Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http:/Jwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO.
Thank you, f
. : ~ . ; ~~r:~J{~
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as a manufacturer and wholesaler of dental and oral care products. 1 It seeks to permanently employ the beneficiary in the United States as a cost accountant. The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). At issue in this case is whether the terms of the labor certification require an advanced degree for the position and whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification. On appeal, the AAO identifies the additional issues of whether the beneficiary possesses the experience as required by the terms of the labor certification and whether the petitioner demonstrated its ability to pay the proffered wage from the priority date onwards.
As required by statute, the petitiOn is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). 2 The priority date of the petition is February 17, 2012.3 1 In response to a Notice of Intent to Dismiss and Derogatory Information (NOID/NDI) sent by the AAO on June 27, 2013, counsel indicated that the petitioner had been merged into a new entity, A labor certification is only valid for the particular job opportunity stated on the application form. 20 C.F.R. § 656.30( c). If the appellant is a different entity than the petitioner/labor certification employer, it must establish that it is a successor-in-interest to that entity. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986).
An appellant may establish a valid successor relationship for immigration purposes if it satisfies three conditions. First, the. successor must fully describe and document the transaction transferring ownership of all, or a relevant part of, the predecessor. Second, the successor must demonstrate that the job opportunity is the same as originally offered on the labor certification. Third, the successor must prove by a preponderance of the evidence that it is eligible for the immigrant visa in all respects. The evidence submitted in response to the AAO's NOID/NDI satisfies the conditions listed above. As a result, the entity that filed the Form I-290B Notice of Appeal or Motion, is the successor-in-interest to the petitioner, and will be referred to as the petitioner herein. 2 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 3 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d).
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis.4 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appea1.5 A petition that fails to comply with the technical requirements of the law may be denied by. the AAO even if the director does not identify all of the grounds for denial in the initial decision.6 At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts:
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In tum, DOL has the authority to make the two determinations listed in section 212(a)(14).7 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations. ·
Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany , 696 F.2d at 1008, the Ninth Circuit stated:
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b ), 8 U.S.C. § 1154(b), as one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status.
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor . . . pursuant to section 212( a )(14) of the [Act] is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
PageS
(Emphasis added.) !d. at 1009. The Ninth Circuit, citing K.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. !d. § 204(b), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983).
The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984).
Therefore, it is
The regulation at 8 C.P.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.P.R.§ 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty.
In the instant case, the petitioner claims that the beneficiary may be classified as an advanced degree professional based on a foreign equivalent degree to a U.S. bachelor's followed by at least five years of progressive experience in the specialty.
Part H of the labor certification states that the offered position has the following minimum requirements:
H.4.
H.4-B
H.5.
H.6.
H.7.
H.8.
H.8-A
H.8-B
H8-C
H.9.
H.lO.
H.14.
Education: Master's degree.
Major field of study: Accounting.
Training: None required.
Experience in the job offered: 12 months.
Alternate field of study: Economics.
Alternate combination of education and experience: Accepted.
Alternate education accepted: Other.
Other education accepted: Bachelor's degree or any suitable combination of education, training, or experience.
Number of years acceptable in H.8: 5 years.
Foreign educational equivalent: Accepted.
Experience in an alternate occupation: None accepted.
Specific skills or other requirements: Requires a Master's Degree in Accounting or Economics and 1 year of experience. In lieu of, will accept a Bachelor's Degree in Accounting or Economics and 5 years of experience, or any suitable combination of p. 7 education, training or experience thereof. Must have a Bachelor's Degree in Accounting or Economics or combination of academic education equal to a Bachelor's Degree and 5 years of experience. Experience can be progressive. No less than a Bachelor's Degree and 5 years of experience.
The director correctly noted in his decision that the language of the labor certification seems to be in conflict as the labor certification seems to allow for a combination of education, experience, and training less than a bachelor's degree, but then states in Part H.14 that ''No less than a Bachelor's Degree and 5 years of experience" would be accepted. The AAO does not interpret the language to mean that the employer would accept lesser qualifications than the stated primary and alternative requirements on the labor cert, and it would potentially make any labor cert with alternative requirements ineligible for classification as an advanced degree professional. See the following Board of Alien Labor Certification Appeals (BALCA) decisions: Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) and Matter of Agma Systems LLC, 2009-PER-00132 (BALCA Aug. 6, 2009). As a result, that portion of the director's decision indicating that the labor certification does not require an advanced degree is withdrawn.
