dismissed EB-3 Case: Internet Security

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
identifying data deleted to 
and Immigration 
Services 
prevent clear 1 y unwarranted 
invasion of personal privac) 
Office: VERMONT SERVICE CENTER 
Af'R 2 0 2007 
Date: 
EAC-05-05 1-5097 1 
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 1 153(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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an internet security provider. 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 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 February 18, 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)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(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. 
The regulation 8 C.F.R. 5 204.5(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 Forrn 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 October 15, 2001. The proffered wage as stated on the Form ETA 
750 is $79,830.40 per year. The Form ETA 750 states that the position requires four years of college studies, 
a bachelor's degree in computer systems engineering and two years of experience in the job offered. On the 
petition, the petitioner claimed to have been established in 1998, to have a gross annual income of $1,1613 15 
in 2001, to have a net annual income of $(10,532), and to currently employ 24 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 September 20, 2001, the beneficiary claimed to have worked for the petitioner as a programmer analyst, 
scientific, since April 200 1. 
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 
1 
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 2001, the beneficiary's W-2 forms for 
2001 through 2003*, and bank statements for the petitioner's business checking account covering December 
2001. The record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
On appeal, counsel asserts that the director failed to consider the total dollars available to pay the proffered 
wage, and that with the balance of $76,242.10 as of December 31, 2001 reflected on bank statements the 
petitioner established its ability to pay the proffered wage. 
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. Comm. 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 record contains copies of the beneficiary's W-2 forms for 2001 through 2003. These 
documents show that the petitioner hired and paid the beneficiary $36,538.52 in 2001, $50,000.08 in 2002 
and $50,000.08 in 2003. The petitioner failed to establish that it paid the beneficiary the full proffered wage 
in the relevant years, however, it established that it paid partial proffered wage. Therefore, the petitioner is 
obligated to demonstrate that it could pay the difference of $43,291.88 in 2001, and $29,830.32 in 2002 and 
2003 between wages actually paid to the beneficiary and the proffered wage. 
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 Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
- -- 
' 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. 5 103.2(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). 
2 
 The petitioner submitted the beneficiary's W-2 form for 2001 with the initial filing of the petition. The 
record also contains the beneficiary's W-2 forms for 2002 and 2003 submitted with concurrently filed Form I- 
485 application for adjustment of status. 
Chang v. T/zornburglz, 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 figures 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 Form 1120s U.S. Income Tax Return for an S Corporation filed by Imaginex, Inc. 
for 2001.~ The evidence shows that the petitioner is structured as an S corporation. According to the tax 
return, the petitioner's fiscal year is based on a calendar year. The petitioner's 2001 tax return demonstrates 
the following financial information concerning the petitioner's ability to pay the difference between wages 
actually paid to the beneficiary and the proffered wage from the priority date: 
In 2001, the Form 1 120s stated a net income4 of $(10,632). 
3 
 The AAO notes that the employer changed its name to . on the Form ETA 750 on 
September 22, 2003 and filed the instant petition using the new name. The petitioner did not submit any 
documentary evidence to prove the name change and the record does not contain any information about the 
petitioner's previous name. The petitioner must submit documentary evidence for its name change in any 
future proceedi 
 eturn of Imaginex, Inc. submitted indicates that both Imaginex, Inc. and 
the petitioner, 
 were established on the same day, use the same federal employer 
identification number, and are doing business at th 
 is also noted that - 
and the same 
 also signed the Form ETA 750 as the 
CFOIFounder o 
 and signed the instant petition on behalf of the petitioner. Therefore, the 
AAO will consider the 2001 tax return as the one for the petitioner for the purpose of determining the 
petitioner's ability to pay the proffered wage for 200 1. 
4 
 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 ." 
Page 5 
Therefore, for the year 2001, the petitioner did not have sufficient net income to pay the difference of 
$43,291.88 between wages actually paid to the beneficiary and 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 liabilities.' 
 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 200 1 were $0. 
Therefore, for the year 2001, the petitioner did not have sufficient net current assets to pay the difference of 
$43,291.88 between wages actually paid to the beneficiary and the proffered wage. 
