dismissed EB-3 Case: Software Development

IdentNj4ng data deleted to 
prevent cldy unwarranted 
iavasion Orpersd privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
 96 
FILE: Office: VERMONT SERVICE CENTER Date: MAY 2 5 2006 
EAC 03 108 50726 
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. $ 1153(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. 
~odert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Center Director (director), Vermont 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, s a software development and consulting firm. It seeks to employ the beneficiary 
permanently in the United States as a software engineer. As required by statute, Form ETA 750, Application for 
Alien Employment Certification approved by the Department of Labor (DOL), accompanied the petition. The 
director found 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 denied the petition accordingly. 
On appeal, the petitioner submits additional evidence and asserts that it has the financial ability to pay the 
proffered wage. 
Section 203@)(3)(A)(ii) of the Act, 8 U.S.C. tj 1153(b)(3)(A)(ii), provides employment based visa 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, 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. 
The priority date of the petition is the initial receipt in the DOL's employment service system. See 8 C.F.R. 
204.5(d). Here, Form ETA 750 was accepted for processing on May 23, 2001. The proffered wage as stated on 
Form ETA 750 is $65,605 per year. On Form ETA 750B, signed by the beneficiary on May 18, 2001, the 
beneficiary claims to have worked for the petitioner from November 2000 to the present. He also claims to have 
worked in India for a company with the same name from December 1998 until October 2000. 
On Part 5 of the petition, filed on February 18,2003, the petitioner claims to have been established in 1997, and to 
currently employ forty workers. Although the name of the petitioner is the same on the Immigrant Petition for 
Alien Worker (1-140) as the petitioner's name on the ETA 750, the address is different. 
In support of its ability to pay the proffered salary, the petitioner submitted copies of Form 1120, U.S. 
Corporation Income Tax Return for 2000 and 200 1. The filing company given on these tax returns bears the same 
name and address as those given for petitioner listed on the ETA 750, however, the identifying Internal Revenue 
Service (IRS) employer identification number of the 1-140 petitioner does not match the number given on the tax 
returns, thus raising the question whether the tax returns are those of the 1-140 petitioner. The record offers no 
clarification. It is incumbent on the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. See Matter ofHo, 19 I&N Dec. 582, 591-592 (BIA 1988). 
Page 3 
As indicated on the page 1 of the returns, the information presented is based on a fiscal year running from May 
1st until April 30~ of the following year. Thus, the 2000 tax return covers the period from May 1, 2000 until 
April 30, 2001 and the 2001 tax return presents data for the subsequent fiscal year ending April 30, 2002. The 
2001 tax return encompasses the priority date of May 23, 2001, and therefore will be considered more relevant 
than the earlier return. The returns contain the following information relevant to taxable income before the net 
operating loss (NOL) deduction' and net current assets. 
2000 200 1 
Taxable income before NOL deduction - $38,729 $ 34,184 
Current Assets (Schedule L) $577,593 $587,197 
Current Liabilities (Schedule L) $300,545 $968,492 
Net Current Assets $277,048 - $381,295 
As noted above, net current assets are the difference between the petitioner's current assets and current liabilities 
and represent a measure of liquidity and a possibIe available resource to pay a certified wage.' Besides net 
income, CIS will review a corporate petitioner's net current assets as an alternative method of examining its 
ability to pay a proffered wage. A corporation's year-end current assets are shown on line(s) l(d) through 6(d) of 
Schedule L and current liabilities are shown on line(s) 16(d) through 18(d). If a corporation's year-end net 
current assets are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the 
proffered wage out of those net current assets. 
The director denied the petition on July 16, 2004, noting that the petitioner could not meet the proffered wage of 
$65,605 out of its 200 1 net income of $34,184 and that its 200 1 current liabilities exceeded its current assets. The 
director also noted that as seven other 1-140s had been filed, the petitioner should establish its ability to pay all of 
these prospective employees. The director also questioned the amount of time that the petitioner claimed that the 
benefic'iary had worked for the petitioner (since 1998) compared to the date when it filed a Petition for 
Nonirnmigrant Worker (1-129) (2000). Finally, the director also questioned the petitioner's intent to employ the 
beneficiary permanently as a different employer had also filed an 1-129 on his behalf in 2004. 
On appeal, counsel points out that the beneficiary's employment with the petitioner from 1998 to 2000 actually 
occurred in India with its sister company, not with the petitioner. Counsel also notes that the beneficiary never 
worked for the other employer that submitted an 1-129 and that the beneficiary has continued to work for the 
petitioner as noted on pay statements submitted on appeal. Copies of fourteen 2004 payroll statements 
accompany the appeal. They cover a period from January 16~ to July 30,2004 and indicate that he had been paid 
a total of $40,833.38. A copy of a letter, dated July 15,2003, from Softalia-India reflects that the beneficiary also 
worked for it from October 2002 until July 2003. Counsel asserts on appeal that except for this period when the 
I 
 For the purpose of this review, taxable income before the net operating loss deduction will be treated as net 
income. 
2 
 According to Barron 's Dictionary of Accounting Terms 1 17 (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 as accounts 
payable, short-term payables, and accrued expenses (such as taxes and salaries). Id. at 11 8. 
Page 4 
beneficiary worked on a project in India for Softalia-India, he has been continuously employed by the petitioner 
in the United States since November 2000, and that he is paid a current salary of $70,000, which is well above the 
proffered salary. 
