dismissed EB-3 Case: Software Development

'dentiffing data deleted to 
preyen t dearly unwarranted 
i@vasjckp. of mrsnnal privacy 
PXrnIJC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
C 
IN RE: 
PETITION: 
 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 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a specialized software development and consultancy firm. It seeks to employ the beneficiary 
permanently in the United States as a programmerlanalyst. As required by statute, a Form ETA 750, 
Application for Alien Employment Certification approved by the Department of Labor, accompanied the 
petition. 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 the petitioner 
had not established that the beneficiary met the education requirements specified on the Form ETA 750 and 
denied the petition accordingly. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (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. 
The regulation at 8 C.F.R. 5 204.5(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)]. 
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. 5 204.5(d). The priority date in the instant 
petition is March 10, 1997. The proffered wage as stated on the Form ETA 750 is $42,000.00 per year. 
A labor certification is an integral part of this petition, but the issuance of a Form ETA 750 does not mandate the 
approval of the relating petition. To be eligible for approval, a beneficiary must have all the education, training, 
and experience specified on the labor certification as of the petition's priority date. 8 C.F.R. 5 103.2(b)(l), (12). 
See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Cornm. 1977); Matter of Katigbak, 14 
I. & N. Dec. 45,49 (Reg. Cornrn. 1971). 
On the Form ETA 750B, signed by the beneficiary on September 29, 2003, the beneficiary did not claim to 
have worked for the petitioner.1 The ETA 750 was certified by the Department of Labor on December 4, 
1997. 
I 
 On the certified Form ETA 750, the name of the 
 The record contains a letter 
from counsel requesting for the substitution of the original 
 Thus, 
the current beneficiary signed the form after the priority date and the date of certification. 
The 1-140 petition was submitted on October 3, 2003. On the petition, the petitioner claimed to have been 
established on January 31, 1991, to currently have 60 employees, to have an anticipated gross annual income 
of $5,800,000.00, and to have an anticipated net annual income of $540,000.00. With the petition, the 
petitioner submitted supporting evidence. 
In a decision dated November 8, 2004, the director determined that the evidence did not establish that the 
petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence, and the evidence did not establish that the beneficiary met the educational 
requirements specified on the Form ETA 750. Thus, she denied the petition. 
On appeal, counsel submits a brief and additional evidence. 
Counsel states on appeal that the petitioner has established its ability to pay the proffered wage based on its 
federal tax returns and the beneficiary's academic credential evaluation submitted with the 1-140 petition contains 
an error. Counsel submits a revised evaluation and the petitioner's 1120s U.S. Income Tax Returns for an S 
Corporation from 1997 to 2003. 
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). 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). 
The first issue is whether the petitioner has the ability to pay the proffered wage as stated in the Form ETA 750 as 
of the petitioner's 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. Cornrn. 1977). See also 8 C.F.R. 5 204.5(g)(2). In 
evaluating whether a job offer is realistic, 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. Cornrn. 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 September 29, 2003, the beneficiary did not 
claim to have worked for the petitioner. 
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. 
Page 4 
Feldman, 736 F.2d 1305 (9" Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Suva, 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 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 U.S. Income Tax Return for an S Corporation for 1997, 1998, 1999, 2000, 2001, 2002, and 2003. The 
record before the director closed on October 3, 2003 with the receipt by the director of the petitioner's 
submissions of its 1-140 petition and supporting evidence. As of that date the petitioner's federal tax return for 
2003 was not yet due. Therefore the petitioner's tax return for 2002 is the most recent return available. The 
petitioner's tax return for 2003 was submitted on appeal on December 6, 2004. Since the petitioner's tax return 
for 2003 is part of the record, it will be considered along with the other tax returns in the record. 
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. Where an S 
corporation has income from sources other than from a trade or business, that income is reported on Schedule K. 
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. 
The petitioner's tax return for 2001 shows the amounts for taxable income on line 23 of the Schedule K as shown 
in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in those years. 
The above information is sufficient to establish the petitioner's ability to pay the proffered wage from 1997 to 
2003. 
In her decision, the director stated that the petitioner failed to provide any evidence to prove ability to pay the 
beneficiary's proffered wage. The decision of the director to deny the petition was correct, based on the 
evidence in the record before the director. However, evidence submitted on appeal has overcome this portion 
of the direction's decision. 
The other issue is whether the petitioner has established that the beneficiary met the petitioner's qualifications for 
the position as stated in the Form ETA 750 as of the petition's priority date. 
The AAO will first evaluate the decision of the director, based on the evidence submitted prior to the director's 
decision. The evidence submitted for the first time on appeal will then be considered. 
The regulation at 8 C.F.R. 3 204.5(g)(l) states in pertinent part: 
Evidence relating to qualifying experience or training shall be in the form of letter(s) from 
current or former employer(s) or 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. 