The petition is not approvable, however, as the beneficiary does not meet the minimum education qualifications of the position. The petitioner must establish that the beneficiary satisfied all of the educational, training, experience and any other requirements of the offered position by the priority date. 8 C.P.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971).
In evaluating 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, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). Even though the labor certification may be prepared with the beneficiary in mind, USCIS has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006).
When the beneficiary relies on a bachelor's degree (and five years of progressive experience) for qualification as an advanced degree professional, the degree must be a single U.S. bachelor's (or foreign equivalent) degree. The Joint Explanatory Statement of the Committee of Conference, published as part of the House of Representatives Conference Report on the Act, provides that "[in] considering equivalency in category 2 advanced degrees, it is anticipated that the alien must have a bachelor's degree with at least five years progressive experience in the professions." H.R. Conf. Rep. No. 955, 10151 Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 6784, 1990 WL 201613 at 6786 (Oct. 26, 1990).
In 1991, when the final rule for 8 C.P.R. § 204.5 was published in the Federal Register, the legacy INS responded to criticism that the regulation required an alien to have a bachelor's degree as a minimum and that the regulation did not allow for the substitution of experience for education. p. 8 NON-PRECEDENT DECISION ·
After reviewing section 121 of the Immigration Act of 1990, Pub. L. 101-649 (1990) and the Joint Explanatory Statement of the Committee of Conference, the Service specifically noted that both the Act and the legislative history indicate that an alien must have at least a bachelor's degree: The Act states that, in order to qualify under the second classification, alien members of the professions must hold "advanced degrees or their equivalent." As the legislative history ... indicates, the equivalent of an advanced degree is "a bachelor's degree with at least five years progressive experience in the professions." Because neither the Act nor its legislative history indicates that bachelor's or advanced degrees must be United States degrees, the Service will recognize foreign equivalent degrees.
But both the Act and its legislative history make clear that, in order to qualify as a professional under the third classification or to have experience equating to an advanced degree under the second, an alien must have at least a bachelor's degree.
56 Fed. Reg. 60897, 60900 (Nov. 29, 1991) (emphasis added).
In Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held that, in professional and advanced degree professional cases, where the beneficiary is statutorily required to hold at least a baccalaureate degree, users properly concluded that a single foreign degree or its equivalent is required. Where the analysis of the beneficiary's credentials relies on work experience alone or a combination of multiple lesser degrees, the result is the "equivalent" of a bachelor's degree rather than . a "foreign equivalent degree. "8 In order to have experience and education equating to an advanced degree under section 203(b )(2) of the Act, the beneficiary must have a single degree that is a "foreign equivalent degree" to a United States baccalaureate degree. See 8 C.F.R. § 204.5(k)(2).
The beneficiary's degree must also be from a college or university. The regulation at 8 C.F.R. § 204.5(k)(3)(i)(B) requires the submission of an "official academic record showing that the beneficiary has a United States baccalaureate degree or a foreign equivalent degree." For classification as a member of the professions, the regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) requires the submission of "an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study." The AAO cannot conclude that the evidence required to demonstrate that a beneficiary is an advanced degree professional is any less than the evidence required to show that the beneficiary is a professional. To do so would undermine the congressionally mandated classification scheme by allowing a lesser evidentiary standard for the more restrictive visa classification. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3d Cir. 1995) per APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003) (the basic tenet of statutory construction, to give effect to all provisions, is equally applicable to regulatory 8 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) (defining for purposes of H-lB nonimmigrant visa classification, the "equivalence to completion of a college degree" as including, in certain cases, a specific combination of education and experience). The regulations pertaining to the immigrant classification sought in this matter do not contain similar language. p. 9 construction). Moreover, the commentary accompanying the proposed advanced degree professional regulation specifically states that a "baccalaureate means a bachelor's degree received from a college or university, or an equivalent degree." (Emphasis added.) 56 Fed. Reg. 30703, 30706 (July 5, 1991).9
Thus, the plain meaning of the Act and the regulations is that the beneficiary of an advanced degree professional petition must possess, at a minimum, a degree from a college or university that is a U.S. baccalaureate degree or a foreign equivalent degree.
