dismissed EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services · 
MATTER OF C-, INC. 
MOTION ON TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 8, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software development company, seeks to employ the Beneficiary in the United States 
as a programmer/analyst. It requests immigrant classification of the Beneficiary as a professional or 
skilled worker.1 See Immigration and Nationality Act (the Act) section 203(b)(3)(A); 8 U.S.C. 
§ 1153(b )(3)(A). The professional classification allows a U.S. employer to sponsor a professional 
with a baccalaureate degree for lawful permanent resident status. The skilled worker classification 
allows a U.S. employer to sponsor a foreign national for lawful permanent resident status to work in 
a position that requires at least 2 years of training or experience. 
The Director, Texas Service Center, denied the petition. The Director concluded that the 
Beneficiary did not possess a U.S. bachelor's degree or foreign equivalent degree as required by the 
labor certification and for classification as a professional. The Petitioner appealed the matter to us 
and on December 1, 2015, we dismissed the appeal and held that the Beneficiary did not qualify for 
classification as a professional under section 203(b)(3)(A)(ii) of the Act. We also held that the 
Petitioner had not established that the Beneficiary met the terms of the labor certification to qualify 
1 Employment-based immigrant visa petitions are filed on Form 1-140, Immigrant Petition for Alien Worker. A 
petitioner indicates the requested classification by checking a box on the Form I- I 40. The Form I- I 40 version in effect 
when this petition was filed did not have separate boxes for the professional and skilled worker classifications. In the 
instant case, the petitioner selected Part 2, Box e of Form I-I40 for a professional or skilled worker. In our decision 
dated December I, 20 I 5, we detennined that the Beneficiary does not qualify for classification as a professional under 
section 203(b)(3)(A)(ii) of the Act, which grants preference classification to qualified immigrants who hold 
baccalaureate degrees and are members of the professions. See also 8 C.F.R. § 204.5(1)(2). For classification as a 
professional, the Beneficiary must possess a U.S. bachelor's degree or a foreign degree from a college or university that 
is equivalent to a U.S. bachelor's degree. We stated in our appeal decision that the Beneficiary does not possess a 
"foreign equivalent degree" within the meaning of 8 C.F.R. § 204.5(1)(2). We determined that the Petitioner has not 
established that the Beneficiary possessed at least a U.S. baccalaureate or a foreign equivalent degree in the required 
field as of the priority date. On motion, the Petitioner asserts that the Beneficiary's case is identical to a prior AAO non­
precedent decision issued in 2008, where we approved a petitioner's Form 1-140 under the skilled worker classification, 
but determined that the beneficiary did not qualify for classification as a professional because he possessed the 
"equivalent" of a bachelor's degree rather than a "foreign equivalent degree." On motion, the Petitioner does not dispute 
our finding that the Beneficiary does not qualify for classification as a professional under section 203(b )(3)(A)(ii) of the 
Act. Therefore, this decision addresses only the skilled worker classification. 
Matter ojC-, Inc. 
for classification as a skilled worker, and that the Petitioner had the ability to pay the proffered 
wages to the Beneficiary and its other sponsored workers. 
The matter is now before us on a motion to reopen and reconsider. On motion, the Petitioner states 
that the Beneficiary meets the terms of the labor certification and that the Petitioner demonstrated its 
ability to pay the proffered wage. We will deny the motion to reopen and reconsider because the 
Petitioner has not established that the Beneficiary meets the terms of the labor certification for 
classification as a skilled worker, and the Petitioner has not established its continuing ability to pay 
the proffered wages to the Beneficiary and its other sponsored workers. 
I. LAW AND ANALYSIS 
A motion to reopen must state new facts and be supported by affidavits or other documentary 
evidence. 8 C.F.R. § 103.5(a)(2). 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of Jaw or 
policy. A motion to reconsider must also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
A. Beneficiary's Qualifications 
The first issue on motion is whether the petltwn may be approved in the skilled worker 
classification. Section 203(b )(3)(A)(i) of the Act provides for the granting of preference 
classification to qualified immigrants who are capable of performing skilled labor (requiring at least 
2 years training or experience), not of a temporary nature, for which qualified workers are not 
available in the United States. See also 8 C.F.R. § 204.5(1)(2). 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states: 
If the petition is for a skilled worker, the petition must be accompanied by evidence 
that the alien meets the educational, training or experience, and any other 
requirements of the [labor certification]. The minimum requirements for this 
classification are at least two years of training or experience. 
