dismissed EB-3 Case: Software Development

identifjring &~a deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
APR 2 0 2007 
FILE: Office: TEXAS SERVICE CENTER Date: 
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. 5 1 153(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. 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Acting Director (Director), Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a computer software development company. It seeks to employ the beneficiary permanently 
in the United States as a mechanical equipment sales engineer (engineering sales consultant). As required by 
statute, the petition is accompanied by a Form ETA 750, Application for Alien Employment Certification, 
approved by the Department of Labor (DOL). 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. 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 history will be made only as necessary. 
As set forth in the director's August 5, 2005 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)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(i), 
provides for the granting of preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act, 8 U.S.C. 5 1153(b)(3)(A)(ii), provides for the granting of 
preference classification to qualified immigrants who hold baccalaureate degrees and who are members of the 
professions. 
The regulation 8 C.F.R. 
 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. 
Comm. 1977). 
Here, the Form ETA 750 was accepted on February 4, 2004. The proffered wage as stated on the Form ETA 
750 is $72,000 per year. The Form ETA 750 states that the position requires four years of college studies, a 
bachelor of science degree in mechanical engineering and three years of experience in material handling, 
software development, and engineering in a multi-national environment. 
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, including new evidence properly submit e u on appeal1. On appeal counsel 
submits and resu davit from the chief financial officer of & , financial statements ending 
June 30, 2005 fo and its subsidiaries, letter of credit from a bank, the petitioner's organizational 
documents, contribution agreement and operating agreement, payroll records and pay stubs pertinent to the 
and its subsidiaries for 2004 and 2004 federal tax 
Other relevant evidence in the record includes consolidated 
financial statements for 
 for 2002 and 2003. 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 limited liability company 
(LLC). On the petition, the petitioner claimed to have been established in 1990, and to currently employ 26 
workers. The petitioner did not provide information about its gross annual income and net annual income on 
the petition. On the Form ETA 750B signed by the beneficiary on January 23, 2004, he claimed to have 
worked for the petitioner since August 2000. 
On appeal, counsel asserts that the petitioner is a wholly-owned subsidiary of ]and the consolidated 
financial statements of and its subsidiaries for 2004, 2003 and 2002 establish that the petitioner 
has the ability to pay through Counsel also asserts that the ~etitioner's abilitv to oav was 
established with 2004 federal tax return for 
petitioner. 
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 lawhl 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 fill, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). See also 8 C.F.R. 8 204.5(g)(2). In 
evaluating whether a job offer is realistic, Citizenship and Immigration Services (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. Cornrn. 1967). 
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 did not submit the beneficiary's W-2 forms for 2004 and 2005, but instead 
submitted the payroll record and pay stubs for the beneficiary. A copy of the beneficiary's pay stub dated 
December 29, 2004 indicates that the petitioner paid the beneficiary $63,000 in 2004, which is $9,000 less 
I 
 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. 5 103.2(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, 19 I&N Dec. 764 (BIA 1988). 
than the proffered wage that year. Therefore, the petitioner failed to establish its ability to pay through 
examination of wages paid to the beneficiary for 2004, the year of the priority date. The payroll record 
submitted by the petitioner shows that as of July 3 1, 2005 the petitioner has paid the beneficiary $46,422.21 
as year to date gross compensation, which is greater than the monthly rate of the proffered wage. However, 
the beneficiary's pay stub dated July 29, 2005 shows that the year to date amounts the beneficiary has 
received in 2005 include regular compensation of $39,416.70, commission of $5.51 and bonus of $7,000. 
The regulation at 20 C.F.R. 5 656.20(~)(3) states that the proffered wage may not include commissions, 
bonuses or other incentives, except in an amount guaranteed by the petitioner. The record contains no 
evidence that the petitioner guaranteed any commissions and/or bonus to the beneficiary. The petitioner may 
not, therefore, count any portion of the commissions and bonus the beneficiary received during the salient 
year as evidence of its own ability to pay the proffered wage. The beneficiary's regular compensation is 
$2,583.30 less than the proffered wage for the seven months. Therefore, the petitioner also failed to establish 
its ability to pay the proffered wage through wages actually paid to the beneficiary. The petitioner is 
obligated to demonstrate that it could pay the difference of $9,000 in 2004 and $2,583.30 in the seven months 
of 2005 between wages actually paid to the beneficiary and the proffered wage. 