In the instant case, Part J of the labor certification states that the beneficiary possesses a Bachelor's degree from India, completed in 2004. The record contains a copy of the beneficiary's Bachelor of Arts in Economics diploma and transcripts from University of Delhi, India, issued in 2005. The record also contains records from the Association of Chartered Certified Accountants (ACCA) stating that the beneficiary completed Professional Parts 1 and 2 of the ACCA examinations.
The record also contains two evaluations prepared by the Academic Credentials Evaluation Institute, Inc. (ACEI) and _ _ Both evaluations conclude that the beneficiary holds the equivalent of a U.S. bachelor's degree based on a combination of her Bachelor of Arts in Economics and completion of the exam requirements for membership in ACCA. 1° Counsel notes on appeal that the ACEI evaluation was conducted to determine the beneficiary's qualification to sit for the Certified Public Accountant (CPA) examination and that the Board of CPAs will not permit examination of any applicant who does not possess a U.S. bachelor's degree or its foreign equivalent.
On appeal, counsel states that ACCA membership standing alone is equivalent to a U.S. bachelor's degree and is not a combination degree. We agree. However, although membership in ACCA11 is equivalent to a U.S. bachelor's degree, as is explained above, for classification as an advanced degree professional, the beneficiary must possess a foreign degree from a college or university that is equivalent to a U.S. bachelor's degree. ACCA is not an institution of higher education that can confer a degree.12 The Board of CP As is an independent body which operates under its own regulations and definitions and is not subject to the language found in 9 C.F. R. § 204(k)(2). As a result, it is entirely conceivable that a CPA applicant may possess a foreign equivalent to a U.S. bachelor's degree that qualifies them to sit for the CPA exam, but does not possess a foreign equivalent degree to qualify the applicant for approval of an EB-2 petition.Degree not shown to be a U.S. advanced degree equivalent Therefore, the beneficiary possesses the "equivalent" of a bachelor's degree rather than a "foreign equivalent degree" within the meaning of 8 C.F.R. § 204.5(k)(2) and does not possess the education required by the terms of the labor certification.
Beyond the decision of the director, the evidence in the record does not establish that the beneficiary possesses the five years of experience required by the terms of the labor certification. Part K of the labor certification states that the beneficiary possesses the following employment experience:
- Cost Accountant with the petitioner in California from January 1, 2012 until the filing of the labor certification on February 17, 2012.
- Cost Accountant with California from May 21, 2008 until December
30, 2011.
- Cost Accountant with in New Delhi, India from October 1, 2006 to May 20, 2008.
Representations made on the certified ETA Form 9089, which is signed by both the petitioner and the beneficiary under penalty of perjury, clearly indicate that the beneficiary's experience with the petitioner or experience in an alternate occupation cannot be used to qualify the beneficiary for the certified positionY Specifically, the petitioner indicates that questions J.l9 and J.20, which ask 11 The evidence submitted states that the beneficiary completed the exam component qualifying her for ACCA membership. No evidence was submitted to demonstrate that the beneficiary possesses ACCA associate membership. In any further filings, the petitioner should submit evidence that the beneficiary was an ACCA associate member before the priority date.
(4)(i) Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought; and (i) If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.
(ii) Actual minimum requirements. DOL will evaluate the employer's actual minimum requirements in accordance with this paragraph (i).
(1) The job requirements, as described, must represent the employer's actual minimum requirements for the job opportunity.
(2) The employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.
(3) If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer's actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee. The employer can not require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless:
(i) The alien gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or (ii) The employer can demonstrate that it is, no longer feasible to train a worker to qualify for the position.
( 4) In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants.
