sustained EB-3 Case: Software Development

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preventclearly Ullwarranted<'
mvuionofpersona!priVacY
PUBUccOpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship .
and Immigration
Services
FILE:
WAC 03 264 55279
Office: CALIFORNIA SERVICE CENTER Date: APR 2. lII1
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section'
203(b)(3)ofthe Immigration and Nationality Act, 8 U.S.c. § 1153(b)(3)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, California Service Center, denied the preference visa petition that is now
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will
be approved.
The petitioner is a computer software development 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 t.he Department o( Labor (DOL) accompanied the petition. 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 and denied the petition
accordingly.
The record shows that the appeal was properly and timely filed and makes a specific allegation of error in law
or fact. The procedural history of this case is documented in the record and incorporated into the decision.
Further elaboration ofthe procedural history will be made only as necessary.
As set forth in the direCtor's decision,of denial the. sole issue in this case is whether or not the petitioner has
demonstrated the continuing ability to pay the proffered wage beginning on the priority date.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 u.S.C. § 1153(b)(3)(A)(i),
provides for granting 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 Immigration and Nationality Act (the Ad), 8 U.S.C. § 1153(b)(3)(A)(ii),
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and
are members of the professions.
8 C.F.R. § 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 p,etitioner;
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 prospectiveUnited States employer employs 100 or more workers, the director may
accept a statement from a fmancial officer of the organization which establIshesthe 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 the Service. (
•The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority
date, the day the Form ETA 750 Application for Alien Employment Certification was accepted for processing
Page 3
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 for processing on July 18, 2001. The proffered wage as stated on the Form ETA 750 is
$100,000 per year.
The Form 1-140 petition in this matter was submitted on September 23,2003. On the petition, the petitioner
stated that it was established during 1992 and that it employs four workers. The petition states that the
petitioner's gross annual income is $941,482 but does not state the petitioner's net annual income in the space
provided. On the Form ETA 750, Part B, signed by the beneficiary on June 18, 2001, the beneficiary did not
claim to have worked for the petitioner. The petition and the Form ETA 750 both indicate that the petitioner
would employ the beneficiary in Palo Alto, California.
The AAO reviews de novo issues raised on appeal. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989).
The AAO considers all evidence properly in the record including evidence properly submitted on appeal.l
In the instant' case the record contains (1) the petitioner's 2000, 2001, 2002, 2003, and 2004 Form 1120S,
U.S. Income Tax Return for an S Corporation, (2) unaudited profit and loss statements pertinent to the
petitioner's performance during 2002 and the first eight months of 2003, (3) a letter dated December 5, 2005
from the petitioner's owner, (4) statements pertinent to the petitioner's bank account, and (5) statements
pertinent to the petitioner's owner's bank and brokerage accounts. The record does not contain any other
evidence relevant to the petitioner's continuing ability to pay the proffered wage beginning on the priority
date.
The petitioner's tax returns show that it is a corporation, that it incorporated on April 1, 1995, and that it
reports taxes pursuant to cash convention accounting and the calendar year.
. During 2000 the petitioner declared ordinary income of $174,692. The corresponding Schedule L shows that
at the end of that year the petitioner's current liabilities exceeded its current assets. This office notes,
however, that because the priority date of the instant visa petition is July 18, 2001, evidence pertinent to its
finances during previous years is not directly relevant to its continuing ability to pay the proffered wage
beginning on the priority date.
During 2001 the petitioner declared ordinary income of $90,411. The corresponding Schedule L shows that
at the end of that year the petitioner's current liabilities exceeded its current assets.
During 2002 the petitioner declared a loss of $11,490 as its ordinary income. The corresponding Schedule L
shows that at the end of that year the petitioner's current liabilities exceeded its current assets.
During 2003 the petitioner declared ordinary income of $21,476. The corresponding Schedule L shows that
at the end of that year the petitioner's current liabilities exceeded its current assets.
I The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B, which
are incorporated into the regulations at 8 C.F.R. § 103.2(a)(1). The record in the instant case provides no
reason to preclude consideration of any documents newly submitted on appeal. See Matter of Soriano, 19
1&N Dec. 764 (BIA 1988).
Page 4
During 2004 the petitioner declared a loss of $335,185 as its ordinary income. The corresponding Schedule L
shows that at the end of that year the petitioner's current liabilities exceeded its current assets.
