dismissed EB-3 Case: Software Development

PUBLIC COPY 
i@fying data deleted to 
prmnt dearly mwmanted 
invasion of ~d privacy 
U.S. Department of Homeland Security 
 I 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
S. Citizenship 
and Immigration 
FILE: ~ 
LIN 05 018 51615 
I Office: NEBRASKA SERVICE CENTER 
 Date: APR 3 0 2007 
PETITION: Immigrant petition for Alien Worker as a Slulled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. $j 1 1 53(b)(3) 
ON BEHALF OF PETITIONER: 
IN S'I'K U C'I'ION S : 
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, Service Center, and is now before 
the Adrmnistrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a software development and consulting business. It seeks to employ the beneficiary 
permanently in the United States as a programmer analyst. As required by statute, the petition is accompanied 
by a Form ETA 750, Application for Alien Employment Certification, approved by the Department of Labor. 
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 based on the beneficiary's 
wages, the petitioner's net income or the petitioner's net current assets for tax year 2003 and continuing until 
the beneficiary obtained legal residency. The director rejected the use of the petitioner's amended 2003 and 
2004 tax returns as the new accounting system was not in effect at the time the petition was initially filed, and the 
record did not indicate that the IRS had accepted the new accounting methodology and amended returns. The 
director also noted that the petitioner had filed 13 1-140 petitions since January 1, 2003 and 39 1-129 petitions 
since January 1, 2003 that would also affect the petitioner's ability to pay the proffered wage. The director 
denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural hstory will be made only as necessary. 
As set forth in the director's denial, the single issue in this case is whether or not the petitioner has the ability 
to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent 
residence. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(ii), 
provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees 
and are members of the professions. 
The regulation 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, which is the date the Form ETA 750 Application for Alien Employment Certification, was accepted for 
processing by any office within the employment system of the U.S. Department of Labor. See 8 C.F.R. 
5 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications 
stated on its Form ETA 750 Application for Alien Employment Certification as certified by the U.S. Department 
of Labor and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. 
Cornm. 1977). 
Here, the Form ETA 750 was accepted on October 13, 2003. The proffered wage as stated on the Form ETA 
750 is $62,000 per year. The Form ETA 750 states that the position requires four years of college with a 
bachelor's degree or foreign academic equivalent in computer science or mechanical engineering or related 
fields. The ETA 750 specifies one year of work experience in the proffered position or one year of experience 
in a related occupation of programmer, programmer analyst, or related experience. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, inc 
 perly submitted upon appeal1. 
counsel submits a second letter from 
 Columbus, 0hio.2 In his letter, 
examines when permission is re uired from the IRS for changes in methods of accounting practices for tax 
retums, and other related issues.bfurther notes that the director's decision on the instant petition 
established that Citizenshp and Immigration Services (CIS) accepts that only the prorated portion of the 
annual proffered wage need be demonstrated in the first year of the priority date. also states that 
the difference in proffered wages and act a1 wa es for tax years 2003, 2004 and the 2005 year to date are 
$240,489, $142,675, and $20,070. hen notes that the petitioner's net income, as indicated by 
Schedule M-1 and the petitioner's net current assets documented on the petitioner's Schedules L, were 
$123,774 and $338,627 respectively in tax year 2003, and $102,568 and $247,864 respectively in 2004. 
states that in tax years 2003 and 2004 the petitioner's net current assets were more than the 
cumulative difference for all the beneficiaries combined, and that the available cash on hand for tax year 
2005 to date is greater than the cumulative difference. 
Counsel submits a one page document entitled "ability to pay calculations" that examines the wages of seven 
individuals with regard to priority dates, proffered wages, prorated wages for priority years, wages paid in 
2003 (based on prorated wages), wages paid in 2004 and wages as of 2005. Finally on appeal, counsel 
submits the beneficiary's wage slip for October 7, 2005 that indicates a biweekly wage of $2,500, with year- 
to-date wages of $38,92 1.75. 
The record also contains the petitioner's Forms 1120 for tax years 2003 and 2004. An accompanying Form 
1120X for both documents indicates that amended tax returns was filed with the IRS on June 29,2005. In the 
Forms 1120X, it is indicated that changes were made to Schedules L, M-1 and M-2. The two amended tax 
returns indicate the petitioner had taxable income before net operating loss deduction and special deductions 
of $8,117 in 2003 and of $8,678 in tax year 2004.) 
