dismissed EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-C-S-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 11,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of software development and computer consulting services, seeks to 
employ the Beneficiary as a software developer. It requests classification of the Beneficiary as a 
professional under the third preference immigrant category. See Immigration and Nationality Act 
(the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This category allows a U.S. 
business to sponsor a professional with a bachelor's degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's ability to pay the proffered wage, as required. 
On appeal, the Petitioner submits additional evidence and asserts that the wages it paid to the 
Beneficiary, its net current assets, and the totality of the circumstances demonstrate its ability to pay 
the proffered wage. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. The Employment-Based Immigration Process 
Employment-based immigration generally follows a three-step prpcess. First, a prospective U.S. 
employer must obtain an approved ETA Form 9089, Application for Permanent Employment 
Certification (labor certification), from the U.S. Department of Labor (DOL). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, the employer files Form l-140, 
Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See 
section 204 of the Act, 8 U.S.C. § 1154. If the Form I-140 is approved, the foreign national may 
apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See 
section 245 of the Act, 8 U.S.C. § 1255. 
Matter of A-C-S-, Inc. 
By approving the labor certification in this case, the DOL certified that U.S. workers are not able, 
willing, qualified, and available for the offered position of software developer. See section 
212(a)(5)(A)(i)(J) of the Act. The DOL also certified that the Beneficiary's employment in the position 
will not hurt the wages and working conditions of U.S. workers in similar jobs. See section 
212( a)(5)(A)(i)(II). 
In these proceedings, USCIS must determine whether the Beneficiary meets the requirements of the 
offered position certified by the DOL. USCIS must also determine whether the Petitioner and the 
Beneficiary qualify for the requested immigrant classification, including whether the Petitioner has 
the ability to pay the proffered wage. See, e.g, Tongatapu Woodcrafi Haw .. Ltd. v Feldman, 736 
F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own determination 
of the alien's entitlement to (the requested] preference status"). 
B. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. 
In this case, the labor certification states the proffered wage of the offered position of software 
developer as $110,000 per year. The petition's priority date is March 3, 2014. This is the date that 
the DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d) 
(explaining how to determine a petition's priority date). 
In determining ability to pay, we first examine whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the 
full proffered wage each year, we consider whether it generated sufficient annual amounts of net 
income or net current assets to pay any difference between the wages paid and the annual proffered 
wage. If the net income and net current asset amounts are insutlicient, we may also consider the 
overall magnitude of a petitioner's business activities. See Matter of Sonegawa. 12 I&N Dec. 612. 
614-15 (Reg'l Comm'r 1967). 1 
Here, the Petitioner asserts its employment of the Beneficiary since August 2007. The Petitioner 
states that another company temporarily employed him overseas from October 2014 to October 
2015, before he returned to work for the Petitioner in the United States. 
1 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g, River St. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Estrada- Hernandez v. Holder, I 08 F. Supp. 3d 936, 942-43 
(S.D. Cal. 2015); Rivzi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), (1/f'd, 627 Fed. App'x. 
292 (5th Cir. 20 15). 
2 
Matter of A-C-S-, Inc. 
The Petitioner submitted a copy of an Internal Revenue Service (IRS) Form W-2, Wage and Tax 
Statement, for 2014. The Petitioner asserts that the form demonstrates its payment to the 
Beneficiary that year of $84,936.13. 
The Director credited the payment to the Petitioner. But the Form W-2 states its issuance by a 
company with a different name and different federal employer taxpayer identification number than 
the Petitioner. Without explanation, the form does not demonstrate payments to the Beneficiary by 
the Petitioner. 
The record also contains copies of the Beneficiary's bi-weekly payroll records in 2014. The payroll 
records were issued under the names of both the Petitioner and the company listed on the Form W-2. 
But the payroll records do not explain the relationship between the Petitioner and the company. 
If the company listed on the Form W-2 and payroll records is a payroll service or professional 
employer organization that issued payroll and tax documentation in its name to the Petitioner's 
employees in 2014, the Petitioner must submit documentary evidence of that arrangement. Because 
the record does not document a relationship between the Petitioner and the company listed on the 
materials, the record does not establish the Petitioner's claimed payment to the Beneficiary in 2014. 
Thus, the record does not establish the Petitioner's ability to pay the proflered wage based on wages 
paid to the Beneficiary. 
The Petitioner submitted copies of it? federal income tax returns for 2014 reflecting annual net 
income of -$852,285. 2 This amount does not equal or exceed the annual protlered wage, and 
therefore the record does not establish the Petitioner's ability to pay the proffered wage in 2014 
based on net income. 
The Petitioner's tax return for 2014 reflects net current assets of-$118,907. Because the Petitioner's 
net current assets do not equal or exceed the annual profiered wage, the record does not establish the 
Petitioner's ability to pay in 2014 based on its net current assets. 