The petitioner's owner's December 5, 2005 letter makes various assertions and observations. That letter (1)
describes the petitioner's products, its business, two positions the petitioner is attempting to fill, and the
petitioner's contacts, (2) states that the industry suffered during 2003 and 2004, but cites other companies'
gradually increasing stock prices since 2004 as evidence that the market is confident that the industry will
remain fiscally healthy, (3) states that the petitioner's self-developed software is an asset not shown on its
financial statements, (4) states that the company is able to borrow as necessary, (5) states that the petitioner
incurred expenses for outside programming services during each of the salient years, which funds could have
been used to pay the proffered wage, (6) noted the amount in the petitioner's bank accounts, and (7) stated
that he will support the petitioner with his personal funds as necessary.
-The director denied the petition on November 4, 2005.
On appeal, counsel asserted (1) that the amount of the proffered wage due during 2001 should be prorated to
reflect the portion of the year remaining on the priority date, (2) that the petitioner's depreciation deductions
should be considered in determining its ability to pay the proffered wage, (3) that the petitioner's total salary
and wage expense is an index of its ability to pay the proffered wage, (4) that the petitioner is currently
recruiting for two positions and that this is an indication that it will continue in business, (5) that the
petitioner's business suffered from a-downturn occasioned by the events of September 11, 2001, but has
released new products expected to dramatically increase its revenues. In regard to that fmal argument counsel
cited Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967) for the proposition that the petition may be
approved notwithstandingthat the petitionersuffered losses or low profits during salient years.
Further, counsel cites Ranchito Coletero, 2002-INA-I05 (Jan. 8, 200-4) for the proposition that the income
and assets of the petitioner's owner should be considered and notes that 8 C.F.R. § 204.5(g)(2) permits
consideration of other evidence, in addition to copies of annual reports, federal tax returns, or audited
financial statements, in appropriate cases.
Counsel's reliance on unaudited2 financialrecords is misplaced. The regulation at 8 C.F.R. § 204.5(g)(2) makes
clear that where a petitioner relies on fmancial statements to demonstrate its ability to pay the proffered wage,
those fmancial statements must be audited. Unaudi~ed fmancial statements are the representations of
management. The unsupported representations of management are not reliable evidence and are insufficient
to demonstrate the ability to pay the proffered wage. The unaudited fmancial statements will not be
considered.
2 In addition to the lack of an accountant's report, which must necessarily accompany audited financial
statements whenever they are presented for any purpose; those reports state that they were produced pursuant
to cash convention accounting. Because cash convention reporting is not in accordance with generally
accepted accounting principles promulgated by the American Institute of Certified Public Accountants, the
preparation of those reports pursuant to cash basis demonstrates that they were not produced pursuant to an
audit.
Page 5
Counsel's reliance on the petitioner's ability to borrow is similarlymisplaced. An indication of available credit is
not an indication of a sustainable ability to pay a proffered wage. An amount borrowed against a line of credit
becomes an obligation. The petitioner must show the ability to pay the proffered wage out of its own funds,
rather than out of the funds of a lender. The credit available to the petitioner is not part ofthe calculation ofthe
funds available to pay the proffered wage.
Counsel requests that CIS prorate the proffered wage during 2001 for the portion of the year that occurred
after the priority date. We will not, however, consider 12 months of income toward an ability to pay a
proffered wage during some shorter period any more than we would consider 24 months of income toward
paying the annual amount of the 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), the petitioner has not submitted such
evidence.
Counsel cites Ranchito Coletero, 2002-INA-I05 (Jan. 8, 200~4) for the proposition that the income and assets
of the petitioner~s owners should be considered. Counsel's argument pertinent to , is
unconvincing. The petitioner in that case was a sole proprietorship. The owners of sole proprietorships are
not merely permitted but obliged to pay the debts and obligations of their companies out of their own income
and assets.
The instant petitioner is a corporation. A corporation is a legal entity separate and distinct from its owners or
stockholders. Matter ofM, 8 I&N Dec. 24, 50 (BIA 1958; AG 1958). Because a corporation is a separate and
distinct legal entity from its owners and shareholders, its owners are not obliged to satisfy the company's
debts and obligations out of their own funds. The assets of its shareholders or of other enterprises or
corporations, therefore, cannot be considered in determining the petitioning corporation's ability to pay the
proffered wage. See Matter ofAphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm. 1980). Nothing in the
governing regulation, 8 C.F.R. § 204.5, permits CIS 'to consider the financial resources of individuals or
entities with no legal obligation to pay the wage. Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18,
2003). The income and assets of the petitioner's owner, including the balances in his bank and investment
accounts, shall not be further considered.