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 contrary to the petitioner's 
assertions. 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, Lid. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); 
see also Chi-Feng Chang v. Thornburgh, 71 9 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), aff'd, 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 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. 
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. 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 
Page 5 
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.' If the petitioner's total 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. 
The record does not contain the petitioner's tax returns for any of the relevant years, but the record does 
contain 2004 federal tax return for However, the tax return does not indicate 
in-interest to the petitioner or that the petitioner is 
This status requires documentary evidence that 
ghts, duties, and obligations of the predecessor 
company. 
The petitioner also submitted consolidated financial statements of 
 and its subsidiaries for years 
ending December 3 1,2004,2003 and 2002 and for the six months ending June 30,2005. Counsel asserts that 
the petitioner is one of three subsidiaries of and therefore, the net income or net current assets 
reflected on the consolidated financial statements for nd its subsidiaries establish the petitioner's 
ability to pay the proffered wage from the priority date. 
A LLC is a legal entity separate and distinct from its members. The debts and obligations of the LLC are not the 
debts and obligations of the members. As the members of a LLC are not obliged to pay those debts, the income 
and assets of the members, including the income and assets of other companies which they own, cannot be 
considered in determining the petitioning entity's ability to pay the proffered wage. See Matter of M, 8 I&N Dec. 
24 (BIA 1958; AG 1958), Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comrn. 1980); and Matter 
of Tessel, 17 I&M Dec. 631 (Act. Assoc. Cornm. 1980). The petitioner's or anizational documents submitted 
show that the petitioner was structured as a LLC with a sole member which is 
 Therefore, 
is the member of the petitioner, and owns the petitioner. However, as discussed above, the petitioner is a legal 
entity separate and distinct from . The debts and obli 
obligations of, and therefore, the income and assets of 
s other subsidiaries, such as 
 cannot 
be considered in determining the petitioner's ability to pay the proffered wage. As the owners or stockholders or 
members are not obliged to pay those debts, the assets of the owners or stockholders or members and their ability, 
if they wished, to pay the petitioning LLC's debts and obligations, are irrelevant to this matter. CIS will not 
consider the financial resources of individuals or entities who have no legal obligation to pay the wage. See Sitar 
Restaurant v. Ashcroft, 2003 WL 22203713 (D. Mass. Sept. 18,2003). The petitioner must establish its ability to 
pay the proffered wage with its own income or net current assets. 
2 
According to Barron 's Dictionary of Accounting Terrns 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. 
Page 6 
The submitted consolidated financial statements o-and its subsidiaries contain financial 
statements for the petitioner. The regulation at 8 C.F.R. 5 204.5(g)(2) allows the petitioner to submit financial 
statements as alternative evidence to establish its ability to pay the proffered wage, however, it also 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. An audit is conducted in accordance with generally accepted 
auditing standards to obtain a reasonable assurance that the financial statements of the business are free of 
material misstatements. The accountant's report that accompanied those financial statements makes clear that 
they are reviewed statements, as opposed to audited statements. The unaudited financial statements that 
counsel submitted are not persuasive evidence. Reviews are governed by the American institute of Certified 
Public Accountants' Statement on Standards for Accounting and Review Services (SSARS) No.l., and 
accountants only express limited assurances in reviews. As the account's report makes clear, the financial 
statements are the representations of management and the accountant expresses no opinion pertinent to their 
accuracy. The unsupported representations of management are not reliable evidence and are insufficient to 
demonstrate the ability to pay the proffered wage. Therefore, the consolidated financial statements of - 
-nd its subsidiaries, including the financial statements of the petitioner, for 2004 and the seven months 
of 2005 are not acceptable as primary evidence to establish the petitioner's ability to pay the proffered wage 
as of the priority date in 2004 to the present. 
Moreover, the petitioner would have had insufficient net income or net current assets to pay the difference 
between wages actually paid to the beneficiary and the proffered wage in 2004, the year of the priority date, even 
if we could consider the financial statements as acceptable evidence in determining the petitioner's ability to pay. 
The 2004 financial statements indicated that the petitioner had net income of $(240,287) and net current assets of 
$(444,826). Neither of net income nor net current assets was sufficient to pay the difference of $9,000 in 2004 
between wages actually paid to the beneficiary and the proffered wage. 
Therefore, from the date the Form 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, its net income, or its net current 
assets. 
Counsel is citing Full Gospel Portland Church v. Thornburgh, 730 F. Supp. 441 (D.D.C. 1988). The decision 
in Full Gospel is not binding here. Although the AAO may consider the reasoning of the decision, the AAO 
is not bound to follow the published decision of a United States distrlct court in cases arising within the same 
district. 