In response to the Director's request for-evidence, the Petitioner submitted an "Accountant's 
Compilation Report" and a letter from its accountant. The documents assert the Petitioner's 
generation of$137,623 in net income and $593,991 in net current assets in 2014. The accountant's 
letter states that the amounts differ from those listed on the Petitioner's 2014 tax return because the 
return was calculated using the /cash, rather than the accrual, accounting method. 3 
1 
The tax returns indicate the Petitioner's treatment as an S corporation. S corporations that derive income credits or 
deductions from sources other than their trades or businesses reconcile their incomes on Schedules K of their IRS Forms 
1120S, U.S. Income Tax Returns for S Corporations. See U.S. Internal Revenue Servs., Instructions to IRS Form 1120S, 
at https://www.irs.gov/pub/irs-pdf/i I I 20s.pdf (last visited Apr. 3, 20 17). In 2014, the Petitioner reported income 
adjustments from sources other than its business. We therefore consider lines I 8 of its Schedules K to reflect its annual 
net income amount in 20 I 4. 
3 
The cash method of accounting recognizes revenue upon its receipt, while the accrual method recognizes revenue when 
it is earned. See U.S. Internal Revenue Serv., Publication 538, Accounting Periods and Method\', at 
3 
Matter of A-C-S-, Inc. 
The accountant's report, however, is insufficiently reliable to demonstrate the Petitioner's ability to 
pay the proffered wage in 2014. The report and the accountant's letter indicate that the report was 
unaudited. The financial information in the report therefore represents the assertions of the 
Petitioner's management. The record does not contain sut1icient evidence to corroborate the 
financial information in the report. Also, because of the Petitioner's submission of its 2014 tax 
returns to the IRS, the financial information on the tax returns is more reliable than the accountant's 
unsupported amendments to that information. 
Thus, based on examinations of the Petitioner's payments to the Beneficiary and its annual amounts 
of net income and net current assets, the record does not establish the Petitioner's ability pay the 
proffered wage in 2014, the year of the petition's priority date. 
On appeal, the Petitioner asserts that the wages paid to the Beneficiary demonstrate its ability to pay the 
proffered wage in 2014. From the petition's priority date of March 3, 2014, until the Beneficiary 
temporarily stopped working in the United States in September 2014, the Petitioner contends that it paid 
him at the rate of the $110,000 annual proffered wage. 
As previously indicated, the Petitioner submitted copies of the Form W-2 and payroll records indicating 
the Beneficiary's receipt of $84,936.13 in 2014. Because the documents indicate their issuance by a 
company other than the Petitioner, however, the record does not establish the Petitioner as the 
Beneficiary's employer that year. The record therefore does not establish the Petitioner's claimed 
payment to the Beneficiary in 2014. 
Even if the Petitioner paid the Beneficiary the amount on the Form W-2, the record would not 
establish the Petitioner's ability to pay the proffered wage in 2014. The amount on the Form W-2 is 
$25,063.87 less than the annual proffered wage of $110,000. Neither the Petitioner's annual amount 
of net income or net currents asserts in 2014 equals or exceeds the $25,063.87 difference. 
Also, the record would not establish the Petitioner's ability to pay the prorated amount of 
$90,961.34, the portion of the 2014 proffered wage payable from the petition's March 3 priority 
date. 4 From March 3 until the end of 2014, the record indicates that the Petitioner paid the 
Beneficiary $68,287.94. 
The Petitioner further asserts on appeal that the Director neglected to consider the funds in its 
checking account when calculating its 2014 net current assets. The record contains copies of 2014 
checking account statements showing monthly end balances of at least $32,361.69. But the current 
assets listed on the Petitioner's 2014 tax return that we considered presumably include the funds in 
the Petitioner's checking account. As the Petitioner states, current assets generally include assets 
that may be liquidated within a year, such as cash. See Joel G. Siegel & Jae K. Kim, Barron's 
http://www.irs.gov/publications/p538/ar02.html (last visited Apr. 3, 20 17). 
4 
We calculated the prorated proffered wage of $90,961.34 by multiplying the weekly proffered wage of $2,115.38 by 
the 43 weeks that follow March 3 in 2014. 
4 
.
Matter of A-C-S-, Inc. 
Dictionary of Accounting Terms, 118 (3d ed. 2000). The record does not indicate that the current 
assets listed on the Petitioner's 2014 tax return excluded the funds in its checking account. The 
record therefore does not establish the availability of the funds in the checking account to pay the 
proffered wage in 2014. 
The Petitioner also submitted a copy of its federal income tax returns for 2015, showing a net 
income amount of$342,410. The net income amount for 2015 exceeds the annual proffered wage of 
$110,000. This would appear to demonstrate the Petitioner's ability to pay the proffered wage in 
2015. However, USCIS records indicate the Petitioner's filing of at least five I-140 petitions since 
this petition's priority date of March 3, 2014. 5 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files from that 
petition's priority date. 8 C.F.R. § 204.5(g)(2). The Petitioner in this case must therefore 
demonstrate its ability to pay the combined proffered wages of the Beneficiary and the beneficiaries 
of its other petitions filed after this petition's priority date. The Petitioner must demonstrate its 
ability pay the combined proffered wages from this petition's priority date until the other 
beneficiaries obtained lawful permanent residence, or until their petitions were denied, withdrawn, 
or revoked. See Patel v. Johnson, 2 F.3d Supp. 108, 124 (D. Mass. 2014) (upholding our denial of a 
petition where a petitioner did not demonstrate its ability to pay multiple beneficiaries). 