In an accompanying letter written b 
 hat the petitioner submitted in response to the director's 
request for hrther evidence, 
 explained that the petitioner had changed its accounting basis and 
now includes the "hybrid" me fl o o accounting, as illustrated by the amended 2003 and 2004 Forms 1 120. 
1 
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. § 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, 1 9 I&N Dec. 764 (BIA 1 98 8). 
2 
 The state of Ohio Iicensing center indicates that 
w 
CPA license expired on December 3 1,2005. 
See https:Nlicense.ohio ~gov/lookup/default .a (Avai a e as o April 12,2007). 
3 
 The original tax retums for tax years 2003 and 2004 to which 
 referred in the petitioner's 
response to the director's request for further evidence are not found in the record. The director, in his 
decision, also referred to both the original tax returns and the amended tax returns. The AAO has reviewed 
the petitioner's original tax return for tax year 2003 that was contained in another 1-1 40 petition submitted by 
the petitioner, and will comment on these retums further in these proceedings. 
then stated that in the first year in whch the priority date is established, the petitioner only needs 
to demonstrate 
 e ability toppay the wages die to beneficiary from the priority date to the end of 
1 year. 
 then analyzed what he described as published AAO decisions issued in 2004.mY 
included Internet excerpts of the contents of the unidentified AAO decisions, and stated that the 
majority of them only required the petitioner to demonstrate ability to a the beneficiary's wages as of the 
priority date to the end of the priority year, in the priority year.'h~also apparently prepared a 
document entitled "Ability to Pay Calculations" that examines the priority dates; the proffered wages; the 
prorated proffered wagesithe actual wages paid in 2003 and 2004, Ad, finally 
 ce between the 
prorated salaries and the actual wages for 2003 and 2004 for six beneficiarie~.~ 
 refers to a CIS 
interoffice memo written by William Yates (the Yates memo) in support of his assertion that items such as net 
income and net current assets can be examined to determine the petitioner's ability to pay the proffered 
wage!   in all^ - in reference to the amended tax returns submitted to the record states that the best 
measure of the petitioner s nrofitabilitv is line 1. Schedule M-1, of the petitioner's tax return. For tax year 
- -- 
2003 and 200- escribed ;he petitioner's net income based on line 1, Schedule M, as $123;774 
and $102,568 also stated that based on the amended tax returns, the petitioner's net current assets 
for tax year 2003 were $338,627 and for tax year 2004 were $247,864. 
The record also contains Form 941, Employer's Quarterly Federal Tax Return for the fust quarter of 2005, 
along with W-2 Forms for the beneficiary and other employees for tax years 2003 and 2004. These documents 
indicate the petitioner paid the beneficiary $15,600 in 2004. Counsel also submitted the petitioner's Form 941 
for the fust quarter of 2005, which indicated the petitioner had eleven employees, with combined wages, tips 
and other compensation of $164,246.15. The record also contains a one-page breakout of employee 
information apparently generated by the petitioner for the first quarter of 2005 that lists thirteen employees 
and their quarterly salaries. The record also contains the beneficiary's individual income tax return, Form 
1040, for tax year 2004 that indicated the beneficiaty received wages or a salary of $44,836 in tax year 2004. 
The record does not contain any other evidence relevant to the petitioner's ability to pay the wage. 
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 in 1998, to have a gross annual income of 
approximately $500,000, and to currently employ twelve workers. On the Form ETA 750B, signed by the 
beneficiary on October 9,2003, the beneficiary did not claim to have worked for the petitioner. 
On appeal, counsel asserts that the director erred in stating 
 nded tax returns were rejected as 
credible evidence. Counsel states that the second letter from 
 explains that according to tax law, 
the petitioner did not need permission to amend its tax returns for the purpose of calculating taxable income, 
and that CIS cannot question the amended returns for the petitioner as any amended tax return submitted to 
the IRS supersedes previous tax retums. Counsel states that the returns were amended to clarify the issu 
the petitioner's ability to pay the proffered wages, not to confuse this issue. Counsel also notes that 
4 
 In other words, states that the petitioner may pro-rate the wages to be paid to the beneficiary 
during the priority date year to only include the wages as of the priority date and to the end of the year. 