The determination of whether a petition may be approved for a skilled worker is based on the 
requirements of the job offered as set forth on the labor certification. See 8 C.F.R. § 204.5(1)(4). The 
labor certification must require at least 2 years of training and/or experience. Relevant post­
secondary education may be considered as training. See 8 C.F.R. § 204.5(1)(2). 
Accordingly, a petition for a skilled worker must establish that the job offer portion of the labor 
certification requires at least 2 years of training and/or experience, and the beneficiary meets all of the 
requirements of the offered position set forth on the labor certification. 
2 
(b)(6)
Matter of C-, Inc. 
In evaluating the beneficiary's qualifications, U.S. Citizenship and Immigration Services (USCIS) 
must look to the job offer portion of the labor certification to determine the required qualifications 
for the position. USCIS may not ignore a term of the labor certification, nor may it impose 
additional requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); KR.K Irvine, Inc. v. 
Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 
F.2d 1 (1st Cir. 1981 ). USCIS must examine "the language of the labor certification job 
requirements" in order to determine what the petitioner must demonstrate that the beneficiary has to 
be found qualified for the position. Madany, 696 F.2d at 1015. USCIS interprets the meaning of 
terms used to describe the requirements of a job in a labor certification by "examin[ing] the certified 
job offer exactly as it is completed by the prospective employer." Rosedale Linden Park Co. v. 
Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USCIS's interpretation of the job's 
requirements, as stated on the labor certification must involve "reading and applying the plain 
language of the [labor certification]" even if the employer may have intended different requirements 
than those stated on the form. !d. at 834 (emphasis added). 
In the instant case, the Form ETA 750, Application for Alien Labor Employment Certification (labor 
certification), states that the offered position has the following minimum requirements: 
EDUCATION 
College: 4 years. 
College Degree Required: B.S. or equivalent. 
Major Field of Study: CIS or Computer Eng. 
TRAINING: None Required. 
EXPERIENCE: Two years in the job offered or in the related occupation of software 
engmeer. 
OTHER SPECIAL REQUIREMENTS: None. 
The Beneficiary possesses a bachelor of arts degree from 
a master's degree in business administration from 
completed in 1997. The Beneficiary also passed Sections A and B of the 
completed in 1984, and 
India, 
Examinations in the Electronics and Communication Engineering Branch in Summer 
1988 and Winter 1993, respectively? Because the labor certification requires a bachelor's degree or 
equivalent in computer information systems (CIS) or computer engineering, the question at issue is 
whether the Beneficiary's education meets the terms of the labor certification. 
The record contains several evaluations of the Beneficiary's educational credentials. The Petitioner 
submitted an evaluation of the Beneficiary's educational credentials prepared by 
Ph.D., for dated December 17, 2003. The 
2 The record contains a certificate dated August 12, 1994, from indicating that the Beneficiary passed Sections A and 
B of the Examinations, but does not contain any evidence that he attained associate membership in In addition 
to passing the examinations, as set forth in the materials submitted by the Petitioner to the record, associate 
membership in requires meeting a certain age requirement, being engaged in the engineering occupation, and having 
received certain engineering training. 
3 
(b)(6)
Matter of C-, Inc. 
evaluation stated that the Beneficiary "has the equivalent of a Bachelor's degree in Computer 
Information Systems from an accredited college or university in the United States of America" based 
on his passage of the examinations, his master of business administration degree from 
and his certificates from USA, and 
USA. 
In response to the director's May 19, 2014, request for evidence, the Petitioner submitted a new 
evaluation from concluded that the Beneficiary's certificate from the is 
equivalent to a "Bachelor of Science Degree in Electronics and Communications Engineering with a 
concentration in Computer Engineering (27 credits for a major in Computer Engineering) from an 
accredited college or University in the United States of America." 
In a March 11, 2015, evaluation, of concluded that the 
Beneficiary "has attained the equivalent of a Bachelor of Science degree in Electronics Engineering 
and a Master of Business Administration Degree from an accredited institution of higher education 
in the United States." stated that his conclusion is based on "[t]he course of studies 
undertaken, the number of credit units earned, the number of years of coursework, the grades earned 
for coursework and the final diploma." 