 See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). 
 Further, the decision in Full Gospel is 
distinguishable from the instant case. The court in Full Gospel ruled that CIS should consider the pledges of 
parishioners in determining a church's ability to pay the wages. Here, counsel's assertion is that CIS should 
consider the assets of the petitioner's owner as evidence of its ability to pay. The petitioner is a LLC. 
Although a LLC may be structured and taxed as a partnership, its owners enjoy limited liability similar to owners 
of a corporation. A LLC, like a corporation is a legal entity separate and distinct from its owners. The debts and 
obligations of the company generally are not the debts and obligations of the owners or anyone else.3 An 
investor's liability is limited to his or her initial investment. As the owners and others only are liable to his or her 
initial investment, the total income and assets of the owners and others and their ability, if they wished, to pay the 
company's debts and obligations, cannot be utilized to demonstrate the petitioner's ability to pay the proffered 
wage. The petitioner must show the ability to pay the proffered wage out of its own funds. 
Although this general rule might be amenable to alteration pursuant to contract or otherwise, no evidence 
appears in the record to indicate that the general rule is inapplicable in the instant case. 
Counsel cites Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), which relates to petitions filed during 
uncharacteristically unprofitable or difficult years but only in a framework of profitable or successful years. 
The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual 
income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed 
business locations and paid rent on both the old and new locations for five months. There were large moving 
costs and also a period of time when the petitioner was unable to do regular business. The Regional 
Commissioner determined that the petitioner's prospects for a resumption of successful business operations 
were well established. The petitioner was a fashion designer whose work had been featured in Time and Look 
magazines. Her clients included Miss Universe, movie actresses, and society matrons. The petitioner's 
clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion 
design at design and fashion shows throughout the United States and at colleges and universities in California. 
The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound 
business reputation and outstanding reputation as a couturiere. 
No unusual circumstances have been shown to exist in this case to parallel those in Sonegawa, nor has it been 
established that 2004 was an uncharacteristically unprofitable year for the petitioner in a framework of 
profitable or successful years. 
Counsel also cites Ranchito Coletero, 2002-INA-104 (2004 BALCA), for the premise that the overall 
circumstance of the owner should be considered when assessing the petitioner's ability to pay wages. 
Counsel does not state how the Department of Labor's (DOL) Board of Alien Labor Certification Appeals 
(BALCA) precedent is binding on the AAO. While 8 C.F.R. 5 103.3(c) provides that precedent decisions of 
CIS are binding on all its employees in the administration of the Act, BALCA decisions are not similarly binding. 
Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 
3 103.9(a). Moreover, Ranchito Coletero deals with a sole proprietorship and is not directly applicable to the 
instant petition, which deals with a LLC. 
On appeal counsel submits a letter from The National Bank of Indianapolis offering a line of credit in the 
amount of $3,037,586. However, in calculating the ability to pay the proffered salary, CIS will not augment 
the petitioner's net income or net current assets by adding in the LLC's credit limits, bank lines, or lines of 
credit. A "bank line" or "line of credit" is a bank's unenforceable commitment to make loans to a particular 
borrower up to a specified maximum during a specified time period. A line of credit is not a contractual or 
legal obligation on the part of the bank. See Barron's Dictionary of Finance and investment Terms, 45 
(1998). 
Since the line of credit is a "commitment to loan'' and not an existent loan, the petitioner has not established 
that the unused funds from the line of credit are available at the time of filing the petition. As noted above, a 
petitioner must establish eligbility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Moreover, the petitioner's existent loans will be reflected in the balance sheet provided in the tax 
return or audited financial statement and will be fully considered in the evaluation of the LLC's net current 
assets. Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a cash asset. 
However, if the petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner must 
submit documentary evidence, such as a detailed business plan and audited cash flow statements, to 
demonstrate that the line of credit will augment and not weaken its overall financial position. Finally, CIS 
will give less weight to loans and debt as a means of paying salary since the debts will increase the firm's 
liabilities and will not improve its overall financial position. Although lines of credit and debt are an integral 
part of any business operation, CIS must evaluate the overall financial position of a petitioner to determine 
Page 8 
whether the employer is making a realistic job offer and has the overall financial ability to satisfy the 
proffered wage. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977). 
Counsel's assertions on appeal cannot be concluded to outweigh the evidence 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 burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.