The record before the director in the instant case closed on December 6, 2004 with the receipt by the director 
of the petitioner's submission of the petition. As of that date the petitioner's federal tax returns for 2002 and 2003 
should have been available. However, the petitioner did not submit its 2002 and 2003 tax returns, nor did counsel 
explain why the tax returns were 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, 21 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 petitioner failed to establish its ability to pay 
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 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-priorli 1 120s--200 pf Instructions for Form 1 120s (2002), available at 
http://www.irs.gov/pub/irs-priorli 1 120s--2002 .pdf. 
5 
According to Barron S Dictionary of Accounting Terms 117 (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. 
the proffered wage in 2002 and 2003 because it failed to submit its tax returns or other regulatory-prescribed 
evidence for these years. 
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 through an examination of wages paid to the beneficiary, or its net income; or net current 
assets. 
Counsel asserts in his 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. On appeal counsel asserts that the 
petitioner's bank account balance of $76,242.10 as of December 31, 2001 was sufficient to pay the proffered 
wage. The record of proceeding contains copies of bank statements for the petitioner's business checking 
account for December 2001. 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, enumerated in 8 C.F.R. 8 204.5(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 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 was considered in 
determining the petitioner's net current  asset^.^ 
Counsel cites Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), which relates to petitions filed during 
uncharacteristically unprofitable or difficult years but only in a framework of profitable or successful years. 
The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual 
income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed 
business locations and paid rent on both the old and new locations for five months. There were large moving 
costs and also a period of time when the petitioner was unable to do regular business. The Regional 
Commissioner determined that the petitioner's prospects for a resumption of successful business operations 
were well established. The petitioner was a fashion designer whose work had been featured in Time and Look 
magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's 
clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in California. 
The Regional Cornrnissioner's determination in Sonegawa was based in part on the petitioner's sound 
business reputation and outstanding reputation as a couturiere. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that 2001 was an uncharacteristically unprofitable year for the petitioner in a framework of 
profitable or successful years, nor have the financial documents for 2002 and 2003 been submitted to show 
they were in a framework of profitable or successful years. 
Counsel cites an unpublished AAO decision for the proposition that cash available is clear evidence of a 
company's financial ability to pay the proffered wage. While 8 C.F.R. 5 103.3(c) provides that precedent 
decisions of CIS are binding on all its employees in the administration of the Act, unpublished decisions are not 
similarly binding. Precedent decisions must be designated and published in bound volumes or as interim 
decisions. 8 C.F.R. 5 103.9(a). 
Page 7 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax return 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. 
Beyond the director's decision and assertions on appeal, the AAO will discuss whether the petitioner 
demonstrated that the beneficiary possessed the qualifying education and experience prior to the priority date. 
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). 
CIS must look to the job offer portion of the labor certification to determine the required qualifications for the 
position. CIS may not ignore a term of the labor certification, nor may it impose additional requirements. See 
Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. 
Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1 st Cir. 198 1). 
The certified Form ETA 750 in the instant case states that the position of programmer analyst requires four 
(4) years of college studies, a bachelor's degree in computer systems engineering and two (2) years of 
experience in the job offered. 
The petitioner must 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. Matter 
of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comrn. 1977). 
The regulation at 8 C.F.R. 5 204.5(1)(3)(ii)(C) states the following: 
If the petition is for a professional, the petition must be accompanied by evidence that the alien 
holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that 
the alien is a member of the professions. Evidence of a baccalaureate degree shall be in the form 
of an official college or university record showing the date the baccalaureate degree was 
awarded and the area of concentration of study. To show that the alien is a member of the 
professions, the petitioner must submit evidence that the minimum of a baccalaureate degree is 
required for entry into the occupation. 
The beneficiary set forth his credentials on Form ETA-750B. On Part 11, eliciting information of the names and 
addresses of schools, college and universities attended (including trade or vocational training facilities), he 
indicated that he attended National University of Technology in Quito, Ecuador in the field of "Computer System 
Engineering" from October 1984 through November 1997, culminating in the receipt of a "Bachelor's" degree. 
