dismissed EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25.2016 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which describes itself as a mobile health care technology business, seeks to employ 
the Beneficiary as a software developer. It requests classification of the Beneficiary as a professional 
under the third preference immigrant classification. See Immigration and Nationality Act (the Act), 
section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for 
lawful permanent resident status. 
The Director, Texas Service Center, denied the petition. The Director concluded that the Petitioner 
had not established its ability to pay the profTered wage as of the priority date. 
The matter is now before us on appeal. The Petitioner asserts that its tax returns do not fully 
demonstrate its financial viability and that the Director erred in not considering the Petitioner's 
ability to attract venture capital as an element contributing toward its ability to pay the protTered 
wage. The Petitioner points out that we previously approved a case with similar evidence and 
asserts that if we prorate the proffered wage and consider the wages it paid to the Beneficiary. it has 
satisfied the burden of proof by a totality of the circumstances. Upon de novo review. we will 
dismiss the appeal. 
I. LAW AND ANALYSIS 
As required by statute. the petition is accompanied by an approved ETA Form 9089. Application for 
Permanent Employment Certification (labor certification). certified by the U.S. Department of Labor 
(DOL). 1 The priority date ofthe petition is March 22, 2013.2 
The issue before us is whether the Petitioner has established the ability to pay the protTered wage to 
the Beneficiary as of the March 22, 2013, priority date. 
1 See Section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
~The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 
Matter (~f W-. Inc. 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition tiled by or for an 
employment-based immigrant which requires an ofTer 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. 
A petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the 
priority date. See 8 C.F.R. § 204.5(d). Here, the labor certification was accepted on March 22. 
2013. The proffered wage is $80,000 per year. 
The evidence in the record of proceeding shows that the Petitioner is structured as a C corporation. 
On the petition, the Petitioner claimed to have been established on March 24, 2004, and to currently 
employ 40 workers. According to the tax return in the record, the Petitioner's fiscal year is based on 
a calendar year. On the ETA Fonn 9089, the Beneficiary claimed to have worked for the Petitioner 
since December 5, 2011. 
A petitioner must establish that its job offer to the beneficiary is a realistic one. Because the tiling of 
an ETA Form 9089 labor certification establishes a priority date for any immigrant petition later 
based on the ETA Form 9089, a 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. A petitioner's ability to pay the proffered wage is an essential 
element in evaluating whether a job otTer is realistic. ,)'ee Matter (?l Great Wall, 16 I&N Dec. 142, 
144 (Acting Reg'l Comm'r 1977): see also 8 C.F.R. § 204.5(g)(2). In evaluating whether ajob offer 
is realistic, United States Citizenship and Immigration Services (USCIS) requires a petitioner to 
demonstrate financial resources sufficient to pay the beneficiary's protTered wages. although the 
totality of the circumstances affecting the petitioning business \Vill be considered if the evidence 
warrants such consideration. See Matter (?fSonegawa, 12 I&N Dec. 612, 614-15 (Reg'! Comm·r 
1967). 
In determining a petitioner's ability to pay the proffered wage during a given period. USCIS will 
first examine whether the petitioner employed and paid the beneficiary during that period. If a 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to 
or greater than the proffered wage, the evidence will be considered prima facie proof of the 
petitioner's ability to pay the proffered wage. In the instant case, the Petitioner provided IRS Forms 
W-2 that reflect the Beneficiary was paid $60,166.65 in 2013 and $13,204.44 in 2014. 
The Petitioner has not established that it employed and paid the Beneficiary the full profTered wage, 
but it did establish that it paid partial wages in 2013 and 2014. As the proffered wage is $80.000 per 
2 
Matter (?f W-. Inc. 
year, the Petitioner must establish that it can pay the difference between the proffered wage and the 
wages actually paid to the Beneficiary, that is, $19,833.35 in 2013 and $66,795.56 in 2014. 
If a petitioner does not establish that it employed and paid the beneficiary an amount at least equal to 
the proffered wage during that period, USCIS will next examine the net income figure reflected on 
the petitioner's federal income tax return, without consideration of depreciation or other expenses. 
River Street Donuts. LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009): Taco £.\pecial v. Napolitano, 
696 F. Supp. 2d 873 (E.D. Mich. 2010), affd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). 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 Co11J. v. Sava, 632 F. Supp. 1049, 
1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcra.fi Hawaii. Ltd. v. Feldman, 736 F.2d 1305 (9th 
Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989): K.C.P. 
Food Co .. Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985): Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), affd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross sales and 
profits and wage expense is misplaced. Showing that the petitioner's gross sales and profits 
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 USCIS, had properly relied on the petitioner's net income tigure. as 
stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. 