In a March 13, 2015, evaluation, for the summarized that 
based on "the number of years of coursework, the nature of the coursework, the grades attained in 
the courses, and passage of the Section A and B Examinations, it is the judgment of 
that [the beneficiary] attained the equivalent of a Bachelor of Science Degree 
in Electronic Engineering and a Bachelor of Administration Degree from an accredited college or 
university in the United States." 
On June 19, 2015, we issued the Petitioner a request for evidence (our RFE) in connection with its 
earlier appeal in this matter. We indicated in our RFE that we have reviewed the Electronic 
Database for Global Education (EDGE) created by the American Association of Collegiate 
Registrars and Admissions Officers (AACRAO). According to its website, AACRAO is "a 
nonprofit, voluntary, professional association of more than 11,000 higher education professionals 
who represent approximately 2,600 institutions in more than 40 countries." About AACRAO, 
http://www.aacrao.org/home/about (last visited July 29, 2016). EDGE is "a web-based resource for 
the evaluation of foreign educational credentials." AACRAO EDGE, http://edge.aacrao.org/info.php 
(last visited July 29, 2016). USCIS considers EDGE to be a reliable, peer-reviewed source of 
information about foreign credentials equivalencies. 3 
3 In Confluence Intern., Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court determined that we 
provided a rational explanation for its reliance on information provided by AACRAO to support its decision. In 
Sunshine Rehab Servs., Inc. v. USCIS, 20 I 0 WL 3325442 (E.D.Mich. August 20, 20 I 0), the court upheld a USC IS 
detennination that the beneficiary's 3-year bachelor's degree was not a foreign equivalent degree to a U.S. bachelor's 
degree. Specifically, the court concluded that USCIS was entitled to prefer the information in EDGE and did not abuse 
its discretion in reaching its conclusion. The court also noted that the labor certification itself required a degree and did 
not allow for the combination of education and experience. 
4 
(b)(6)
Matter of C-, Inc. 
According to EDGE, a bachelor of arts degree from India is comparable to 2 to 3 years of university 
study in the United States. EDGE also confirms that Associate Membership upon passing the 
Final Examination represents attainment of a level of education comparable to a bachelor's 
degree in the United States. However, is not an academic institution that can confer an actual 
degree with an official college or university record. Nothing in the record shows that the 
Beneficiary has the foreign equivalent of a U.S. bachelor's degree in CIS or computer engineering 
issued by a college or university in accordance with the terms of the · labor 
certification. Additionally , the record does not establish that the Beneficiary has obtained 
Associate Membership. Instead, the record shows only that he passed the Final Examinations. 
Further, nothing in the record indicates that the Petitioner intended to accept a 2- or 3-year 
bachelor's degree or associate membership following examinations from a professional organization 
in lieu of a bachelor's degree in CIS or computer engineering. The labor ce1tification does not permit 
a lesser degree, a combination of lesser degrees, ancl/or a quantifiable amount of work experience, such 
as that possessed by the Beneficiary. Nonetheless, we issued our RFE to provide the Petitioner an 
opportunity to demonstrate its intent regarding the educational requirements of the labor certification 
as that intent was explicitly and specifically expressed during the labor certification process to the DOL 
and to potentially qualified U.S. workers.4 
In response to our RFE, the Petitioner submitted copies of the advertisements for the positiOn 
offered, a recruitment re
port, and the resumes received. However, the copies of the advertisements 
are not legible due to the very small size of the print. On motion, the Petitioner states that after using 
a magnifying glass to try to ascertain the wording used, it is "reasonably certain" that it advised 
potential U.S. workers that a bachelor 's degree or equivalent was acceptable. The Petitioner cannot 
meet the burden of proof simply by claiming a fact to be true or "reasonably certain," without 
supporting documentary evidence. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0). The Petitioner must support assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. The 
illegible advertisements are not probative or credible evidence of the Petitioner's claim that it 
advised potential U.S. workers that a bachelor's degree or equivalent was acceptable. 
4 
In limited circumstanc es, USCIS may consider a petitioner's intent to detem1in e the meaning of an unclear or 
ambiguous term in the labor certification. However , an employer's subjective intent may not be dispositive of the meaning 
of the actual minimum requirements of the offered position. See Maramjaya v. USCIS, Civ. Act No. 06-2158 (D. D.C. Mar. 