In corroboration of the Form ETA-750B, the petitioner submitted the beneficiary's diploma issued by the 
National Politechnic School in Ecuador showing the beneficiary was titled of Computer Science Engineer and 
earned the corresponding degree on November 28, 1997. However, the diploma does not indicate whether or 
not the beneficiary's degree is from a four year program and the petitioner did not submit the beneficiary's 
transcripts. The record contains inconsistent information about the beneficiary's years attending college. As 
noted above, the beneficiary claimed on the Form ETA 750B that he attended National University of 
Technology in Quito, Ecuador for 13 years from October 1984 to November 1997, while the submitted 
diploma was issued by the National Politechnic School. The petitioner did not explain whether these two 
schools are the same. Therefore, the AAO cannot determine whether or the beneficiary held a foreign 
equivalent to a US bachelor's degree since a bachelor degree is generally found to require four years of 
education. Matter of Shah, 17 I&N Dec. 244,245 (Comrn. 1977). Further, the AAO cannot determine whether or 
not the beneficiary met the four years of college studies requirements as set forth on the Form ETA 750 prior to 
the priority date. 
The record also contains a credentials evaluation report from World Education Services, Inc. (WES). WES' 
evaluation report concludes that the beneficiary's degree from Ecuador is the equivalent to Bachelor's degree 
in computer systems engineering from a regionally accredited institution based on the following credential 
analysis: 
Country: Ecuador 
Credential: 
 Titulo de Ingeniero de Sistemas (Title of Systems Engineer) 
Year: 1997 
Awarded by: 
 National University of Technology Quito 
Admission requirements:High school graduation 
Length of program: Five years 
Major/Specialization: Computer Systems Engineering 
The WES' evaluation report does not indicate what documents the evaluator examined and on which their 
conclusion is based, such as the diploma issued by the National Politechnic School or any other documents 
issued by National University of Technology, and documents indicating the length of program is five years, 
etc. Further, the evaluation does not conclude that the beneficiary's course of instruction that led to the 
diploma to be the equivalent of any specific amount of time spent at a US college or university. CIS may, in 
its discretion, use as advisory opinions statements submitted as expert testimony. However, where an opinion 
is not in accord with other information or is in any way questionable, CIS is not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). The 
WES' evaluation report in the instant case comes little evidentiary weight. 
The certified Form ETA 750 in the instant case states that the position of programmer analyst requires two (2) 
years of experience in the job offered. On the Form ETA 750B, the beneficiary set forth his work experience. He 
listed his experience as a "Programmer Analyst, Scientific" for the petitioner since April 2001, and as a full time 
(working 40 hours per week) "Programmer Analyst" at COMPUEQUIP DOS in Ecuador from July 1995 to 
December 1999. The beneficiary himself provided inconsistent information on the same Form ETA 750. In Part 
1 1 he represented that he attended school from October 1984 to November 1997. However, the beneficiary did 
not explain how he could manage both school and a full time job with COMPUEQUIP DOS at the same time 
from July 1995 to November 1997. The inconsistency casts question on reliability of the beneficiary's statement. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: "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." 
The regulation at 8 C.F.R. €j 204.5(g)(l) states in pertinent part: 
Page 9 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) of trainer(s) and shall include the name, address, and title of the 
writer, and a specific description of the duties performed by the alien or of the training received. 
If such evidence is unavailable, other documentation relating to the alien's experience or training 
will be considered. 
In corroboration of the regulatory requirements, the petitioner submitted an experience letter dated June 18, 
2004 from General Manager of COMPUEQUIP DOS certifying that the beneficiary was 
employed as a programmer/analyst fiom July 1995 until December 1999. This letter is from the beneficiary's 
former employer and includes a description of the duties the beneficiary performed during the employment. It 
appears to meet the requirements by the regulation. However, similarly with the beneficiary's statement on 
Part 15, this letter provided inconsistent information on the beneficiary's work experience with the 
beneficiary's statement on Part 11 of the Form ETA 750B. Therefore, again the inconsistency casts doubt on 
the reliability of the experience letter. "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, at 592. 
The letter was not submitted with competent objective evidence to support the contents of the letter and to 
resolve the inconsistency. 
Therefore, the petitioner failed to demonstrate that the beneficiary possessed the required 4 years of college 
studies, the foreign equivalent to a US bachelor's degree and the two years of experience in the job offered 
prior to the priority date with regulatory-prescribed evidence. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.