The Petitioner, a provider of health care professionals, seeks to employ the Beneficiary as a nurse supervisor. The Petitioner requests ~lassification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Texas Service Center denied the petition and a subsequent motion to reopen, concluding that the Petitioner had no~, as required, established its ability to pay the proffered wage to the Beneficiary and its other sponsored workers. The Petitioner appealed the matter to us and we affirmed the Director's decision.
On motion to reopen, the Petitioner submits new evidence and asserts that the record demonstrates the Petitioner's ability to pay in the totality o f the circum\tances.
Upon review, we will deny the motion to reopen.
Law
A. Employment-Based Immigration
Employment-based immigration generally follows a three-step process. First, an employer usually obtains an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). However, this petition is for a Schedule A occupation, which is an occupation codified at 20 C.F.R. § 656.5(a) for which the DOL has already determined that there are not sufficient U.S. workers who are able, willing, qualified and available and that the wages and working conditions of similarly employed U.S. workers will not be adversely affected by the employment of aliens in such occupations. Accordingly, petitions for Schedule A occupations do not require a petitioner to test the labor market and obtain a certified ETA Form 9089, Application for Permanent Employment Certification (labor certification), from the DOL prior to filing the petition with U.S. Citizenship and Immigration Services (USCIS). Instead, the uncertified ETA Form 9089 is filed directly with USCIS with the Form 1-140, Immigrant Petition for p. 2 Alien Worker. petition is filed, users determines if the immigrant visa is approvable. See section 204 of the Act, 8 U.S.e. § 1154. Finally, if users approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.e. § 1255.
B. Motion to Reopen
A motion to reopen is based on documentary evide.nce of new facts. The requirements of a motion to reopen are located at 8 e.F.R. § 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested immigration benefit.
Analysis
The issue before us on motion is whether the Petitioner has the continuing ability to pay the proffered wage to the Beneficiary and its other sponsored workers from the June 7, 2015, priority date onward. The Beneficiary's proffered wage is $93,954 per year.
The regulation 8 e.F.R. § 204.5(g)(2) states in pertinent part: \ 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 determining the Petitioner's ability to pay the proffered wage during a given period, we first examine whether the Petitioner employed and paid the Beneficiary during that period. If the Petitioner establishes by documentary evidence that it employed the Beneficiary at a salary equal to or greater than the proffered wage, the evidence will be considered proof of the Petitioner's ability to pay the proffered wage. The Petitioner may also establish its ability to pay if its net income or net current assets are sufficient to cover the difference between tile proffered wage and any wages paid to the Beneficiary. The record indicates that the Petitioner is a limited liability company (LLe) and filed its tax returns on IRS Form 1065, U.S. Return ofPartnership Income?
See 8 e.F.R. § 204.5(a)(2) and (1)(3)(i); see also 20 e.F.R. § 656.15. Next, once the I the correct fee) is properly filed with USCIS. See 8 C.F.R. § 204.5(d). 2 An LLC is an entity formed under state law by filing articles of organization. An LLC may be classified for federal income tax purposes as if it were a sole proprietorship, a partnership, or a corporation. If the LLC has only one owner, it will automatically be treated as a sole proprietorship unless an election is made to be treated as a corporation. If the LLC has two or more owners, it will automatically be considered to b~ a partnership unless an election is made to be treated as The priority date of a Schedule A petition is the date the completed, signed petition (including all initial evidence and p. 3 On motion, the Petitioner has submitted its 2015 tax return and states that its net income of $82,346 is sufficient to pay the difference between the proffered wage and the wages paid in 2015. We disagree. First, we note that the Petitioner's net income for 2015 is $72,293 as shown on Schedule K of its tax return and not $82,346 as stated by the Petitioner. income is not sufficient to cover the difference between the proffered wage and the wages paid to the Beneficiary, which amounts to $91,586. The record contains an earnings statement for the Beneficiary indicating that she had earned $2,368 in gross pay from the Petitioner as of October 10,2015. The Petitioner states that the amount in question for 2015 is $31,554 because the Beneficiary began working in October 2015. It appears that the Petitioner is indicating that the Beneficiary's proffered wage should be prorated for 2015 from the priority date to December 31st of that year. USCIS will prorate the proffered wage only if the record contains evidence of payment of the beneficiary's wages specifically covering the portion of the year that occurred after the priority date and evidence of income that was earned during the period in question (and only that period).Not eligible at the time of filing The Petitioner has not submitted evidence to support prorating in the year of the priority date.
Next we will consider whether the Petitioner has sufficient net current assets to pay the proffered wage. Net current assets are the difference between the petitioner's current assets and current 4 A partnership's year-end current assets are shown on Schedule L, lines l(d) through 6(d) and include cash-on-hand, inventories, and receivables expected to be converted to cash within one year. Its year-end current liabilities are shown on lines 15(d) through 17(d). The Petitioner's 2015 tax return states net current assets of -$145,115, which does not establish its ability to pay the difference between the proffered wage and wages paid to the Beneficiary.