26, 2008). The best evidence of a petitioner's intent concerning the actual minimum educational requirements ofthe offered 
position is evidence of how it expressed those requirement s to the DOL during the labor certification proces s and not 
afterwards to USCIS . The timing of such evidence ensures that the stated requirem ents of the offered position as set f011h on 
the labor certification are not incorrectl y expanded in an effort to fit the beneficiary 's credentials. Such a result would be 
contrary to Congres s' intent to limit the issuance of immigrant visas in the profe ssional and skilled worker classifications to 
when there are no qualifi ed U .S. workers available to perfonn the offered position. See !d. at 14. 
5 
Matter of C-, Inc. 
The recruitment report states that in order "to do the work of a programmer analyst, a bachelor's 
degree in [CIS], or related discipline is generally required as a minimum for entry into the field." 
The recruitment report further states, in part: 
It has been our experience that in order to perform the duties of the position held by 
[the Beneficiary], an individual would require a minimum of two years of 
progressively responsible experience in VB, Dot Net, ASP and RDBMS following 
the completion of a baccalaureate degree in computer engineering, or related 
engineering or scientific discipline. Accordingly, these are the minimum 
requirements set forth in our petition. We are unable to consider applicants with less 
than two years of progressively responsible experience following completion of a 
baccalaureate degree because our experience has been that such individuals lack the 
ability to perform the work required by a programmer analyst in [the Beneficiary's] 
position. 
The recruitment report specifically states that a bachelor's degree in computer engineering, or related 
engineering or scientific discipline, is required, and does not provide for equivalency alternatives to 
a bachelor's degree. The Petitioner indicated that it interviewed the six applicants who responded to 
the advertisements. The resumes are included in the record. The Petitioner stated that five of the 
applicants were found to be "deficient in their abilities and experience" and, therefore, were not 
hired, and one individual who "had the required education and skills" was given a technical 
interview and was not hired following that interview because he was deemed unqualified due to his 
lack of technical knowledge. It is not clear from the record which applicant had the "required 
education and skills" and whether the "required education" included an equivalency alternative to a 
4-year bachelor's degree in CIS or computer engineering. 5 
Further, while our RFE specifically requested the Petitioner to submit "copies of the prevailing wage 
determination, all online, print and additional recruitment conducted for the position, the job order, 
[and] the posted notice of the filing of the labor certification," the Petitioner stated that the remainder 
of the requested information (other than the illegible print advertisements, recruitment report, and 
resumes it provided) was unavailable because of the passage of time. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of So.ffici, 22 I&N Dec. at 165. The Petitioner did not submit any 
additional evidence of recruitment on motion. 
5 Regarding education, one applicant's resume listed a combined bachelor and master of science in computer networks 
from a Moroccan university; one listed an associate of science degree in applied chemistry from a college in China, 
together with college computer courses at a U.S. college and computer training courses; one listed 112 credits toward a 
bachelor of science degree in management from a U.S. college, an associate's degree from a U.S. college, and computer 
training courses; one listed a bachelor's degree and master's degree in computer science; one listed a bachelor of science 
degree in computer networking/computer science from a U.S. college; and one listed a bachelor of engineering degree 
from India, together with a master of computer science degree from a U.S. university. 
6 
(b)(6)
Matter of C-, Inc. 
The Petitioner has not demonstrated the recruitment evidence stated that the educational 
requirements for the job may be met through anything less than a 4-year bachelor's degree in CIS or 
computer engineering. Nothing in the record indicates that the Petitioner advised the DOL that the 
educational requirements for the job may be met through a combination of lesser degrees or other 
defined equivalency. 