The court specifically rejected the argument that the Service should have considered income before 
expenses were paid rather than net income. See Taco E.\pecialv. Napolitano. 696 F. Supp. 2d at 881 
(gross profits overstate an employer's ability to pay because it ignores other necessary expenses). 
As an alternate means of determining the petitioner's ability to pay the proffered wage. USCIS may 
review the petitioner's net current assets. Net current assets are the difference between the 
petitioner's current assets and current liabilities.3 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. 
For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the Form 
1120, U.S. Corporation Income Tax Return. The Petitioner submitted a copy of its 2013 tax return 
that ret1ects a net income of -$8,881,943 and net current assets of -$1069. The Petitioner did not 
submit a copy of its 2014 tax return. In a June 1, 2015, request for evidence the Director specifically 
requested that the Petitioner submit an audited financial report, federal tax return, or annual report 
3According to Barron's Dictionary(~( 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. "CuiTent 
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). !d. at 118. 
3 
Matter (~f W-, Inc. 
for 2014: however. the Petitioner has not explained why it has not provided that evidence. The 
Petitioner states on appeal that it submits audited consolidated financial statements for 2013 and 
2014; however, the Petitioner submitted statements for 2013 and 2014 that are clearly marked 
··draft"" and. while the cover pages of these statements refer to an ''Independent Auditor's Report.·· 
the statements are not accompanied by an auditor's report.-1. 
The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial 
statements to demonstrate its ability to pay the proffered wage, those financial statements must be 
audited. As there is no accountanfs report accompanying these statements. we cannot conclude that 
they are audited statements. Unaudited financial statements are the representations of management. 
The unsupported representations of management are not reliable evidence and are insufficient to 
demonstrate the ability to pay the proffered wage. 
Moreover. even if we were to accept the unaudited financial statements at face value they would be 
insufficient to establish the Petitioner's ability to pay the proffered wage. The statements reveal net 
income of -$8.709.814 in 2013 and -$14.083,480 in 2014. The statements also reveal net current 
assets of-$15.470,275 in 2013 and -$8,694.940 in 2014. 
The Petitioner requests that USC IS prorate the proffered wage for the portion of 2013 that occurred 
after the priority date. The Petitioner asserts that because it need only show an ability to pay the 
profTered wage from the March 22, 2013. priority date. the total wages owed for 8.5 months of 2013 
is $56.666.67 and the Petitioner paid the Beneficiary more than this amount. as shown on the IRS 
Form W-2. We will not however. consider 12 months of pay towards an ability to pay a lesser 
period ofthe proffered wage any more than we would consider 24 months of income towards paying 
the annual proffered wage. While USCIS 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. Although the Petitioner 
indicated on the labor certification that the Beneficiary began employment with it on December 5. 
201 L the record does not include all of the Beneficiary's 2013 pay stubs for the entire period from 
March 22. 
The Petitioner explains on appeal that the Beneficiary stopped working there between August 25. 
2013. and November 8, 2014. and asserts that if the Beneficiary had not returned to India the 
Petitioner ·'would have continued to pay him wages at or in excess of the proflercd wage."" 
However, speculative statements about what the Petitioner might have done if the Beneficiary had 
not left the country are not reliable evidence and are insufficient to demonstrate the ability to pay the 
proffered wage. 
~ In contrast, the Petitioner submitted similar statements for 2009 through 2012 and these statements arc all accompanied 
by signed Independent Auditor's Reports. 
4 
Matter (ifW-, Inc. 
On appeal, the Petitioner asserts that the Director applied a higher, more onerous standard of proof 
than the preponderance of the evidence. We identify no indication in the record that the Director 
applied an erroneous standard. A petitioner must establish that it meets each eligibility requirement 
of the benefit sought by a preponderance of the evidence. See Jvfatter (~l Chmvathe, 25 l&N Dec. 
369, 375-376 (AAO 2010). In other words, a petitioner must show that what it claims is ·'more 
likely than not'" or '·probably" true. To determine whether a petitioner has met its burden under the 
preponderance standard, we consider not only the quantity, but also the quality (including relevance. 
probative value. and credibility) of the evidence. /d. at 376: Matter (~l E-M-, 20 l&N Dec. 77 
(Comm'r 1989). We consider the evidence both individually and in its totality. Chawathe. at 376. 