(5) For purposes of this paragraph (i):
(i) The term "employer" means an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at§ 656.3. p. 12 about experience in an alternate occupation, are not applicable. In response to question J.21, which asks, "Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?," the petitioner answered "no." In general, if the answer to question J.21 is no, then the experience with the employer may be used by the beneficiary to qualify for the proffered position if the position was not substantially comparable14 and the terms of the ETA Form 9089 at H.10 provide that applicants can qualify through an alternate occupation. Here, the beneficiary indicates in response to question K.l. that her position with the petitioner was as a cost accountant, and the job duties are the same duties as the position offered. A letter dated July 24, 2012 from HR Manager for the petitioner, states that the beneficiary worked with the petitioner from May 21, 2008 to the date of the letter, July 24, 2012. This letter indicates that is the same entity as the petitioner either being directly affiliated, being subsumed by the petitioner, or some other business arrangement. In addition, the letter states that the beneficiary was employed from May 21, 2008 through October 2011 as Business Development Manager and in October 2011,. became an International Cost Accountant. Therefore, the experience gained with the petitioner from October 2011 to the present was in the position offered and is substantially comparable as she was performing the same job duties more than 50 percent of the time. According to DOL regulations, therefore, the petitioner cannot rely on this experience for the beneficiary to qualify for the proffered position. Additionally, as the terms of the labor certification supporting the instant I-140 petition do not permit consideration of experience in an alternate occupation, to the extent that the beneficiary's experience with the petitioner was as a business development manager from May 21, 2008 to October 2011, the experience may not be used to qualify the beneficiary for the proffered position.
(ii) A "substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.
The petitioner also submitted a letter from stating that she was employed as the sales and marketing manager from October 1, 2006 to May 21, 2008.15 First, the letter does not contain the name and title of its author as required by 8 C.F.R. § 204.5(g)(1) and (1)(3)(ii)(A) as the signature is illegible and the line beneath the signature indicates that the person is an "authorized signatory" only. Second, the letter states that the beneficiary worked as a sales and marketing manager with the company. Part H.10 of the labor certification states that ex erience in an alternate occupation will not be accepted. The position as titled and described in the letter is not that of a cost accountant. As a result, the beneficiary's experience with may not be considered towards her qualification for the proffered position of cost accountant. Therefore, the submitted experience letters do not establish that the beneficiary possessed five years of post-baccalaureate experience in the specialty.
After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty.Five years of progressive experience not documented Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.
For the reasons explained above, the petitioner has failed to establish that the beneficiary possesses the required experience for the offered position. Accordingly, the petition must be denied for this reason.
In summary, the petitioner failed to establish that the beneficiary possessed an advanced degree as required by the terms of the labor certification and the requested preference classification. Therefore, the beneficiary does not qualify for classification as a member of the professions holding an advanced degree under section 203(b )(2) of the Act. The director's decision denying the petition is affirmed.
Beyond the decision of the director, the petitioner has also failed to establish its ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. See 8 C.P.R.§ 204.5(g)(2).
In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the petitioner has paid the beneficiary the full proffered wage each year from the priority date. If the petitioner has not paid the beneficiary the full proffered wage each year, USCIS will next examine whether the petitioner had sufficient net income or net current assets to pay the difference between the wage paid, if any, and the proffered wage.16 If the petitioner's net income or net current assets is not sufficient to demonstrate the petitioner's ability to pay the proffered wage, US CIS may also consider the overall magnitude of the petitioner's business activities. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).
In the instant case, the petitioner submitted no evidence of its ability to pay from the priority date onwards. The record contains an Internal Revenue Service Form W -2 evidencing wages paid to the beneficiary in 2011 and a Form 1120 for 2010, however, those documents predate the priority date. The petitioner submitted two paystubs evidencing wages paid to the beneficiary through May 30, 2012, however, the year to date wages paid of $19,078.82 are less than the proffered wage of $60,300.00.
In addition, according to USCIS records, the petitioner has filed 20 1-140 petitions on behalf of other beneficiaries since 2000 including five Forms 1-140 filed after the priority date in the instant case. The petitioner has filed an additional 70 Form 1-129 petitions since 2000. Accordingly, 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 of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977).
The evidence in the record does not document the priority date, proffered wage or wages paid to each beneficiary, whether any of the other petitions have been withdrawn, revoked, or denied, or whether any of the other beneficiaries have obtained lawful permanent residence. Thus, the evidence in the record does not establish the petitioner's ability to pay the proffered wage to the beneficiary and the proffered wages to the beneficiaries of its other petitions.
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 16 See River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); 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); and Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), affd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). p. 15 establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. ORDER: The appeal is dismissed.