On motion, the Petitioner cites one of our non-precedent decisions6 from 2008 in which we sustained 
the appeal of a denied petition filed in the skilled worker category on behalf of a beneficiary who 
had a 3-year bachelor's degree from India and associate membership in the where the labor 
certification required 4 years of college and a bachelor of science degree or equivalent. 7 In that case, 
the petitioner submitted a printed advertisement listing the full labor certification job description and 
section 15 requirements from the Form ETA 750, as well as specifying "B.S. in Comp. Sci., Engr'g 
or Sci. (or equiv.); a second advertisement also listing the full labor certification job description and 
section 15 requirements, as well as specifying "B.S. in Comp. Sci., Engr'g or Sci. (or equiv.); a 
posting notice listing the requirements as "B.S. in Computer Science, Engineering, or Science (or 
equiv.)," as well as all other requirements. The advertisements and posting notice specifically stated 
that the petitioner would accept candidates with an equivalent degree. Based on the recruitment 
completed and position as it was advertised to U.S. workers, we concluded that the petitioner's intent 
concerning the actual minimum requirements of the proffered position would include equivalency 
alternatives to a 4-year bachelor's degree and that the petitioner would have considered candidates 
with an equivalent degree. The instant case differs from the 2008 case. Here, the Petitioner has not 
submitted legible advertisements, or a posting notice, job order, or prevailing wage determination , 
specifically stating that it would accept candidates with an equivalent degree. 
While a bachelor 's degree or the foreign equivalent degree is not required for classification as a 
skilled worker, the Beneficiary must meet the terms of the labor certification. US CIS must examine 
"the language of the labor certification job requirements" in order to determine what the petitioner 
must demonstrate that the beneficiary has to be found qualified for the position. Madany, 696 F.2d at 
1015. In this case, the labor certification requires 4 years of college and a bachelor of science degree 
or equivalent. There are no alternate requirements indicated. No specific terms are set out on the 
Form ETA 750 to define the term "equivalent." The terms ofthe labor certification do not allow for 
a 3-year bachelor's degree, or a 3-year degree and associate membership following examinations in 
a professional organization. 8 
6 While 8 C.F.R. § I 03.3(c) provides that precedent decision s of USC IS are binding on all its employees in the administration 
of the Act, unpublished decisions are not similarly binding . Precedent decisions must be designated and published in bound 
volumes or as interim decisions. 8 C.F.R. § 103.9(a). 
7 A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the decision was based on an incorrect application of law or policy. C.F.R. § I 03.5(a)(3). 
8 The DOL has provided the following field guidance: "When an equivalent degree or alternative work experience is 
acceptable, the employer must specifically state on the [labor certification] as well as throughout all phases of 
recruitment exactly what will be considered equivalent or alternative in order to qualify for the job. " See Memo . from 
Anna C. Hall, Acting Reg ' l Adminst'r, U.S. Dep 't. of Labor's Empl. & Training Administration , to SESA and JTPA 
Adminstrs. , U.S. Dep 't. of Labor 's Empl. & Training Administration , Interpretation of " Equivalent Degree ," 2 (June 13, 
1994). The DOL has also stated that "[w]hen the term equivalent is used in conjunction with a degree , we understand to 
7 
Matter of C-, Inc. 
The Petitioner has not indicated on the labor certification that it would allow for a 3-year bachelor's 
degree and associate membership in a professional organization or other alternative requirements. 
Therefore, it is concluded that the terms of the labor certification require a 4-year U.S. Bachelor's 
degree or a foreign equivalent degree in CIS or computer engineering. The Beneficiary does not 
possess such a degree. The Petitioner did not establish that the Beneficiary met the minimum 
educational requirements of the offered position set forth on the labor certification by the priority date. 
The petition may not be approved in the skilled worker classification pursuant to section 
203(b)(3)(A)(i) ofthe Act. 
B. Ability to Pay the Proffered Wage 
The second issue on motion is whether the Petitioner has demonstrated its continuing ability to pay the 
proffered wage. 
The regulation at 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 either 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 was accepted for processing by any office within 
the employment system of the DOL. See 8 C.F.R. § 204.5(d). Here, the Form ETA 750 was 
accepted on March 15, 2004. The proffered wage as stated on the labor certification is $74,800 per 
year. 
On the petition, the Petitioner claimed to have been established in 2000 and to currently employ 29 
workers. On the Form ETA 750, signed by the Beneficiary on March 5, 2004, the Beneficiary did 
not claim to have worked for the Petitioner.9 
The Petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of 
an labor certification application establishes a priority date for any immigrant petition later based on the 
mean the employer is willing to accept an equivalent foreign degree." See Ltr. From Paul R. Nelson, Certifying Officer, 
U.S. Dept. of Labor's Empl. & Training Administration, to Joseph Thomas, INS (October 27, 1992). To our knowledge, 
these field guidance memoranda have not been rescinded. 
