Non-Precedent Decision of the Administrative Appeals Office MATTER OF A-S- INC. DATE: AUG. 16, 2018 APPEAL OF NEBRASKA SERVICE CENTER DECISION PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a provider of information technology (IT) consulting services, seeks to employ the Beneficiary as a senior software programmer analyst. It requests his classification under the second- preference immigrant category as a member of the professions holding an advanced degree or its equivalent. Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). This employment-based, "EB-2" category allows a U.S. business to sponsor a foreign national with a master's degree, or a bachelor's degree followed by five years ofexperience, for lawful permanent resident status.
The Acting Director of the Nebraska Service Center denied the petition. Interpreting the accompanying certification from the U.S. Department of Labor (DOL) to allow less than an advanced degree, the Director concluded that the labor certification does not support the requested classification.
On appeal, the Petitioner submits additional evidence and asserts that the Director misinterpreted the labor certification. The Petitioner contends that a master's degree is the offered position's minimum educational requirement.
Upon de novo review, we will withdraw the Director's decision and remand the matter for the entry o f a new decision consistent with the following analysis.
Employment-Based Immigration
Employment-based immigration generally follows a three-step process. To permanently fill a position in the United States with a foreign worker, an employer must first obtain DOL certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position, and that employment of a foreign national will not harm wages and working conditions of U.S. workers with similarjobs. Id If the DOL approves a position, an employer must next submit the certification with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a Beneficiary meets the DOL- p. 2 Matter ofA-S-Jnc. certified requirements of a position and regulatory requirements for a requested classification. If USCIS approves a petition, a foreign national may finally apply for an immigrant visa abroad or, if eligible, adjustment ofstatus in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.
The Validity of the Labor Certification
Unless accompanied by an application for Schedule A designation or documentation of a beneficiary's qualifications for a shortage occupation, a petition for an advanced-degree professional must include a valid, individual labor certification. 8 C.F.R. § 204.5(k)(4)(i). For EB-2 classification, a labor certification "must demonstrate that the job requires a professional holding an advanced degree." Id The term "advanced degree" means: any United States professional or academic degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressively responsible experience in the specialty shall be considered the equivalent of a master's degree.
Matter o fA-S- Inc. service. The Petitioner states that, as indicated on the labor certification, it will not accept less than a master's degree for the offered position.
The plain language of part H.14 supports the Petitioner's statements. Part H.14 describes an acceptable foreign educational equivalency rather than the minimum educational requirements ofthe offered position. Consistent with regulations, Part H.14 states the Petitioner's acceptance of an evaluation "on the basis of [a] foreign education credential only." See 8 C.F.R. § 204.5(k)(2) (requiring an advanced degree professional, in lieu of a bachelor's degree followed by five years of experience, to have a single U.S. or foreign degree above that of baccalaureate). Part H.14 does not indicate the Petitioner's acceptance of less than a master's degree, nor of a master's equivalency based on combinations of lesser degrees or of education and employment experience.
Thus, contrary to the Director's finding, the plain language of the labor certification states an advanced degree as the minimum educational requirement ofthe offered position. We will therefore withdraw the Director's decision.
Ability to Pay the Proffered Wage
Although the Petitioner has overcome the denial ground, the record does not establish the petition's approvability. A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. §204.5(g)(2).1 Evidence ofability to pay must include copies ofannual reports, federal income tax returns, or audited financial statements. Id Here, the labor certification states the proffered wage of the offered position of senior software programmer analyst as $94,827 a year. As ofthe petition's filing and decision, required evidence of the Petitioner's ability to pay the proffered wage was not yet available for 2017, the year of the petition's priority date. The record therefore does not establish the Petitioner's ability to pay from the petition's priority date onward.
Also, USCIS records indicate the Petitioner's filing of other immigrant petitions that were pending or approved as of the petition's priority date, or were submitted thereafter. A petitioner must demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary obtains lawfulpermanentresidence. 8C.F.R.§204.5(g)(2). ThePetitionerheremustthereforedemonstrate its ability to pay the combined proffered wages of this and its other applicable petitions from June 21, 2017, until the beneficiaries obtained lawful permanent residence. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval where, as of the filing's grant, a petitioner did not demonstrate its ability to pay combined proffered wages of This petition's priority date is June 21, 2017, the date the DOL accepted the accompanying labor certification application for processing. See 8 C.F.R. § 204.S(d) (explaining how to determine a petition's priority date).
Matter ofA-S- Inc.
Because additional evidence is required to determine the Petitioner's ability to pay the proffered wage, we will remand this matter. On remand, the Director should ask the Petitioner to submit copies of an annual report, federal income tax returns, or audited financial statements for 2017. The Petitioner must also provide the proffered wages and priority dates of its other petitions that were pending or approved after June 21, 2017, or were submitted thereafter.
The Petitioner may also submit additional evidence of its ability to pay, including evidence of: any wages it paid to other applicable beneficiaries in 2017; the denial, withdrawal, or revocation of any applicable petitions; any lawful permanent residence received by applicable beneficiaries; and in support of the factors stated in Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). Upon receipt of a timely response from the Petitioner, the Director should review the entire record and enter a new decision.
Conclusion
The accompanying labor certification demonstrates that the offered position requires an advanced degree professional. Additional evidence, however, is needed to establish the Petitioner's ability to pay the proffered wage.
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.
Cite as Matter ofA-S- Inc., ID# 1567098 (AAO Aug. 16, 2018) withdrawn, or revoked, without a pending appeal or motion.