The Petitioner notes on appeal that we previously sustained an appeal in relation to a petition that it 
had tiled on behalf of another employee. However. the record reveals significant distinctions 
between the current case and the case referenced by the Petitioner. Most notably, the shortfall in 
wages paid compared to the proffered wage is much larger in this case. Furthermore, the record in 
that case included regulatory-prescribed evidence of the Petitioner's ability to pay the protlered 
wage for all relevant years. Here, the Petitioner has not submitted its annual report. federal tax 
return, or audited financial statements to demonstrate its ability to pay the proffered wage in 2014. 
despite the Director's specific request for such evidence. 
The Petitioner states on appeal that ''the company's revenues have fluctuated somewhat but they 
have remained in the millions of dollars." However, this claim is inconsistent with the submitted 
unaudited financial statement which claims $8090 in gross revenues in 2014. As noted above, the 
Petitioner did not submit an audited return, federal income tax return, or annual report for 2014. 
The Petitioner explains on appeal that its ··products are being conceived and developed over the 
course of years of research and development to achieve the level of success that it has today with 
future projection for exceeding the original expectations.'' However, the unaudited financial 
statements show that the company claimed research and development expenditures of $1.213.337 in 
2013. and $494,545 in 2014. Therefore. it does not appear that the company's significant net losses 
and negative net current assets5 during these same years can be attributed solely to these claimed 
research and development costs. 
The Petitioner further states on appeal that it "has continued to attract venture capital investment" 
and asserts that these additional funds should be considered in calculating its ability to pay the 
proffered wage. The decision in Full Go.\pel Portland Church v. Thornburgh, 730 F. Supp. 441 
(D.D.C. 1988), is not binding here. Although we may consider the reasoning of the decision. we are 
not bound to follow the published decision of a United States district court in cases arising within the 
same district. See lvfatter (~l K-S-. 20 I&N Dec. 715 (BIA 1993 ). Further, the decision in Full 
Go.,pel is distinguishable from the instant case. The court in Full Go.\pel ruled that USCIS should 
consider the pledges of parishioners in determining a church's ability to pay the proffered wage. 
5 As detailed above, the company's unaudited financial statements reveal net income of -$8.709,814 in 2013 and 
-$14.083,480 in 2014, and net current assets of -$15.470,275 in 2013 and -$8,694.940 in 2014. 
5 
Mutter (~f W-. Inc. 
While the infusion of additional venture capital into the business may be considered in the totality of 
the circumstances. it cannot be considered in determining the Petitioner's ability to pay the proffered 
wage in the absence of regulatory-prescribed evidence. 
USCIS may consider the overall magnitude of the petitioner's business activities in its determination 
ofthe petitioner's ability to pay the proffered wage. See Matter of'Sonegawa. 12 I&N Dec. 612 
(Reg'! Comm'r 1967). As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to 
the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. 
USCIS may consider such factors as the number of years the petitioner has been doing business. the 
established historical growth of the petitioner's business. the overall number of employees. the 
occmTence of any uncharacteristic business expenditures or losses. the petitioner's reputation within 
its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any 
other evidence that users deems relevant to the petitioner's ability to pay the proffered wage. 
In the instant case. the record does not include the Petitioner's 2014 annual report, federal tax return. 
or audited financial statements as required by 8 C.F.R. § 204.5(g)(2). This precludes us from 
considering the Petitioner's ability to pay the profiered wage in the totality of its circumstances. 
While we may consider other factors similar to Sonegawa. nothing exempts the Petitioner from 
submitting evidence required by regulation. 
Furthermore, USCIS records indicate that the Petitioner has tiled Form 1-140 petitions for at least 
three different beneficiaries in addition to the instant Beneficiary. The Petitioner would need to 
demonstrate its ability to pay the proffered wage for each of these 1-140 beneficiaries from the 
priority date until the beneficiary obtains permanent residence. S'ee 8 C.F.R. § 204.5(g)(2). The 
Petitioner submits evidence on appeal showing three of its beneficiaries were paid less than their 
proffered wage in 2013, with a total shortfall in wages of $27.182.40, including wages owed to the 
instant Beneficiary. 
Thus. assessing the totality of the circumstances in this individual case. we conclude that the 
Petitioner has not established that it had the continuing ability to pay the proffered wage from the 
priority date onwards. 
II. CONCLUSION 
In summary, the Petitioner did not establish its ability to pay the protTered wage as of the March 22. 
2013, priority date. 
In visa petition proceedings. it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act. 8 U.S.C. § 1361; See A1atter ofBrantigan, 11 I&N Dec. 493 
(BIA 1966); Maller (~l Otiende. 26 I&N Dec. 127. 128 (BIA 2013 ). The Petitioner has not met that 
burden. 
Matter (?f W-, Inc. 
ORDER: The appeal is dismissed. 
Cite as Matter l?{W-. Inc., ID# 16300 (AAO Apr. 25. 2016)