9 On the Beneficiary's Form G-325A, Biographic Information Form, the Beneficiary claimed to have started working for 
the Petitioner as a programmer/analyst in January 2004. 
8 
Matter of C-, Inc. 
Form 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 lawful 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 o[Great Wall, 16 I&N Dec. 142 (Acting Reg'l eomm'r 
1977); see also 8 e.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, users 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. 612 (Reg'l eomm'r 
1967). 
In determining the Petitioner's ability to pay the proffered wage during a given period, users will 
first examine whether the Petitioner employed and paid the Beneficiary during that period. In the 
instant case, the Petitioner has established that it paid the Beneficiary the following wages on his 
IRS Forms W-2, Wage and Tax Statement: 
• $53,369.51 in 2004; 
• $65,499.16 in 2005; 
• $61,168.15 in 2006; 
• $88,622.00 in 2007; 10 
• $92,351.00 in 2008; 
• $73,798.00 in 2009; 
• $75,399.00 in 2010; 
• $88,998.00 in 2011; 
• $79,651.00 in 2012; 
• $100,149.00 in 2013; and 
• $109,471.00 in 2014 . 
Thus, the Petitioner has established that it paid the Beneficiary more than the proffered wage in 
2007, 2008, 2010, 2011, 2012, 2013, and 2014. The Petitioner must demonstrate that it can pay the 
difference of $21,430.49, $9300.84, $13,631.85, and $1002.00 between wages actually paid to the 
Beneficiary and the proffered wage in 2004, 2005, 2006, and 2009, respectively. 
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, users will next examine the net income figure reflected 
on the Petitioner's federal income tax return, without consideration of depreciation or other 
expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st eir. 2009); Taco Especial v. 
Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th eir. filed Nov. 10, 
2011). 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 Woodcrafi Haw., Ltd. v. Feldman, 736 F.2d 
10 
The Petitioner issued the Beneficiary two IRS Forms W-2 in 2007, one for $18,735 and one for $69,887. 
9 
Matter of C-, Inc. 
1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 
1989); K.C.P. Food Co. 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). 
The evidence in the record of proceeding shows that the Petitioner was structured as a C corporation 
in 2004 and 2005, and was structured as an S corporation from 2006 to 2014. For a C corporation, 
USCIS considers net income to be the figure shown on Line 28 of the IRS Form 1120, U.S. 
Corporation Income Tax Return. The Petitioner's tax returns demonstrate its net income for 2004 
and 2005 as $7947 and $16,577, respectively. Therefore, for the year 2004, the Petitioner did not 
have sufficient net income to pay the difference of $21,430.49 between wages actually paid to the 
Beneficiary and the proffered wage. For the year 2005, the Petitioner had sufficient net income to 
pay the difference of $9300.84 between wages actually paid to the Beneficiary and the proffered 
wage. 
Where an S corporation's income is exclusively from a trade or business, USCIS considers net income 
to be the figure for ordinary income, shown on line 21 of page one of a petitioner's IRS Form 1120S, 
U.S. Income Tax Return for an S Corporation. However, where an S corporation has income, credits, 
deductions or other adjustments from sources other than a trade or business, they are reported on 
Schedule K. If the Schedule K has relevant entries for additional income, credits, deductions or other 
adjustments, net income is found on line 18 of Schedule K in tax years 2006 through 2014. See 
Instructions for Form 1120S, at http://www.irs.gov/pub/irs-pdf/i1120s.pdf (accessed July 29, 2016) 
(indicating that Schedule K is a summary schedule of all shareholders' shares of the corporation's 
income, deductions, credits, etc.). For the year 2006, the Petitioner had net income of $23,616 
shown on line 18 of its Schedule K. Thus, the Petitioner has established that it can pay the 
difference of $13,631.85 between wages actually paid to the Beneficiary and the proffered wage in 
2006. 
The Petitioner submitted only the first page of its IRS Form 1120S for tax year 2009. Therefore, we 
are unable to determine the Petitioner's net income, because we cannot determine if the Petitioner 
had additional income, credits, deductions, and/or other adjustments shown on its Schedule K for 2009. 