The beneficiary is one of the six employees identified in this document. 
6 
 Memorandum from William R. Yates, Associate Director For Operations, Determination of Ability to Pay 
under 8 CFR 204.5(&(2), HQOPRD 90h6.45, (May 4,2004). 
provides a table to calculate the petitioner's ability to pay the petitioner's 1-140 petitions that have 
been denied, up to tax year 2005. 
Counsel also asserts that the director did not review any of the financial information provided in response to 
the director's request for Wher evidence. Counsel states that the petitioner submitted W-2 forms for all its 
employees which indicates the petitioner is a financially viable company with the ability to pay the proffered 
wage. Counsel states that the CIS did not mention these W-2 forms in its decision, nor did it address the fact that 
the petitioner had paid over $591,000 in wages in tax year 2004. 
Counsel also states that the petitioner's 13 1-140 petitions and 39 H-1Bs submitted to CIS in the last two years 
are hardly excessive. With regard to the H-1B petitions, counsel states that many of these petitions were for 
extensions for the same employees, and that the petitioner, like other companies in its competitive business, files 
more H-1B petitions than the number of individuals that actually join and stay at the company. Counsel notes that 
the petitioner provided the beneficiary's most recent pay voucher on appeal. Counsel states that the beneficiary 
presently earns an income at a rate equal to $65,000 a year, which is more than the proffered wage. 
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 lawfbl 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. Comrn. 1977). See also 8 C.F.R. 8 204.5(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. 
6 12 (Reg. Comrn. 1967). 
in his letters submitted to the record refers to the Yates memo which refers to the beneficiary's 
wages, and the petitioner's net income and net current assets as the three criteria by which CIS adjudicators 
can evaluate the petitioner's ability to pay the proffered wage. The AAO consistently adjudicates appeals in 
accordance with the Yates memorandum, and will do so in these proceedings in its examination of the 
petitioner's ability to pay the proffered wage. 
also referred to the use of prorated wages when calculating the petitioner's ability 
proffered wage. In his letter submitted in response of the director's request for Wher evidence, 
refers to excerpts taken fi-om the Internet of several AAO decisions that analyzed whether a p 
pay the proffered wage if prorated wages during the priority date year were considered. ,,ii!!F 
assertions are not persuasive. First, although 
 does describe the decisions to which he refers as 
"published," he does not provide any published citations. 
 While 8 C.F.R. § 103.3(c) provides that precedent 
decisions of CIS are binding on all its employees in the administration of the Act, unpublished decisions are not 
similarly binding. Precedent decisions must be designated and 
 bound volumes or as interim 
decisions. 8 C.F.R. fj 103.9(a). Furthermore the excerpts to which 
 refers do not appear to use the 
concept of prorated wages in their denial of the referenced petitions, but rather mentioned the issue as a 
hypothetical issue. Third, with regard to the issue of prorated wages, we will not consider 12 months of income 
towards an ability to pay a lesser period of the proffered wage any more than we would consider 24 months of 
income towards paying the annual proffered wage. While CIS 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 for the beneficiary. 