In addition, the Petitioner has not shown that it can pay .the proffered wages of its other sponsored workers. In our prior decision we noted that the Petitioner has sponsored multiple beneficiaries for Form I-140, Immigrant Petition for Alien Worker, petitions. A petitioner must establish its ability to pay the proffered• wage to the beneficiary as well as the combined proffered wages of its other sponsored workers from this petition's priority date until the other beneficiaries have obtained lawful a corporation. If the LLC does not elect its classification, a default classification of partnership (multi-member LLC) or disregarded entity (taxed as if it were a sole proprietorship) will apply. See 26 C.F.R. § 301.7701-3. In this case, the petitioner, a multi-member LLC, is considered to be a partnership for federal tax purposes. 3 For an LLC taxed as a partnership, where the petitioner's income is exclusively from a trade or business, USC IS considers net income to be the figure shown on Line 22 ofpage one ofthe petitioner's IRS Form 1065, U.S. Return of Partnership Income. However, where the petitioner 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 or additional credits, deductions or other adjustments, net income is found on page 5 of Fonn 1065 at line 1 of the Analysis of Net Income (Loss) of Schedule K. See Instructions for Form 1065, at http://www.irs.gov/pub/irs-pdf/iI065.pdf (last visited Apr. 24, 2016) (indicating that Sched~le K is a summary schedule of all owners' shares of the entity's income, deductions, credits, etc.). Here, the Petitioner's net income is found on line 1 of the Analysis of Net Income (Loss) of Schedule K o f its 20 15 tax return.
According to Barron's Dictionary ofAccounting Terms 117 (3d 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 as accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). !d. at 118. liabilities.
Second, we find that this amount of net p. 4 permanent residence, or until the date their petitions are 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). We stated in our prior decision that the record does not contain earnings statements, IRS Forms W-2, or any other evidence of wages paid by the Petitioner to the other Form I-140 beneficiaries. The record also does not contain any receipt notices, labor certifications, or documentation pertaining to the petitions filed for the other sponsored workers to establish the wages offered to these workers or the Petitioner's ability to pay them. The Petitioner has not submitted this documentation on motion. Absent this documentation, we cannot find that the Petitioner's net income and net current assets as stated on its tax returns are sufficient to pay the Beneficiary's proffered wage and the proffered wages of the other sponsored workers.
On motion, the Petitioner states that its bank statements should be considered toward its ability to pay the proffered wage as far as its cash flow is concerned. We find that cash flow alone does not establish a petitioner's ability to pay the proffered wage unless it is compared against the petitioner's current liabilities. As stated above, cash is included in the calculation of net current assets, which is then compared to the current liabilities. We find that bank statements show the amount in an account on a given date and cannot show the sustainable ability to pay a proffered wage. The Petitioner has not submitted evidence to demonstrate that the funds reported on the Petitioner's bank statements somehow reflect additional available funds that were not reflected on its tax return.
The Petitioner further submits an independent auditors' report containing audited financial statements for the period of January 1, 2016, through October 31, 2016. The financial statements for this period state net income of $256,026 and net current assets of $699,294. While we note that these figures are significantly higher than the amounts stated on the Petitioner's 2015 tax return, the lack of documentation concerning the wages offered to other sponsored beneficiaries makes it unclear whether these amounts would be sufficient to pay the proffered wages of the Beneficiary arid the other sponsored workers. We also note that these figures do not represent net income or net current assets from the year of the priority date. Therefore, this report alone does not establish the Petitioner's ability to pay the proffered wages of the Beneficiary and the other sponsored workers.
USCIS may also consider the overall magnitude of the' petitioner's business activities in its determination of the ability to pay the proffered wages at issue. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). USCIS 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 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 this case, the Petitioner was established in 2009. The Form I-140 states that the Petitioner has 75 employees. We noted on appeal that USCIS records indicate the Petitioner has sponsored additional Form I-140 beneficiaries, including several with 2016 priority dates. However, on motion, the p. 5 Petitioner has not provided any additional evidence to establish its ability to pay its other sponsored workers. The Petitioner's federal income tax returns reflect annual net income amounts of $200,067 in 2013; 5 The Petitioner's tax returns state,net current assets of $147,937 in 2013; $102,937 in 2014; and -$145,115 in 2015. While we acknowledge consistent growth in the Petitioner's gross receipts from 2013 through 2015, during this period its net current assets have decreased each year and its net income has increased from 2013 to 2014 and decreased significantly from 2014 Jo 2015. Although: the audited financial statements for January through October 2016 state higher amounts of net income and net current assets, the record does not contain audited financial statements for 2015, or earlier years, to assess these figures in the totality of the circumstances and see the overall picture of its historical growth.
Conclusion
The Petitioner has not established that it has had the ability to pay the proffered wage to the Beneficiary and the other sponsored workers from the priority date onward.
ORDER: The motion to reopen is denied.
Cite as Matter ofR-E-S-R- LLC, ID# 327793 (AAO Apr. 27, 2017) $420,445 in 2014; and $72,293 in 2015.
These figures are stated on the Form I065, Schedule K, line I ofthe Analysis ofNet Income (Loss), for these years. I