Counsel's reliance on the petitioner's own bank statements in this case is misplaced. First, bank statements
are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), which are the requisite
evidence of a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in
appropriate cases," the petitioner has not demonstrated that the evidence required by 8 C.F.R. § 204.5(g)(2) is
inapplicable or that it paints an inaccurate financial picture of the petitioner. Second, bank statements show
the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage.3
3 A possible exception exists to the general rule that bank accounts are ineffective in showing a petitioner's
continuing ability to pay the proffered wage beginning on the priority date. If the petitioner's account balance
showed a monthly incremental increase greater than or equal to the monthly portion of the proffered wage, the
petitioner might be found to have demonstrated the ability to pay the proffered wage with that incremental
increase during that month. If that trend continued, with the monthly balance increasing during each month in
an amount at least equal to the monthly amount of the proffered wage, then the petitioner might have shown .
the ability to pay the proffered wage during the entire salient period. That scenario is absent from the instant
Page 6
Third, no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements
somehow reflect additional available' funds that were not reported on its tax returns.
Counsel's argument that the petitioner's depreciation deduction should be included in the calculation of its
ability to pay the proffered wage is unconvincing. Counsel is correct that a depreciation deduction does not
require or represent a specific cash outlay during the year claimed. It is a systematic allocation of the cost of
. a tangible long-term asset. It may be taken to represent the diminution in value of buildings and equipment,
or to represent the accumulation of funds necessary to replace perishable equipment and buildings. But the
cost of equipm~nt and buildings and the value lost as they deteriorate are actual expenses of doing business,
whether they are spread over more years or concentrated into fewer.
This deduction represents the use of cash during a previous year, which cash the petitioner no longer has to
spend. No precedent exists that would allow the petitioner to add its depreciation deduction to the amount
. available to pay the proffered wage. See Chi-Feng Chang v. Thornburgh, 719 F.Supp. 532 (N.D. Texas 1989).
See also Elatos Restaurant Corp. v. Sava, 632 F.Supp. 1049 (S.D.N.Y. 1985). The petitioner's election of
accounting and depreciation methods accords a specific amount of depreciation expense to each given year.
The petitioner may not now shift that expense to some other year as convenient to its present purpose, nor
treat it as a fund available to pay the proffered wage.
Further, amounts spent on long-term tangible assets are a real expense, however allocated. Although counsel
asserts that they should not be charged against income according to their depreciation schedule, he does not
offer any alternative allocation of those costs.4 Counsel appears to be asserting that the real cost of long-term
tangible assets should never be deducted from revenue for the purpose of determining the funds available to
the petitioner to pay additional wages.· Such a scenario is unac<;eptable.
The petitioner's total salary and wage expense is not an index of its ability to pay additional wages. Showing
that the petitioner paid wages in excess of the proffered wage, or greatly in excess of the proffered wage, is '
insufficient. Showing that the petitioner's gross receipts exceeded the proffered wage, or greatly exceeded
the proffered wage, is insufficient. Unless the petitioner can show that hiring the beneficiary would somehow
have reduced its expenses 5 or otherwise increased its net income,6 the petitioner is obliged to show the ability
to pay the proffered wage in addition to the expense's it actually paid during a given year. The petitioner is
case, however, and this office does not purport to decide the outcome of that hypothetical case.
4 Counsel did not urge, for instance, that the petitioner's purchase of long-term assets should be expensed
during the year of purchase; rather than depreciated, for the purpose of calculating the petitioner's ability to
pay additional wages, nor did he submit a schedule of the petitioner's purchases of long-term tangible assets
during the salient years.
. 5 the petitioner might be able to show, for instance, that the beneficiary would replace another named
employee, thus obviating that other employee's wages, and that those obviated wages would be sufficient to
cover the proffered wage.
6 The petitioner might be able to demonstrate, rather than merely allege, that employing the beneficiary
would contribute more to the petitioner's revenue than the amount of the proffered wage.
Page?
obliged to show that it had sufficient funds remaining to pay the proffered wage after all expenses were paid.
That remainder is the petitioner's net income. In K.CF. 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 CIS should have considered income before
expenses were paid rather than net inc~me. \
Counsel asserts that the petitioner's losses and low profits are the result of the general decline in the
information technology field occasioned by the events of September 11, 2001. That information technology
firms suffered in that era is well known, but counsel has presented no convincing evidence that the bursting of
the dotcom bubble was due to the tragic events of September 11,2901, rather than market forces. As such,
counsel has not demonstrated that the petitioner's losses and low profits were uncharacteristic or are unlikely
to recur.