 calculations contained 
in the initial document "Ability to Pay Calculations" submitted to the record in response to the director's 
request for further evidence identify four claimed beneficiaries who did not work in tax year 2003, and does 
not document any 
 ds of employment worked by the remaining two beneficiaries. The assertions 
of counsel and of 
 ith regard to the claimed proffered wages and prorated wages earned by other 
beneficiaries do not constitute evidence. The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Finally the beneficiary stated in the Form ETA 750 that he had not worked for the petitioner as of the date he 
signed the form in October 2003, and the record contains no evidence that the beneficiary actually work for the 
petitioner during the 2003 priority year. Thus, the question of examining the prorated wages paid to the 
beneficiary in tax year 2003 is moot. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner employed and paid the beneficiary during that period. If the 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 has not established that it employed and paid the beneficiary wages in 2003, the 
priority year. It has established that it employed and paid the beneficiary $15,600 'in tax year 2004. The 
petitioner also submitted a pay slip for the beneficiary for pay period May 23, 2005 to June 5, 2005 with a 
biweekly wage of $2,500 noted on the document. Thls pay rate is slightly higher than the proffered wage,7 
and along with the beneficiary's later pay stub submitted on appeal, appears to establish that during tax year 
2005, the petitioner paid the beneficiary a wage equal to or greater than the proffered wage? Nevertheless, a 
petitioner must establish the elements for the approval of the petition at the time of filing. A petition may not 
be approved if the beneficiary was not qualified at the priority date, but expects to become eligible at a 
subsequent time. Matter of Katigbak, 14 I&N Dec. 45,49 (Cornm. 1971). The petitioner did not establish that 
it paid the beneficiary the proffered wage as of the 2003 priority date and to the present time. Thus the 
petitioner cannot establish its ability to pay the proffered wage based on wages paid to the beneficiary as of 
the priority date and continuing. Thus the petitioner has to establish its ability to pay the entire proffered wage 
in tax year 2003 and the difference between the beneficiary's actual wages and the proffered wage in 2004, 
namely, $47,400. 
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 next examine the net income figure reflected on the petitioner's 
federal income tax return, 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. 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. 
7 
 The biweekly wages of $2,500 multiplied by 26 weeks equals $65,000. The proffered wage is $63,000. 
8 
 It is noted that the record was closed as of the petitioner's response to the director's request for further 
evidence on July 13, 2005, and the petitioner could not have submitted its tax return for tax year 2005. The 
AAO will not examine Wher the petitioner's ability to pay the proffered wage in 2005. 
In K. C. P. Food Co., Inc. v. Sava, 623 F. Supp. at 1 084, 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. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income Jigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537. 
Although counsel, the director, and Mr. Yousaf refer to the petitioner's amended tax returns, and indicate that 
previous tax returns exist, the record in the instant petition only contains the petitioner's amended returns for 
2003 and 2004. The AAO, however, has examined the petitioner's original tax return for tax year 2003 in 
another 1-140 petition filed by the petitioner, and will comment on the changes in these amended tax returns, 
as appropriate. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) states: "Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition." The AAO views the petitioner's change of accounting 
practices and the subsequent amended tax returns as questionable, specifically with regard to the significant 
increases in the petitioner's net current assets based on the changed accounting procedures and reallocation of 
assets. A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). It is also 
noted that the IRS requires Form 3 1 15 to be filed when switching accounting methods. The record does not 
reflect that the petitioner filed any such document. These factors raise questions as to the veracity of the 
petitioner's amended tax returns. Thus, the AAO gives no weight to the amended tax returns. Thus, the 
petitioner has not submitted sufficient documentation to establish that it has sufficient net income or net 
current assets to pay the proffered wage. 
For illustrative purposes only, the AAO will examine the amended tax returns submitted to the record. First, it 
is noted that the AAO does not consider line 1, Schedule M in its deliberations with regard to petitioners' net 
- 
income, as suggested by 
d 
The petitioner's net income is its taxable income before NOL deduction 
and special deductions, as reporte on Line 28 of the Form 1 120. 
The tax returns demonstrate the following financial information concerning the petitioner's ability to pay the 
proffered wage of $63,000 per year from the priority date: 
In 2003, the Form 1120 stated a net income9 of $8,117. 
9 
The petitioner's net income is its taxable income before NOL deduction and special deductions, as reported 
In 2004, the Form 1 120 stated a net income of $8,678. 
Therefore, for the years 2003 and 2004, the petitioner did not have sufficient net income to pay the proffered 
wage. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. As stated previously, the AAO does not view the petitioner's amended tax 
returns as sufficient evidence as to the petitioner's net income or net current assets. The AAO will only 
examine the petitioner's net current assets in its amended returns for illustrative purposes. 
The petitioner's total assets include depreciable assets that the petitioner uses in its business. 
 Those 
depreciable assets will not be converted to cash during the ordinary course of business and will not, therefore, 
become funds available to pay the proffered wage. Further, the petitioner's total assets must be balanced by 
the petitioner's liabilities. Otherwise, they cannot properly be considered in the determination of the 
petitioner's ability to pay the proffered wage. Rather, CIS will consider net current assets as an alternative 
method of demonstrating the ability to pay the proffered wage. 