The record does not document the proffered wages of the Petitioner's other petitions, or whether it paid 
wages to any of the other beneficiaries. The record also does not indicate whether any of the other 
petitions were withdrawn, revoked, or denied, or whether any of the other beneficiaries obtained lawful 
permanent residence. Without this information, we are unable to determine the Petitioner's ability to 
pay the proffered wage. 
As previously indicated and as the Petitioner asserts on appeal, we may consider a petitioner's ability to 
pay a proffered wage beyond its financial results. Under Sonegawa, we may consider such factors as: 
the number of years a petitioner has conducted business; its number of employees; the growth of its 
business; the occurrence of uncharacteristic expenses or losses; its reputation in its industry; a 
beneficiary's replacement of a current employer or outsourced service; or other evidence of its ability to 
pay. 
In this case, the record indicates the Petitioner's continuous business operations since 1997 and its 
employment of 39 people. Copies of the Petitioner's federal income tax returns from 2010 through 
2015 show increases in its annual amounts of gross revenues and salaries/wages paid. The record also 
establishes the Petitioner's possession of a good reputation in its industry, indicating its service to 
nationally known clients and the receipt of numerous business awards. 
5 
USCIS records identify the five petitions by the following receipt numbers: 
and 
5 
,. 
Matter of A-C-S-, Inc. 
Similar to the petitioner in Sonegawa, which conducted business for 10 years "without any evidence of 
financial difficulties," Sonegawa, 12 I&N Dec. at 614, the Petitioner's tax returns indicate its 
profitability in all years from 2010 through 2015, except 2014. The Petitioner attributes its lackluster 
financial results that year to uncharacteristic expenses related to its acquisition of another company and 
its development of a new software product. 
The Petitioner submitted copies of a press release and an asset purchase agreement, indicating its 
acquisition of another technology company, effective November l, 2014, for $100,000 and monthly 
"earn-out" payments. But other evidence of record casts doubt on the claimed acquisition. Specifically, 
the press release, dated January 1, 2015, states that the entities will combine and that "[t]ogether, over 
150 employees will be dedicated to delivering solutions to meet clients' future needs." But the 
Petitioner's petition, which was dated and filed in April2015, states the company's employment of39, 
rather than 150, people. The Petitioner's tax returns also reflect a small drop in its annual amounts of 
salaries/wages paid from 2014 to 2015. 
Further, online government records indicate that the company the Petitioner purportedly acquired 
remained a separate, active corporation until September 23, 2016. See Fla. Dep't of State, Div. of 
Corps., Corporation Search, at http://search.sunbiz.org/Inquiry/CorporationSearch!ByName (last visited 
Apr. 3, 2017). In addition, the Petitioner's 2014 tax return does not refer to the acquisition or indicate 
the Petitioner's payment of a $100,000 purchase price. 
A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act, 
8 U .S.C. § 1361. The Petitioner in this case must therefore explain the discrepancies of record 
regarding its claimed acquisition in November 2014. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988) (requiring a petitioner to resolve inconsistencies of record by independent, objective evidence 
pointing to where the truth lies). 
The Petitioner also submits copies of client subscription agreements regarding an online health 
insurance platform that it developed. The Petitioner claims that software development and employee 
training expenses resulting from this new product contributed to its financial loss in 2014. 
But one of the client subscription agreements is dated February 22, 2013, indicating the product's 
development before 2014. Also, the website of the Petitioner's healthcare division indicates the 
development of the software product by at least 2012, when a research company noted its effectiveness. 
In addition, the Petitioner's 2014 tax return does not reflect inordinate amounts of software 
development or employee training expenses. The return contains a statement indicating $2,745,330 in 
combined expenses for "off shore development costs" and "employee, recruiting, training and 
development." The Petitioner's 2015 tax return reflects an even greater total of the same combined 
expenses ($3, 168,228), but records a $342,410 annual profit. The record therefore does not establish 
that software development and employee training expenses resulting from a new product contributed to 
the Petitioner's loss in 2014. Thus, unlike the petitioner in Sonegmva, the Petitioner in this case has not 
established the occurrence of uncharacteristic expenses or losses. 
6 
Matter of A-C-S-. Inc. 
Also unlike the petitioner in Sonegawa, the Petitioner here must demonstrate its ability to pay multiple 
beneficiaries. In addition, the record does not establish the Beneficiary's replacement of a current 
employee or outsourced service. Thus, based on the totality of the circumstances, the record does not 
establish the Petitioner's ability to pay the proffered wage pursuant to Sonegawa. 
II. CONCLUSION 
The record does not establish the Petitioner's continuing ability to pay the proffered wage from the 
petition's priority date onward. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-S-. Inc., ID# 205398 (AAO Apr. 11, 2017)