For that reason counsel's citation of Matter ofSonegawa, 12 I&N Dec. 612, is unconvincing. Sonegawa relates
to petitions filed during uncharacteristically unprofitable or difficult years and only within a framework of
significantly more profitable or successful years. During the year in which tlie petition was filed in that case the .
. petitioning entity changed business locations and paid rent on both the old and new locations for five months.
The petitioner suffered large moving costs and a period of time during which it was unable to do regular business.
This was an uncharacteristic expense that was unlikely to recur.
In Sonegawa, 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 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 that petitioner's sound
.business reputation and outstanding reputation as a couturiere.
Counsel is correct that, if losses or low profits are uncharacteristic, occur within a framework of profitable or
successful years, and are demonstrably unlikely to recur, then those losses· or low profits may be overlooked
in determining the ability to pay the proffered wage.
In the instant case, however, no unusual circumstances have been shown to exist to parallel those in
Sonegawa, nor has it be~n established that 2001,2002,2003, and 2004 were uncharacteristically unprofitable
years for the petitioner. The record does not demonstrate that the petitioner's new software releases will be
profitable. That the petitioner is recruiting for two positions and that other companies' stock values are
climbing are not convincing support for the proposition that the petitioner will resume profitable operations.
Assuming that the petitioner's business will flourish, with or without hiring the beneficiary, is speculative. This
office will further consider the opinion in Sonegawa below, however, in a different context.
The petitioner's owner is very possibly correct in stating that the petitioner owns software that· is either not
reflected as 'an asset or is carried at a book value far lower than its actual value. The petitioner's owner's
statement, however, is insufficient to establish that assertion as fact such that it sustains the petitioner's burden of
Page 8
proof in this matter. Further, even if the petitioner's owner's assertion were sufficiently demonstrated, the value
, of self-developed software would not typic,allybe a current asset. Non-current assets, as further explained below,
do not represent liquid funds available to pay additional wages.
The petitioner's tax returns show that it spent $784,464, $257,563, $152,841, and $172,982 during 2001,2002,
2003, and 2004, respectively. During 2001 that expense was listed as "Outside Services." During 2002,2003,
and 2004 that expense was listed as "Contract Programming." The petitioner's owner states that each of those
amounts was paid for non-employees to develop software for the petitioner, and that hiring the beneficiary would
have obviated those amounts, thus freeing additional funds with which the petitioner could have paid the
proffered wage.
Given that the petitioner is a software developer, this office fmds credible the assertion that an expense of that
size, so labeled, was incurred acquiring non-employee software development services, at least in large part. The
petitioner, however, provided no evidence to demonstrate how much of those amounts were paid for duties the
beneficiary could have performed, or what portion of those fees hiring the beneficiary would have obviated.
Under these circumstances, this office cannot calculate what portion of those amounts was available to pay the
wage proffered to the beneficiary. Those'amounts shall be considered, though non-numerically, below.,
The petitioner must establish that its job offer to the beneficiary is realistic. Because filing 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. The petitioner's ability to pay the proffered wage is an esse~tial element in evaluating whether ajob '
offer is realistic. SeeMatter of Great Wall, 16 I&N Dec 142 (Acting Reg. Comm. 1977). See also 8 C.F.R.
§ 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
warr~ts such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Comm.1967).
In detennining the petitioner's ability to pay the proffered wage during a given period, CIS will examine
whether the petitioner employed 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 establish that it employed and paid the beneficiary. '
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the
proffered wage during a given period, the AAO will, in addition, examine the net income figure reflected on '
the petitioner's federal income tax return, without consideration of depreciation or other expenses. CIS may
rely on federal income tax returns to assess a petitioner's ability to pay a proffered wage. 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). See also 8 C.F.R. § 204.5(g)(2).
The petitioner's net income is not the only statistic that may be used to show the petitioner's ability to pay the
proffered wage. If the petitioner's net income, if any; during a given period, added to the wages paid to the
Page 9
beneficiary during that period, if any, do not equal the amount of the proffered wage or more, the AAO will
review the petitioner's assets as an alternative method of demonstrating the ability to pay the proffered wage.