Net current assets are the difference between the petitioner's current assets and current liabilities.'' 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. With regard to the petitioner's 
original tax return for tax year 2003, the petitioner did not list any assets on Line 2, item a or b, on Schedule 
L, trade notes and accounts receivable, and less allowance for bad debts; however in its amended tax return 
for 2003, the petitioner listed $218,500 as trade notes and accounts receivables, and $218,500 as less 
allowance for bad debts, and in its amended 2004 tax returns, listed $209,890 on its Schedule L, line 2a, as 
trade notes and accounts receivables, and the same amount on line 2b, allowance for bad debts. Both of these 
figures significantly changed the petitioner's current assets for both years. For example, prior to the 
amendment of the petitioner's 2003 tax return, the petitioner's net current assets for tax year 2003 were 
$1 3,127. As stated previously such significant increases in the petitioner's net current assets do raise 
questions as to the veracity of the amended tax return. The tax information contained on the two amended tax 
returns with regard to the petitioner's net current assets is as follows: 
The petitioner's net current assets during 2003 were $338,627. 
The petitioner's net current assets during 2004 were $227,93 1. 
Therefore, for the year 2003, the petitioner had sufficient net current assets to pay the beneficiary's entire 
proffered wage, while in tax year 2004, the petitioner had sufficient net current assets to pay the difference 
between the beneficiary's actual wages and the proffered wage, namely $47,400. However, as the director 
correctly pointed out in his decision, the petitioner has filed other Immigrant Petitions for Alien Worker (Form 
on Line 28 of the Form 11 20. 
10 
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 accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 1 18. 
I- 140) for an undetermined number of beneficiaries.' ' Therefore, the petitioner must show that it had sufficient 
income to pay all the wages at the priority date. The petitioner, with statements uncorroborated by evidentiary 
documentation, has not established that it had the ability to pay the entire proffered wage for all beneficiaries 
whose priority date w 
 2003. While the petitioner submitted W-2 forms for two employees for 
tax year 2003 listed on 
 unsubstantiated list of beneficiaries and wages, these wages for 2003 totaled 
$76,021, with an additional $305,979 needed to pay the proffered wages of other beneficiaries listed who did not 
work for the petitioner in tax year 2003. without moreclarification as to any other beneficiaries and proffered 
wages, this sum does not appear sufficient to pay the proffered wages of the beneficiary and all other beneficiaries 
for whom the petitioner submitted petitions.'2 On appeal, counsel states that the numerous petitions submitted to 
CIS for 1-140 and 1-129 beneficiaries are hardly excessive and that many of the 1-129 petitions are for H-1B 
extension petitions. Nevertheless, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. $ 1361. As stated previously the petitioner has not satisfactorily answered the questions raised with 
regard to the two sets of tax returns submitted to the record. See Ho. Furthermore the petitioner has not 
satisfactorily identify the actual number of beneficiaries for whom petitions have been filed, and for which the 
petitioner would have to pay the proffered wage during the 2003 priority year and onward. 
Therefore, from the date the Forrn ETA 750 was accepted for processing by the U. S. Department of Labor, 
the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage as 
of the priority date through an examination of wages paid to the beneficiary, or its net income or net current 
assets. 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as 
submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day 
the Form ETA 750 was accepted for processing by the Department of Labor. 
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered 
wage beginning on the priority date. The burden of proof in these proceedings rests solely with the petitioner. 
Section 291 of the Act, 8 U.S.C. $ 136 1. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
l1 It is noted that the director in his decision stated that the petitioner had filed 13 1-140 petitions and 39 I- 
129 petitions, while at the most the petitioner has provided documentation on wages paid to 15 employees in 
tax year 2003 and 2004. Thus far, the petitioner has provided tax documentation on 11 employees in the first 
quarter of 2005. 
12 
 It is noted that the list of seven beneficiaries presented by counsel and the petitioner in its response to the 
director's request for further evidence as pending applications with priority year designation of 2003 is 
significantly smaller than the 13 1-140 petitions and 39 1-129 petitions noted by the director in his decision.