To determine whether a beneficiary is eligible for an employment-based immigrant visa as set forth above, CIS 
must examine whether the alien's credentials meet the requirements set forth in the labor certification. The 
Application for Alien Employment Certification, form ETA-750A, blocks 14 and 15, sets forth the minimum 
education, training and experience that an applicant must have for the position of a prograrnmerlanalyst. On the 
ETA 750A submitted with the instant petition, block 14 describes the education requirements of the offered 
position as follows: 
Education (number of years) 
Grade School 8 
High School 4 
College 4 
College Degree Required Bachelor's Degree 
Major Field of Study 
 Math or Engineering, Science, or Computer Science 
The beneficiary states his qualifications on Form ETA 750B. On the ETA 750B submitted with the instant 
petition, in block 11, for information on the names and addresses of schools, colleges and universities attended 
(including trade or vocational training facilities), the beneficiary states the following: 
Schools, Colleges Degrees or Certificates 
and Universities, etc. Field of Study From To Received 
Datapro Information Computer July 1997 June 1999 Diploma in Computer 
Technology Applications Applications 
Osmania University Business May 1998 April 1990 Master of Business 
Management Administration 
Kakatiya University Biology June 1983 May 1986 Bachelor of Science 
Page 6 
The issue is whether the beneficiary met the education requirements stated by the petitioner in block 14 of the 
labor certification as of the day it was filed with the Department of Labor. According to the beneficiary's original 
academic credential evaluation, the beneficiary's Bachelor of Science degree "is equivalent to two years of [U.S.] 
undergraduate academic studies in General Science." Based on this evidence, the director determined that the 
petitioner failed to show that the beneficiary met the education requirements because "the two (2)-year degree in 
General Science and eighteen (18)-months further education in Computer Science [do] not constitute a four (4)- 
year bachelor's degree." 
On appeal, counsel states that "[iln the earlier evaluation report submitted with [the] 1-140 [petition], the evaluator 
made the mistake in determining that [the] beneficiary's Bachelor of Science degree requires two (2) years of 
course study when, in fact that degree requires three (3) years of study." Counsel concludes that "[the] three (3) 
year Bachelor degree in Science and eighteen (18) months further education in Computer Science does constitute 
a four (4) year Bachelor's degree with a major field of study in Computer Science." Counsel submits a revised 
evaluation prepared by the same credential evaluation fm that issued the original e~aluation.~ 
The regulations define a third preference category professional as a "qualified alien who holds at least a 
United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions." 
See 8 C.F.R. 3 204.5(1)(2). The regulation at 8 C.F.R. 3 204.5(1)(3)(ii) specifies the classification of a 
professional: 
(C) Professionals. 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 showing that the minimum of a baccalaureate degree 
is required for entry into the occupation. 
The above regulations use a singular description of foreign equivalent degree. Thus, the plain meaning of the 
regulatory language concerning the professional classification sets forth the requirement that a beneficiary must 
produce one degree that is determined to be the foreign equivalent of a U.S. baccalaureate degree in order to be 
qualified as a professional for third preference visa category purposes. 
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 (Cornrn. 1986). See also, Mandany v. 
Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). 
Both the original evaluation and the revised evaluation include a letter from Datapro Information Technology stating 
that the beneficiary "completed his DCS (Diploma in Computer Science) course with us from June 1993 to December 
1994." These dates are different from the dates listed on the ETA 750B. However, because other evidence in the record, 
including both evaluations, uses the same dates as the letter, AAO will assume that the beneficiary studied computer 
science from June 1993 to December 1994 and received his Diploma in Computer Science in 1994. 
Page 7 
The record indicates that the beneficiary does not have the required number of years of college education as 
stated in the ETA 750 as of the petition's priority date. The beneficiary holds a bachelor's degree in science 
from Kakatiya University. The revised credentials evaluation states that this degree is equivalent to three 
years undergraduate study in an accredited U.S. college or university. A bachelor degree is generally found to 
require four years of education. Matter of Shah, 17 I&N Dec. 244, 245 (Cornrn. 1977). 
 Therefore, the 
beneficiary's degree from Kakatiya University cannot be considered a foreign equivalent degree. Moreover, the 
ETA 750 specifically requires four years of college education. The beneficiary's three years of undergraduate 
studies does not satisfy the four-year requirement. 
The beneficiary also holds a diploma in computer science from Datapro Information Technology. However, 
the record does not demonstrate that the diploma from Datapro Information Technology is a single academic 
degree that is a foreign equivalent degree to a U.S. bachelor's degree. Furthermore, the credentials evaluation 
concludes that the applicant's course of instruction that led to the diploma is the equivalent of one-and-a-half 
years of graduate study. As stated above, the regulation sets forth the requirement that a beneficiary must 
produce one degree that is determined to be the foreign equivalent of a U.S. baccalaureate degree. The 
combination of a degree deemed less than the equivalent to a U.S. baccalaureate degree and a diploma does not 
meet that requirement. Therefore, the petitioner has not established that the beneficiary had the required number 
of years of college education. The petitioner also holds a master's degree, but the master's degree is not in any of 
the fields listed on the ETA 750. 
Despite the fact that the petitioner has established its ability to pay the proffered wage as of the priority date, it has 
not established that the beneficiary had one degree that is the foreign equivalent of a U.S. baccalaureate degree on 
March 10, 1997. Therefore, the petitioner has not overcome the decision of the director regarding the 
beneficiary's qualifications. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.