The petitioner's total assets, however, are not available to pay the proffered wage. The petitioner's total
assets include those assets the petitioner uses in its business, which will not,· in the ordinary course of
business, be converted to cash, and will not, therefore,.become funds available to pay the proffered wage.
Only the petitioner's current assets -- the petitioner's year-end cash and those assets expected to be consumed
or converted into cash within a year -- may be considered. Further, the petitioner's current assets cannot be
viewed as available to pay wages without reference to the petitioner's current liabilities, those liabilities
projected to be paid within a year. CIS will consider the petitioner's net current assets, its current assets
minus its current liabilities, in the determination of the petitioner's ability to pay the proffered wage.
Current assets include cash on hand, inventories, and receivables expected to be converted to cash or ca.sh
equivalent within one year. Current liabilities are liabilities due to be paid within a year. On a Schedule L the
petitioner's current assets are typically found at lines l(d) through 6(d).. Year-end current liabilities are
typically7shown on lines 16(d) through 18(d). If a corporation's net current assets are equal to or greater than
the proffered wage, the petitioner is expected to be able to pay the proffered wage out of those net current
assets. The net current assets are expected to be converted to cash as the proffered wage becomes due.
The proffered wage is $100,000 per year. The priority date is July 18, 2001.
During 2001 the petitioner declared ordinary income of $90,411. That amount is insufficient to pay the
proffered wage. At the end of that year the petitioner had negative net current assets. The petitioner is
unable, therefore, to demonstrate the ability to pay any portion of the proffered wage out of its net current
assets during that year.' The petitioner's ordinary income and net current assets are insufficient to demonstrate
the ability to pay the proffered wage during 2001.
During 2002 the petitioner declared a loss. The petitioner is unable, therefore, to demonstrate the ability to
pay any portion of the proffered wage out of its profits during that year. At the end of that year the petitioner
had negative net current assets. The petitioner is unable, therefore, to demonstrate the ability to pay any
portion of the proffered wage out of its net current assets during that year. The petitioner's ordinary income
and net current assets are insufficient to demonstrate the ability to pay the proffered wage during 2002.
During 2003 the petitioner declared ordinary income of $21,476. That amount is insufficient to pay the
proffered wage. At the end of that year the petitioner had negative net current assets. The petitioner is
. unable, therefore, to demonstrate the ability to pay any portion of the proffered wage out of its net current
assets during that year. The petitioner's ordinary income and net current assets are insufficient to demonstrate
the ability to pay the proffered wage during 2003.
During 2004 the petitioner declared a loss. The petitioner is unable, therefore, to demonstrate the ability to
pay any portion of the proffered wage out of its profits during that year. At the end of that year the petitioner
had negative net current assets. The petitioner is unable, therefore, to demonstrate the ability to pay any
·7 The location of the taxpayer's current assets and current liabilities varies slightly from one version of the
Schedule L to another.
Page 10
portion of the proffered wage out of its net current assets during that year. The petitioner's ordinary income
and net current assets are insufficient to demonstrate the ability to pay the proffered wage during 2004.
The petition in this matter was submitted on September 23, 2003. On that date the petitioner's 2005 tax
return was unavailable. On August 19,2005 the service center issued a request for evidence in this' matter,
requesting additional evidence of the petitioner's continuing ability to pay the proffered wage beginning on
the priority date. On that date the petitioner's 2005 tax return was still unavailable. The petitioner is relieved
of its burden to demonstrate its ability to pay the proffered wage during 2005 and later years.
The petitioner·'s ordinary income and net current assets were insufficient, in themselves, to demonstrate that
the petitioner was able to pay the proffered wage during 2001,2002,2003, and 2004. In this case, however,
this office is convinced that other factors must be considered.
The petitioner has been in business since 1992. Its gross receipts have ranged from a low of $317,258 during
2004 to a high of $2,460,061 during 2001. Although this office is unable to determine with mathematical
certainty what portion of the petitioner's contract programmer expenses hiring the beneficiary would, have
obviated, it appears that the beneficiary's hours would have replaced other technicians' hours in an amount
that would have paid a large part of, and possibly all of, the proffered wage.
This office fmds, based on the totality of circumstances test enunciated in Sonegawa, that the petitioner has
demonstrated its continuing ability to pay the proffered wage beginning on the priority date.
The burden of proof in these proceedings rests solely upon the petitioner. Section 291 of the Act, 8 U.S.c.
§ 1361. The petitioner has met that burden.
ORDER: The appeal is sustained. The petition is approved.