dismissed EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 17201979 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 27, 2021 
The Petitioner, a nonprofit provider of technology-related education and career services, seeks to 
employ the Beneficiary as a software developer. It requests his classification under the third-preference , 
immigrant visa category for members of the professions . See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(ii), 8 U.S.C . § 1153(b)(3)(A)(ii). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the proffered wage of the offered position. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See section 291 of the Act, 8 U.S.C. § 1361 (discussing the burden of proof); see also 
MatterofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard of proof) . Upon de 
nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must apply to the U .S. DepartrnentofLabor(DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for the offered position; and (2) the employment of a 
noncitizen in the position will not harm wages and working conditions of U.S . workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U .S.C. § 1182(a)(5) . 
Second, the employer must submit an approved labor certification with an immigrant visa petition to 
U .S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U .S.C. § 1154. 
Among other things, USCIS detennines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1) . 
Finally, if USCIS approves the petition, the noncitizen beneficiary 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. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. 
§ 204.5(g)(2). Evidence of ability to pay must generally include copies of annual reports, federal tax 
returns, or audited financial statements. Id. This petition's priority date is November 14, 2018, the 
date DOL accepted the accompanying labor ce1iification application for processing. See 8 e.F.R 
§ 204.5(d) ( explaining how to determine a petition's priority date). 
In determining ability to pay, users examines whether a petitioner paid a beneficiary the full proffered 
wage each year from a petition's priority date. If a petitioner did not annually pay the full proffered 
wage or did not pay a beneficiary at all, users considers whether the business generated annual 
amounts of net income or net cunent assets sufficient to pay any differences between the proffered 
wage and the actual wages paid to the beneficiary. Interoffice Memorandum from William R. Yates, 
USeIS Assoc. Dir. for Ops., HQOPRD 90/16.45, 2-3 (May 4, 2004), 
https://www.hsdl.org/?abstract&did=202 74 (last visited May 11, 2021 ). If net income and net current 
assets are insufficient, users may consider other factors affecting a petitioner's ability to pay the 
proffered wage. See Matter ofSonegmva, 12 I&N Dec. 612 (Reg'l eomm'r 1967). 1 
The accompanying labor certification states the proffered wage of the offered position of software 
developer as $62,461 a year. At the time of the appeal's filing, regulatory required evidence of the 
Petitioner's ability to pay the proffered wage in 2019 was not yet available. For purposes of this 
decision, we will therefore consider the company's ability to pay only in 2018, the year of the petition's 
priority date. 2 
The Beneficiary and a manager of the Petitioner stated that the organization has employed the 
Beneficiary since September 2014. The Petitioner, however, did not submit evidence that it paid the 
Beneficiary in 2018. Thus, based solely on wages paid, the Petitioner has not demonstrated its ability 
to pay the proffered wage in the year of the petition's priority date. 
The Petitioner submitted copies of its federal tax information return 3 and audited financial statements 
for 2018. Both sets of documents, however, indicate that the organization's expenses exceeded its 
revenues. The financial statements also reflect a negative amount of net cunent assets. The Petitioner 
therefore has not demonstrated its possession of sufficient amounts of net income or net cunent assets 
to pay the proffered wage in 2018. Thus, based on examinations of wages paid, net income, and net 
cunent assets, the record does not establish the Petitioner's ability to pay the proffered wage in the 
year of the petition's priority date. 
1 Federal courts haveupheld USCTS' methodofdetermininga petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (I st Cir. 2009); Rivzi v. Dep 't of Homeland Sec., 3 7 F. Supp. 3d 870, 
883-84 (S.D. Tex.2014),aff d, 627Fed.App'x. 292(5thCir. 2015). 
2 In any future filings in this matter, the Petitioner must submit copies of annual reports, federal tax returns. or audited 
financialstatementsfor2019 and 2020. Scc8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its ability to pay 
a proffered wage "continuing until the beneficiary obtains lawful permanent residence"). 
3 Although nonprofits generally need not pay income taxes, tax-exempt organizations with gross receipts of at least 
$200,000, or total assets of at least $500,000, must annually file federal returns containing financial information about 
themselves. See U.S. Internal Revenue Serv. (IRS), "Instructions for Form 990 Return of Organization Exempt fium 
Income Tax," 2 https://www.irs.gov/pub/irs-pdf/i990.pdf(last visited May 11, 2021). 