In support of the petitioner's ability to pay the proffered wage, counsel offers copies of various purchase orders 
and agreements as evidence of the petitioner's viability and ability to pay the proffered wage. It is noted that 
some of the documents reference "Softalia Ltd." and some refer to "Softalia Inc." as the vendor. Counsel further 
maintains that the petitioner has been paying the beneficiary the prevailing wage since hiring him in November 
2000. In support of this contention, counsel provides copies of the beneficiary's Wage and Tax Statements (W- 
2s) issued by the petitioner. They show the following wages paid to the beneficiary: 
Wages $57.612.52 $42,175 $32,083.37 
Counsel also contends that the director's reference to the ability of the petitioner to pay all beneficiaries is shown 
by the approval of these petitions based on the same grounds as is maintained here; that the petitioner' ability to 
pay the proffered wage is established by the actual payment of the certified salary during the entire labor 
certification 1 1-140 process. In support of this assertion, counsel submits copies of five notices of approval of I- 
140(s), issued by the director, with all showing 2001 priority dates. The notices indicate that three petitions were 
approved in 2001 and two were approved in 2003. Counsel also provides copies of W-2s for three of these 
beneficiaries. Counsel cites a 1992 AAO case (Matter of Quintero-Martinez) in support of the proposition that 
the ability to pay a proffered wage is shown when the petitioner has been paying the proffered wage all along. 
Insofar as identifying a petitioner's ability to pay a certified wage through the actual payment of such wage during 
a given period, counsel is correct. The evidence here, however, does not clearly establish that the petitioner has 
actually paid the beneficiary the proffered wage throughout the pertinent period. As referenced above, in 
determining the petitioner's ability to pay the proffered wage during a given period, Citizenship and Immigration 
Services (CIS) will first examine whether the petitioner may have employed and paid the beneficiary during that 
period. If the petitioner establishes by credible documentary evidence that it may have employed the beneficiary 
at a salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of its 
ability to pay the certified wage during a given period. To the extent that the petitioner paid wages less than the 
proffered salary, those amounts will be considered in calculating the petitioner's ability to pay the proffered wage. 
If any shortfall between the actual wages paid by a petitioner to a beneficiary and the proffered wage can be 
covered by either a petitioner's net income or net current assets during a particular period, the petitioner is 
deemed to have demonstrated its ability to pay a proffered salary 
As documented by the beneficiary's 2001 W-2, his wages of $57,612.52 were $7,992.48 less than the proffered 
wage. Nor did the petitioner pay the beneficiary the full proffered wage in 2002 or 2003 as indicated above. 
Further, the evidence shows that the petitioner did not employ the beneficiary for the full 2002 or 2003 year(s). 
Page 5 
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 also examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses. As mentioned above, CIS will 
also review a petitioner's net current assets as an alternative method of determining a petitioner's ability to pay a 
proffered salary as set forth on Schedule L of a corporate income tax retum. 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 Chang v. Thornburgh, 
7 19 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), afd, 703 F.2d 571 (7th Cir. 1983). Showing that wages paid to 
other employees reached a specified level or exceeded the proffered wage is not sufficient. 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. The court specifically rejected the argument that the Service should 
have considered income before expenses were paid, rather than net income. 
In this case, because of the use of a fiscal year running Erom May 1" until April 30~ of the following year, in order 
to more fairly determine whether any shortfall between the actual wages paid and the proffered wage could be 
covered by either the petitioner's net income or net current assets as shown on the corresponding tax return, the 
beneficiary's wages between these dates should be reviewed. As the petitioner's monthly payroll records for the 
beneficiary were not provided, the beneficiary's W-2s for 2001 and 2002 must be examined in order to compare 
his earnings to the figures reported on the petitioner's 2001 tax return. If reviewed as a monthly average, his 
earnings between May and December 2001 were approximately $38,408.32 (8 x $4,801.04). Because the 
evidence indicates that his 2002 W-2 reflects about nine months of employment with the petitioner, his earnings 
between January and May 1, 2002 were approximately $18,744.44 (4 x $4,686.1 1). Considered together, the 
petitioner paid the beneficiary approximately $57,152.76 between May 1, 2001 and April 30, 2002, or about 
$8,452.24 less than the proffered wage during this period. 
As the petitioner's net income of $34,184 could cover the $8,452.24 difference between the estimated actual 
wages paid to the beneficiary during the fiscal year between May 1, 2001 and April 30, 2002, the petitioner's 
ability to pay the proffered wage of $65,605 would ordinarily be demonstrated for this beneficiary for that period. 
Similar comparisons between the beneficiary's remaining 2002 and 2003 wages cannot be made here, because the 
petitioner's tax returns or audited financial statements for these periods have not been submitted to the record. 
Although the beneficiary's wages for 2004 seem to indicate that he is receiving the proffered wage, the regulation 
at 8 C.F.R. 8 204.5(g)(2) requires that a petitioner demonstrate its continuing ability to pay a certified wage 
beginning at the priority date. 
As mentioned above, this petitioner filed other 1-140s on behalf of multiple beneficiaries. In such a case, it must 
show that it has had sufficient financial ability to pay all the proffered wages begnning at the individual priority dates. 
Although counsel maintains that approvals for various beneficiaries with similar priority dates were based on the 
payment of actual wages, the evidence submitted here does not support such a theory or permit the AAO to determine 
what rationale and specific documentation supported these other petitions. Some of the petitions had varying 
approval dates and may have been reviewed with different supporting documentation, including actual payment of the 
proffered wage. 
The regulation at 8 C.F.R. 8 204.5(g)(2) requires that petitioner establish a continuing ability to pay the proffered 
Page 6 
wage. In view of the foregoing, the petition will be denied based on the petitioner's failure to demonstrate its 
continuing ability to pay the proffered salary to the beneficiary throughout the relevant period with emphasis on the 
months subsequent to April 2002 through 2003, as well as to other beneficiaries it may have sponsored with the same 
or similar priority date. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.