioner providing a continuous supply of temporary secretaries to 
third-party clients. The petitioner in Smith guaranteed a British secretary permanent, full-time employment 
with its firm for 52 weeks a year with ''fringe benefits." The district director determined that the petitioner 
was the beneficiary's actual employer because it was doing the following: providing benefits; directly paying 
the beneficiary's salary; malung contributions to the employee's social security, workmen's compensation, 
and unemployment insurance programs; withholding federal and state income taxes; and providing paid 
vacation and group insurance. Id. at 773. Additionally, the petitioner in Smith guaranteed the beneficiary a 
minimum 35-hour work week, even if the secretary was not assigned to a third-party client's worksite, and an 
officer of the petitioning company provided sworn testimony that the general secretarial shortage in the 
United States resulted in the fact that the petitioner never failed to provide full-time employment over the past 
three years. Id. 
Two cases falling under the temporary nonirnrnigrant H-1B and H-2B visa programs also provide guidance 
concerning the temporary or permanent nature of employment offers. In Matter of Ord, 18 I&N Dec. 285 
(Reg. Comm. 1992), a firm sought to utilize the H-1B nonimmigrant visa program and temporarily outsource 
its aeronautical engineers on a continuing basis with one-year contracts. The regional commissioner 
determined that permanent employment is established with a constant pool of employees are available for 
temporary assignments. Id. at 287. Additionally, Ord held that the petitioning firm was the beneficiary's 
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Page 12 
actual employer because it was not an employment agency merely acting as a broker in arranging 
employment between an employer and job seeker, but retained its employees for multiple outsourcing 
projects. Id. at 286. Likewise, Matter ofArtee, 18 I&N Dec. 366 (Comrn. 1982)' also addresses the issue of an 
employment offer's temporary or permanent nature. The commissioner held that the nature of the petitioner's 
need for duties to be performed must be assessed in order to ascertain the temporary or permanent aspect of 
an employment offer. In Artee, the petitioner was seeking to utilize the H-2B program to employ machinists 
temporarily to be outsourced to third-party clients. The commissioner referenced the occupation shortage of 
machinists in the U.S. economy to determine that the nature of the employment offered was permanent and 
not temporary. Id. at 366. The commissioner stated the following: 
The business of a temporary help service is to meet the temporary needs of its clients. To do 
this they must have a permanent cadre of employees available to refer to their customers for the 
jobs for which there is frequently or generally a demand. By the very nature of this 
arrangement, it is obvious that a temporary help service will maintain on its payroll, more or 
less continuously, the types of skilled employee most in demand. This does not mean that a 
temporary help service can never offer employment of a temporary nature. If there is no 
demand for a particular type of skill, the temporary help service does not have a continuing and 
permanent need. Thus a temporary help service may be able to demonstrate that in addition to 
its regularly employed workers and permanent staff needs it also hired workers for temporary 
positions. For a temporary help service company, temporary positions would include positions 
requiring skill for which the company has a non-recurring demand or infrequent demand. Id. at 
367-368. 
Noted in the record is the petitioner's June 30, 2004 job offer to the beneficiary, and the statement by the 
petitioner's president that the petitioner will have complete control and direction over the terms of the 
beneficiary's employment. Also noted are the subcontracting agreement, dated July 28, 2003, between the 
- - - - 
petitionerand, and counsel's assertion that th; beneficiary works on an extended 
contract at Infotech Consulting, Inc. The record, however, does not contain a work order and comprehensive 
description of the beneficiary1; proposed duties from an authorized representative of 1r- 
Without such evidence, the petitioner has not demonstrated that the petitioner would employ the beneficiary 
in a permanent, full-time position, or that it is the actual employer for the beneficiary. Additionally noted is 
that the record does not contain an employment agreement between the petitioner and the beneficiary. Further 
noted is that the record does not contain sufficient evidence of a demand for the petitioner's workers. In view 
of the foregoing, the petitioner has not met its burden of proof in these proceedings. The assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). Further, as discussed above, when considering the record as a whole, that the petitioner 
has filed a total of 259 1-140 petitions since 1995, over 35 of which were received in 2004 and 2005, and are 
currently pending, and also filed 2,537 1-129 nonimmigrant petitions since 1995, the petitioner has not 
provided evidence that it has met its past contractual obligations to place its information technology 
employees at its client companies. As such, the petitioner has not established that the position offered is a 
permanent full-time position and that the petitioner is the actual employer for the beneficiary. 
The decision of the director to deny the petition was correct, based on the evidence in the record before the 
director. 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal fail 
to overcome the decision of the director. 
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Page 13 
Beyond the decision of the director, the evidence fails to establish that the beneficiary has met the petitioner's 
qualifications for the position as stated in the Form ETA 750 as of the petition's priority date.2 On the ETA 750A 
submitted with the instant petition, block 14 describes the requirements of the offered position as a bachelor's 
degree in computer science, electrical engneering, or equivalent. Block 15 describes the equivalent requirements 
as a bachelor's degree in computer science, electronics engineering or equivalent, and 6 months of work 
experience in the job offered or in the related occupation of programmer analyst. The record contains a copy of 
the beneficiary's Bachelor of Engineering degree in computer science from Bangalore University in 
Bangalore, India. The record also contains a copy of an academic evaluation, dated April 4, 2000, by The 
Trustforte Corporation for the beneficiary. The evaluator concludes, in part, that the beneficiary's bachelor's 
degree is "the equivalent of a Bachelor of Science Degree in Computer Engineering from an accredited 
institution of higher education in the United States." It is noted that in this case, the beneficiary's transcripts 
reflect that he failed many of his college courses. As the evaluator does not address this issue, it is not clear 
how he reaches his conclusion that the beneficiary's foreign degree is "the equivalent of a Bachelor of 
Science Degree in Computer Engineering from an accredited institution of higher education in the United 
States." CIS uses an evaluation by a credentials evaluation organization of a person's foreign education as an 
advisory opinion only. Where an evaluation is not in accord with previous equivalencies or is in any way 
questionable, it may be discounted or given less weight. Matter of Sea, Inc., 19 I&N Dec. 8 17 (Comm. 1988). 
For this additional reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
2 
 An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 299 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis).