dismissed EB-3 Case: Software Engineering

~dentifying data deleted to 
prevent clearly unwarranted 
invasion of personal priv8cg 
BUBWC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
46 
PETITION: 
 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. 9 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. 
~obeh P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a software development and information technology firm. It seeks to employ the beneficiary 
permanently in the United States as a software engineer. As required by statute, a Form ETA 750, 
Application for Alien Employment Certification approved by the Department of Labor, accompanied the 
petition. The director determined that the petitioner had not established that it had the intention to offer 
employment to the beneficiary and denied the petition accordingly. 
Section 203(b)(3)(A)(i) of the Imnugration 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 slulled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
Ability ofprospective 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. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. In appropriate cases, additional 
evidence, such as profit/loss statements, bank account records, or personnel records, may be 
submitted by the petitioner or requested by [Citizenship and Immigration Services (CIS)]. 
Employment-based immigrant visa petitions depend on priority dates. The priority date is the date the Form 
ETA 750 was accepted for processing by any office within the employment system of the Department of 
Labor. See 8 C.F.R. 5 204.5(d). The priority date in the instant petition is January 13, 2003. The proffered 
wage as stated on the Form ETA 750 is $71,732.00 per year. On the Form ETA 750B, signed by the 
beneficiary on January 6, 2003, the beneficiary claimed to have worked for the petitioner beginning in 
September 2002 and continuing through the date of the ETA 750B. The ETA 750 was certified by the 
Department of Labor on June 24,2003. 
The 1-140 petition was submitted on September 8, 2003. On the petition, the petitioner claimed to have been 
established in 1997, to currently have 20 employees and to have a gross annual income of $2 million. The 
item on the petition for net annual income was left blank. With the petition, the petitioner submitted 
supporting evidence. 
Concurrently with the 1-140 petition, the beneficiary filed a Form 1-485, Application to Register Permanent 
Resident or Adjust Status. 
Page 3 
The director issued a notice of intent to deny the 1-140 petition (ITD) dated May 3, 2004 for failure to 
establish the petitioner's ability to pay the proffered wage. The director afforded the petitioner thirty days in 
which to submit evidence in support of the petition and in opposition to the denial. 
In response to the ITD, the petitioner submitted additional evidence. The petitioner's submissions in response 
to the ITD were received by the director on June 3,2004. 
In a decision dated August 18, 2004, the director determined that the beneficiary was no longer working for 
the petitioner and found that the evidence indicated that the petitioner no longer intended to employ the 
beneficiary. The director accordingly denied the petition. 
On appeal, counsel submits a brief and additional evidence. Counsel states on appeal that the evidence 
establishes the petitioner's ability to pay the proffered wage during the relevant time period. Counsel also 
states that the petitioner has changed jobs, but that the petition should be approved pursuant to the provisions 
of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), since the beneficiary's 
1-485 application had been pending for more than 180 days at the time the beneficiary changed jobs. 
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. fj 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 
ofsoriano, 19 I&N Dec. 764 (BIA 1988). 
The director's reason for issuing the ITD was the director's determination that the evidence failed to establish 
the petitioner's ability to pay the proffered wage during the relevant period. In the ITD, the director stated the 
following: 
A Department of Labor review indicates that the petitioner has not provided wages for 27 
itioner through its attorney acknowledge a Court Order issued by 
on December 24, 2003. A fine that was levied against the petitioner has 
never been paid. Since the petitioner has not paid the fine and did not meet its payroll 
obligations, it appears that the petitioner does not have the ability to pay the offered wages of 
the beneficiary. 
(ITD, May 3,2004, at 1). 
In response to the ITD the petitioner submitted a copy of the Department of Labor notice referred to in the 
ITD. The beneficiary's name is not among the names of the employees listed on that notice who are allegedly 
owed wages by the petitioner. In a letter dated June 1, 2004, counsel states that the beneficiary was fully paid 
by the petitioner. Counsel also states that the beneficiary had changed his employer and qualified under the 
terms of "180-day rule" in the act referred to by counsel through its abbreviation, "AC 21." (Letter from 
Counsel, June 1, 2004, at 1). The petitioner's response to the ITD also included a copy of Form W-2 Wage 
and Tax Statements of the beneficiary showing compensation received from the petitioner in 2002 and 2003, 
a copy of a pay statement of the beneficiary showing compensation received from the petitioner through the 
first quarter of 2004; and a copy of a pay statement of the beneficiary showing pay received from his new 
employer, for the pay period ending May 15, 2004, and also showing the beneficiary's 
earnings for e year o a e. 
Page 4 
In denying the petition, the director did not further address the issue of the petitioner's ability to pay the 
proffered wage. Rather, the director found that the statements of counsel on the beneficiary's new employer 
and the evidence pertaining to the beneficiary's new employer were sufficient to show that the petitioner no 
longer intended to offer employment to the beneficiary. The director therefore denied the petition for that 
reason. The director stated that "AC21" and the "180 day rule" did not apply to the instant petition because 
the immigrant petition was never approved. (Director's decision, August 18, 2004, at 2). 
A resolution of the instant appeal requires an analysis of certain provisions of the act referred to by counsel 
and by the director by its abbreviation "AC21". 
The American Competitiveness in the 21" Century Act (AC21), Pub.L.No. 106-313, became law on October 
17,2000. AC21 tj 106(c) added a new subsection 0) to section 204 of the INA, which states: 
Job Flexibility for Long Delayed Applicants for Adjustment of Status to Permanent 
Residence - A petition under subsection (a)(l)(D)for an individual whose application for 
adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 
180 days or more shall remain valid with respect to a new job if the individual changes jobs 
or employers if the new job is in the same or a similar occupational classification as the job 
for which the petition was filed. 
INA tj 204(j) (added by The American Competitiveness in the 21" Centuly Act (AC21), Pub.L.No. 106-313, 
4 106(c), 1 14 Stat. 125 1 (2000)). 
AC21 also provides that where an 1-140 petition and a new job offer satisfy the requirements of INA tj 2040), 
the underlying labor certification also remains valid. American Competitiveness in the 21" Centuly Act, 
Pub.L.No. 106-3 13, 106(c)(2). 
A memorandum dated December 27, 2005, from Michael Aytes, Acting Director of Domestic Operations gives 
guidance to CIS adjudicators concerning the effect of AC2 1. The guidance is presented in the form of questions 
and answers. The memorandum uses the term "to port" to indicate that a beneficiary is transferring his rights 
under an immigrant visa petition submitted by one employer to a job offer from a new employer. For situations 
where an 1-140 visa petition has not yet been approved at the time the beneficiary seeks to transfer his or her 
rights to a new employer, the memorandum states the following: 
Question 1. How should service centers or district offices process unapproved 1-140 
petitions that were concurrently filed with 1-485 applications that have been pending 
180 days in relation to the 1-140 portability provisions under §106(c) of AC21? 
Answer: If it is discovered that a beneficiary has ported off of an unapproved 1-140 and 1-485 
that has been pending for 180 days or more, the following procedures should be applied: 
A. Review the pending 1-140 petition to determine if the preponderance of the evidence 
establishes that the case is approvable or would have been approvable had it been 
adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or 
any other issue relating to a time after the filing of the petition, approve the petition on 
it's [sic] merits. Then adjudicate the adjustment of status application to determine if the 
new position is the same or similar occupational classification for 1-140 portability 
purposes. 
Memo. from Michael Aytes, Acting Director for Domestic Operations, to CIS Regional Directors and Service 
Center Directors, Interim guidance for processing 1-140 employment-based immigrant petitions and 1-485 
and H-IB petitions affected by the American Competitiveness in the Twenty-First Century Act of 2000 
(AC21) Public Law 106-313 at 2 (December 27,2005) (bolded in the original). 
Although the Aytes memorandum may not be available publicly, identical language to the portion quoted 
above is found in a May 12, 2005 memorandum from William Yates, Associated Director for Operations, 
CIS, which is available on the public Internet Web site of CIS. See Memo. from William R. Yates, Associate 
Director for Operations, CIS, to Regional Directors and Service Center Directors, Interim Guidance for 
Processing Form 1-140 Employment-Based Immigrant Petitions and Form 1-485 and H-1B Petitions Affected 
by the American Competitiveness in the Twenty-First Century Act of 2000 (AC2I)(Public Law 106-313) at 3 
(May 12, 2005) (available at http://uscis.gov/graphics/index.htm; path Immigration Laws, Regulations and 
Guides; Immigration Handbooks, Manuals and Policy Guidance; Immigration Policy and Procedure 
Memoranda; topic category H-1). 
The Aytes memorandum is intended to give guidance to CIS adjudications officers, and its interpretation of 
the law is not binding on the AAO. Nonetheless, the portion of the Aytes memorandum quoted above 
represents a thoughtful interpretation of the relevant statutory and regulatory provisions. The AAO finds that 
interpretation to be a reasonable one in a situation where an 1-140 petition and an 1-485 application have been 
concurrently filed, and where the 1-485 has been pending for 180 days or more. In order to retain its validity 
under section 204Cj) of AC 2 1, a petition must first be determined to be "valid." CIS holds this to mean either 
"approved" or in certain situations, "approvable." Therefore, in limited instances, if the 1-140 petition has not 
yet been approved, the beneficiary may still transfer his or her rights to a new employer, provided that the 
1-485 application has been pending for 180 days or more. When the 1-140 petition is adjudicated, it may be 
approved if the evidence establishes all necessary elements as of the date of filing the 1-140 petition. Only 
after this adjudication on its merits, can the beneficiary's 1-485 be adjudicated under the terms of AC21. 
The regulation at 8 C.F.R. 5 204.5(c) states in pertinent part, "Any United States employer desiring and intending 
to employ an alien may file a petition for classification of the alien under section 203(b)(l)(B), 203(b)(l)(C), 
203(b)(2), or 203(b)(3) of the Act." The instant petition has been filed under section 203(b)(3) of the Act. 
As noted above, the instant 1-140 petition was filed on September 8, 2003. To satisfy the regulation at 
8 C.F.R. 5 204.5(c), the evidence must establish that the petitioner was an employer "desiring and intending" to 
employ the beneficiary as of that date. 
The record contains inconsistent evidence concerning the beneficiary's dates of employment with the petitioner. 
The record contains copies of Form W-2 Wage and Tax Statements of the beneficiary showing compensation 
from the petitioner for 2002 and 2003. Those Forms W-2 show the amounts in the following table. 
Petitioner's Form W-2's 
Tax Wages, tips, other Social Security Michigan state MI state income 
year compensation wages compensation tax withheld 
Page 6 
The record also contains copies of pay statements of the beneficiary showing compensation from the petitioner 
for pay periods ending January 15, 2003, February 15, 2003, April 15, 2003, May 15, 2003, June 15, 2003 and 
July 15, 2003. Each of those statements is for a one-month period, and each shows gross earnings for the pay 
period of $5,720.00. A monthly rate of pay of $5,720.00 is equivalent to an annual rate of pay of $68,640.00. 
The record also contains a cow of 
compensation fro 
shows the 
Tax Wages, tips, other Social Security Connecticut state CT state income 
year compensation wages compensation tax withheld 
2002 $64,406.86 $71,144.26 $64,406.86 $2,627.26 
2003 not submitted - 
The record also contains a copy of a pay statement of the beneficiary showing pay received from ' 
for the pay period ending May 15, 2004. That pay statement shows gross pay for the period of 
$2,916.00, for 86.67 hours of work, and gross pay for the year to date of $23,369.00. That pay statement 
shows withholding amounts for connecticit state income tax of $81.22 for the pay period and $770.46 for the 
year to date. 
In his brief, counsel states that the beneficiary resi 
That assertion is inconsistent with the Form W-2 fr 
beneficiary as already working for that company in 2 
of $71,732.00. The-~orm W-2 Wage and Tax Statement from the petitioner for 2002, pu'p~rting to show 
compensation from the petitioner to the beneficiary that year of $55,000.00, is also inconsistent with the Form 
W-2 issued b:, for 2002. Moreover, the Form W-2 from the 
petitioner for 2002 is also inconsistent with the beneficiary's statement on the Form ETA 750B that he did not 
begin working for the petitioner until September 20027 since the petitioner's Form W-2 for 2002 states 
compensation in an amount which indicates that the beneficiary worked for the petitioner for all of that year 
or for nearly all of that year. 
Counsel's assertion that the beneficia 
 resigned from the petitioner in April 2004 is also inconsistent with the 
pay statement from 
 which shows that as of May 15, 2004 the beneficiary's total 
compensation for the year to date was $26,369.00, comprised of $26,244.00 in regular pay plus $125.00 for 
an appreciation award. The pay statement appears to indicate a pay period of one half month, since it records 
87.67 hours of work ending on the 15'~ of the month. Dividing the regular earnings for the year to date by the 
regular pay for the pay period shows that the beneficiary had worked for 
periods in 2004 as of May 15, 2004, that is, since the beginning of 2004. 
On the beneficiary's Form 1-485, the beneficiary states his address to be in Simsbury, Connecticut. Since the 
1-485 was filed concurrently with the 1-140 petition on September 8, 2003, the beneficiary's address on the 
1-485 application is further evidence that the beneficiary was not working for the petitioner in the state of 
Michigan as of the date that the 1-140 petition was filed. 
While the beneficiary's employment with the new employer would ordinarily not be considered in making a 
determination of the petition's "approvability" on its initial merits, the date on which the beneficiary resigned 
from his employment with the petitioner would be relevant to any claim by the beneficiary to adjust status to 
that of permanent resident under the provisions of AC21. Since the 1-485 application was filed on September 
8, 2003, the beneficiary would have had to wait for 180 days after that date, until March 6, 2004, to make any 
claim to adjust status under AC21 based on a change of employer. The fact that the beneficiary changed jobs 
sooner than 180 days after filing the 1-485 application does not necessarily imply that either the 1-140 petition 
or the 1-485 application should be denied. But a change of jobs is relevant to the issue of whether the 
petitioner's job offer to the beneficiary was a good faith offer. See Memo. from Michael Aytes, supra, at 4. 
The statute and the regulations do not require that a beneficiary be presently employed by a petitioner at the 
time an 1-140 petition is filed. Rather the statute and the regulations require that the petitioner have the 
intention to hire the beneficiary upon the grant to the beneficiary of legal permanent resident status, either 
through the issuance of an immigrant visa or through adjustment of status to permanent resident status. Id. 
Nonetheless, in the instant case, the petitioner has submitted evidence of the beneficiary's employment with 
the petitioner as evidence that the petitioner had the intention to hire the beneficiary when it filed the 1-140 
petition. As shown above, that evidence is inconsistent with other evidence in the record, and it is also 
inconsistent with assertions by counsel in his brief. As noted above, on the 1-485 which was submitted 
concurrently with the instant 1-140 petition the beneficiary states his address to be in Simsbury, Connecticut. 
A Simsbury, Connecticut, address for the beneficiary is inconsistent with the evidence in the record 
purporting to show that when the 1-140 petition was filed the beneficiary was working for the petitioner, 
which is located in Farmington Hills, Michigan. 
The Board of Immigration Appeals, in Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988), has stated, "It is 
incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, 
and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to 
where the truth, in fact, lies, will not suffice." The record contains no explanation for the inconsistencies in 
the evidence noted above. 
The evidence fails to establish that the petitioner was an employer intending and desiring to hire the 
beneficiary when it filed the 1-140 petition. Therefore the petition must be denied on that basis. The AAO 
finds that the petition was not approvable as of the date it was filed. 
Beyond the decision of the director, the evidence raises questions about the petitioner's ability to pay the 
proffered wage during the relevant period. 
As noted above, in the ITD the director stated that because of a Department of Labor notice against the 
petitioner for unpaid wages and a resulting court order and unpaid fines, the evidence failed to establish the 
petitioner's ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence. In response to the ITD, counsel submitted a copy of a Department of 
Labor notice dated May 30, 2003 showing claims against the petitioner of unpaid wages for twenty-seven 
employees. The periods covered by the notice start on various dates in 2000 and 2001 for the employees 
listed. For one of the employees the ending date is January 6, 2001, and for the other twenty-six employees 
the ending date is June 30,2001. 
In his letter dated June 1, 2004 accompanying the submission in response to the ITD, counsel correctly states 
that the beneficiary's name is not among the twenty-seven employees on the list. Counsel then states that the 
beneficiary was fully paid by the petitioner. However, the DOL list is not evidence of that fact, since the 
Page 8 
absence of the beneficiary's name from the DOL notice is equally consistent with the conclusion that the 
beneficiary was not employed by the petitioner prior to June 30,2001. 
 I 
The regulation at 8 C.F.R. 204.5(g)(2) requires the petitioner to establish its ability to pay the proffered wage as 
of the priority date and continuing until the beneficiary obtains lawful permanent residence. Because of the 
evidentiary inconsistencies discussed above, the evidence fails to establish that ability. Even if the analysis is 
limited to the period relevant to a claim by the beneficiary to transfer his rights to a new employer under 
AC21, the evidence fails to establish the petitioner's ability to pay the proffered wage beginning on the 
January 13, 2003 priority date and continuing until the date the 1-140 petition was filed, on September 8, 
2003. The petitioner has submitted a Form W-2 of the beneficiary for the year 2003, but that document 
cannot be considered as reliable evidence of any compensation paid by the petitioner to the beneficiary in 
2003 because of the inconsistent evidence discussed above which indicates that the beneficiary was already 
working for , during the year 2002. Moreover, the only federal tax 
return of the petitioner in the record is the petitioner's Form 1120 U.S. Corporation Income Tax Return for 
2002, which is one of the years for which the record contains inconsistent evidence. For the foregoing 
reasons, even if it were assumed that the petitioner was intending and desiring to hire the beneficiary when it 
filed the 1-140 petition in September 2003, the evidence fails to establish the petitioner's ability to pay the 
proffered wage as of the January 13,2003 priority date and continuing until the September 8,2003 filing date 
of the 1-140 petition. 
In summary, the evidence fails to establish that the petitioner was an employer desiring and intending to hire 
the beneficiary when it filed the 1-140 petition. Beyond the decision of the director, the evidence fails to 
establish the petitioner's ability to pay the proffered wage beginning on the priority date and continuing until 
the beneficiary obtains lawful permanent residence. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
 1361. 
The petitioner has not met that burden. 
ORDER: The appeal is dismissed.