2 
As the Petitioner argues on appeal 4 and as previously indicated, we may consider additional factors 
affecting a business's ability to pay. See Matter of Sonegawa, 12 I&N Dec. at 614-15. Additional 
factors may include: the length of time the organization has operated; its number of employees; growth 
of its operations; its incurrence of uncharacteristic losses or expenses; its reputation in its industry; 
and a beneficiary's replacement of another worker or outsourced service. Id. 
The record indicates the organization's continuous operations since 1992, its employment of more 
than 80 people, and its generation of annual gross revenues exceeding$ 8 million. The Petitioner states 
that it has met all its financial obligations, including payment of employee wages. The organization 
also states that, as a nonprofit, "it does not need to pay dividends or tum a profit to stay in business." 
Unlike the petitioner in Sonegawa, however, the Petitioner here has not demonstrated its possession 
of an outstanding reputation in its industry or that uncharacteristic losses or expenses prevented it fmm 
demonstrating its ability to pay the proffered wage. Also, the record does not indicate the 
Beneficiary's replacement of an existing worker or outsourced service. Thus, based on a totality of 
the circumstances under Sonegawa, the Petitioner has not established its ability to pay the proffered 
wage. 
The Petitioner argues that it had "sufficient net assets" to pay the proffered wage in 2018. Both the 
Petitioner's tax return and audited financial statements indicate unrestricted net assets 5 at the end of 
2018 of $1,630,804, far exceeding the annual proffered wage of $62,461. Net assets, however, may 
include current assets, long-term assets, or both. Current assets are assets that can be converted to 
cash within one year. Joel G. Siegel & Jae K. Shim, Barron's Dictionary of Accounting Terms, 117 
(3d ed. 2000). Therefore, when determining a petitioner's ability to pay a proffered wage based on its 
assets in a given year, USCIS focuses on cmrent assets. The record neither details the Petitioner's net 
assets in 2018 nor indicates whether they were current or long-term in nature. Thus, the record does 
not demonstrate the Petitioner's claimed possession of sufficient net assets to pay the proffered wage 
in2018. 
The Director noted that, from July 2019 to October 2019, the Petitioner paid the Beneficiary $2,293.10, 
biweekly, or $59,620.90 a year. The Petitioner argues that its payment of the Beneficiary at less than 
the annual proffered wage rate of $62,461 is not "a negative factor." The organization notes that it 
need not pay him the proffered wage until he obtains lawful permanent residence. See, e.g., Matter of 
Rajah, 25 I&N Dec. 127, 132 (BIA 2009) (requiring petitioners to employ their beneficiaries only 
after the noncitizens gain lawful admissions to the United States as permanent residents). 
The Petitioner need not immediately pay the Beneficiary the proffered wage. But the organization 
must still demonstrate its ability to pay the proffered wage "at the time the [petition's] priority date is 
established and continuing until the beneficiary obtains lawful permanent residence." 8 C.F.R. 
§ 204.5(g)(2). Thus, although correct, the Petitioner's argument is unavailing. The company's 2019 
4 The Petitioner's Form I-290B, Notice ofAppealor Motion, states the basis of the organization's appeal. The formaro 
indicates that, within 30 days ofthe appeal's filing, the organization would submit a ,vritten brief, additional evidence, or 
both. As of this decision's date, however, we have not received any further submissions from the Petitioner. 
5 Unrestricted net assets reflect donations to nonprofit organizations without donor-imposed limitations on the assets' use. 
Nonprofits may use unrestricted net assets for general expenses or any legitimate purposes. Sec IRS, "Instructions for 
F01m 990," PartX, Line 27, https://www.irs.gov/instructions/i990#idml39918045411632(last visited May 27, 2021). 
3 
payment of the Beneficiary at less than the proffered wage rate is not improper. But the compensation 
does not demonstrate the organization's ability to pay the proffered wage in 2018 or, for that matter, 
2019. 
For the foregoing reasons, the Petitioner has not demonstrated its required ability to pay the proffered 
wage of the offered position from the petition's priority date onward. We will therefore affirm the 
petition's denial. 
III. THE REQUIRED EXPERIENCE 
Although unaddressed by the Director, the Petitioner also has not demonstrated the Beneficiary's 
possession of the minimum employment experience required for the offered position. A petitioner 
must demonstrate a beneficiary's possession of all DOL-ce1iified job requirements of an offered 
position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting 
Reg'l Comm'r 1977). As previously indicated, this petition's priority date is November 14, 2018. 