Therefore, for the year 2009, the Petitioner did not establish that it had sufficient net income to pay 
the difference between the wages paid to the Beneficiary and the proffered wage. 
As an alternate means of determining the Petitioner's ability to pay the proffered wage, USCIS may 
review the Petitioner's net current assets. Net current assets are the difference between the 
Petitioner's current assets and current liabilities. 11 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 
11 According to Barron's Dictionary of Accounting Terms 117 (3'ct 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). !d. at 118. 
10 
(b)(6)
Matter of C-, Inc. 
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 Petitioner's 2004 Form 1120 shows net current assets of $37,731. Thus, for the year 2004, the 
Petitioner had sufficient net current assets to pay the difference of $21,430.49 between wages 
actually paid to the Beneficiary and the proffered wage. 
The Petitioner submitted only the first page of its IRS Form 1120S for tax year 2009. It did not 
submit its Schedule L. Therefore, we are unable to determine the Petitioner's net current assets for 
2009. For the year 2009, the Petitioner did not establish that it had sufficient net current assets to 
pay 
the difference between the wages paid to the Beneficiary and the proffered wage. 
Our RFE and 
appeal decision stated that according to USeiS records, the Petitioner has filed Form I-
140 petitions on behalf of 13 other beneficiaries. We noted that the Petitioner must establish that it 
has had the continuing ability to pay the combined proffered wages to each beneficiary from the 
priority date of the instant petition. See Matter o.fGreat Wall, 16 I&N Dec. 142, 144-145 (Acting 
Reg'l eomm'r 1977); 8 e.F.R. § 204.5(g)(2). The Petitioner must demonstrate its ability to pay the 
combined proffered wages from the instant petition's priority date until the other beneficiaries 
obtained lawful permanent residence, or until their petitions were denied, withdrawn, or revoked. 
See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a petition 
where a petitioner did not demonstrate its ability to pay multiple beneficiaries). 
In response to our RFE, the Petitioner listed the priority dates for six workers (in addition to the 
current Beneficiary) for whom it had filed Form I-140 petitions. The Petitioner provided copies of 
Forms W -2 issued to each of these workers. The Petitioner stated that it is not offering employment 
to any beneficiaries of Form I -140 petitions except the current Beneficiary and the six beneficiaries 
named on this list. However, the evidence in the record does not document the 
wage proffered to 
each of those six beneficiaries, so we are unable to determine if the Petitioner met its wage 
obligations to those six beneficiaries in each relevant year. Further, the Petitioner has not provided 
any information regarding the approved Form I-140 petitions on behalf of the remaining seven 
beneficiaries, including the proffered wages, whether any of the beneficiaries have obtained lawful 
permanent residence, and whether the petitions have been withdrawn or the approvals have been 
revoked. 12 The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying thepetition. See 8 e.F.R. § 103.2(b)(14). The Petitioner has not established that 
it has the ability to pay the proffered wages to the Beneficiary and the other sponsored workers. 
USeiS may consider the overall magnitude of the Petitioner's business activities in its determination 
of the Petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 
(Reg'l eomm'r 1967). users may consider such factors as the number of years the Petitioner has 
been doing business, the established historical growth of the Petitioner's business, the overall 
12 The receipt numbers for the remaining seven petitions are as follows: 
and 
II 
Matter ofC-, Inc. 
number of employees, the occurrence of any uncharacteristic business expenditures or losses, the 
Petitioner's reputation within its industry, whether the Beneficiary is replacing a former employee or 
an outsourced service, or any other evidence that USCIS deems relevant to the Petitioner's ability to 
pay the proffered wage. In the instant case, the Petitioner was established in 2000. While it showed 
substantial gross receipts and wages paid each year from 2004 to 2014, we cannot adequately 
determine the Petitioner's ability to pay the proffered wages to the Beneficiary and its other 
sponsored workers based on the information contained in the record. 
The evidence submitted does not establish that the Petitioner had the continuing ability to pay the 
proffered wage beginning on the priority date. 
II. CONCLUSION 
In summary, the Petitioner has not demonstrated that the Beneficiary met the terms of the labor 
certification for classification as a skilled worker. Further, the Petitioner has not established that it 
had the continuing ability to pay the proffered wage beginning on the priority date. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter o[Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofC-, Inc., ID# 16959 (AAO Aug. 8, 2016) 
12