When assessing a beneficiary's qualifications for an offered position, USCIS must examine the job­
offer portion of an accompanying labor ce1iification to detennine the position's minimum job 
requirements. USCIS may neither ignore a ce1iification term nor impose additional requirements. 
See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the 
authority for setting the con tent of the labor certification") ( emphasis in original). 
The accompanying labor certification states the minimum requirements of the offered position of 
software developer as a bachelor's degree in computer science or software engineering, plus one year 
of experience in the job offered or in "Web Development" or a related field. Also, pa1i H.14 of the 
labor certification, "Specific skills or other requirements," states that the job requires"[ e ]xperience 
with enterprise-level application and database design, Angular JS, PHP, MySQL, Linux, Apache on 
Linux, HTML, XHTML, XML, CSS, and Java Script and the security issues that pertain to web 
development, writing/modifying SQL queries, and common design patterns " 
On the labor certification, the Beneficiary attested that, by the petition's priority date and his start date 
with the Petitioner in the offered position, he gained more than two years of qualifying experience in 
the United States, as follows: 
• About 25 months as a full-time web applications developer for the Petitioner, from September 
2014 through September 2016; 
• About four months as a part-time information technology (IT) intern for an on line auction site, 
from May 2014 through August2014; and 
• About 13 months as a part-time web developer for a provider of educational IT development 
services, from March 2013 through April 2014. 6 
6 For labor certification purposes, part-time, qualifying experience equals less than full-time, qualifying experience. 
Valuation of part-time experience requires consideration of the number of weekly hours worked. See Matter of I Grand 
Express, 20 l 4-PER-00783, slip op. at *4 (BALCA Jan. 16, 2018) (equating 29 .5 months of part-time, 25-hour-a-week 
experience to 18.4 months of full-time, 40-hour-a-week experience by multiplying the employment's duration (29.5 
months) by 0 .625, representing 2 5 /40 weekly hours). 
4 
To support claimed qualifying experience, a petitioner must submit letters from a beneficiary's former 
employers. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letters must include the names, addresses, and titles of 
the employers and descriptions of the beneficiary's experience. Id. The Petitioner provided a letter 
from one of its managers and a printout of an e-mail message from a systems architect at the online 
auction site where the Beneficiary purportedly served as an intern. 
A labor ce1iification employer cannot rely on experience that a noncitizen gained with it, unless they 
gained the experience in a job substantially different than the offered one or the employer can 
demonstrate the impracticality of training a U.S. worker for the offered position. 20 C.F.R 
§ 656.17(i)(3). The Petitioner's letter demonstrates that the Beneficiary's prior work for the 
organization as a web applications developer required performance of the offered position's job duties 
less than 50% of the time. The Petitioner has therefore demonstrated that the Beneficiary gained more 
than two years of full-time experience with it in a position substantially different than the offered one. 
See 20 C.F.R. § 656.17(i)(5)(ii) (defining a substantially different position). 
The Petitioner's letter, however, does not demonstrate that the Beneficiary gained quaftfying 
experience with the organization. The letter states the Beneficiary's experience with AngularJS, 
JavaScript, PHP, and MySQL. But the letter does not specify his experience with other required 
technologies and skills listed in part H.14 of the labor ce1iification, including: enterprise-level 
application and database design; Linux; Apache on Linux; HTML; XHTML; CSS; the security issues 
that pertain to web development; writing/modifying SQL queries; or common design patterns. 
Similarly, the e-mail message from the systems architect does not establish the Beneficiary's part-time 
experience with the remaining, required technologies. The message indicates the Beneficiaiy's 
experience at the online auction site with "SQL Database Queries." But the message neither specifies 
that the Beneficiary wrote or modified such queries nor that he gained experience with enterprise-level 
application and database design, Linux, Apache on Linux, HTML, XHTML, CSS, the security issues 
that pertain to web development, or common design patterns. Also, the e-mail message is 
insufficiently reliable. The record lacks corroborating proof of the system architect's purported 
employment by the online auction site during the Beneficiary's claimed internship from May 2014 
through August 2014. The message also does not explain how the systems architect knows what the 
Beneficiary did as an intern. 
For the foregoing reasons, the Petitioner has not demonstrated the Beneficiary's qualifying experience 
for the offered position. In any future filings in this matter, the organization must submit additionaL 
re liable evidence estab lishingthe Beneficiary's experience with all the required technologies and skills 
listed in part H.14 of the labor certification. 
IV. CONCLUSION 
The record on appeal does not demonstrate the Petitioner's ability to pay the proffered wage from the 
petition's priority date onward. We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
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