The Petitioner, a private school, seeks to employ the Beneficiary as a science department instructional coordinator. It requests his classification as a member of the professions holding an advanced degree under the second-preference, immigrant category. See 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 U.S. employers to sponsor foreign nationals for lawful permanent resident status if they have master's degrees, or bachelor's degrees t(.)llowed by five years of experience.
The Director of the Texas Service Center denied the petition and the Petitioner's following motions to reopen and reconsider. The Director concluded that the record did not establish the Petitioner's required ability to pay the proffered wage.
On appeal, the Petitioner submits additional evidence and asserts that the totality of the circumstances demonstrates its ability to pay.
Upon de novo review, we will dismiss the appeal.
Law
Employment-based immigration generally follows a three-step process. First an employer tiles a labor certification application with the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § ll82(a)(5)(A)(i). DOL must certify that the United States lacks able, willing. qualified, and available workers for an offered position, and that employment of a foreign national will not hurt the wages and working conditions of U.S. workers with similar jobs. !d. If DOL approves the labor certification application, the employer then tiles an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Finally, if USCIS approves a 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.C. § 1255.
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To obtain petition approval, a petitioner must, among other things, demonstrate its continuing ability to pay a proffered wage from a petition's priority date until a beneficiary obtains lawful permanent Evidence of ability to pay must include copies of annual reports, federal income tax returns, or audited financial statements. !d.
Analysis
Here, the labor certification states the proffered wage of the offered position of science department instructional coordinator as $59,883 a year. The petition's priority date is June 30, 2015. In determining ability to pay, USCIS examines whether a petitioner paid a beneticiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage each year, USCIS considers whether it generated annual amounts of net income or net current assets sufficient to pay the difference between the protTered wage and any wages paid. If net income and net current assets are insufficient, USCIS may consider other factors affecting a petitioner's ability 2 to pay. See Mauer ofSonegawa. 12 I&N Dec. 612,614-15 (Reg'l Comm'r 1967).
The Petitioner submitted evidence that it has employed the Beneficiary since the pnonty date, including additional evidence on appeal of his employment in 2016. Copies of IRS Forms W-2. Wage and Tax Statements, indicate that the Petitioner paid the Beneficiary $19,209.38 in 2015 and $60,162.52 in 2016.
The amount on the Form W-2 for 2016 exceeds the annual proffered wage of $59,883. The record therefore demonstrates the Petitioner's ability to pay the proffered wage in 2016. The amount on the Fmm W-2 for 2015, however, does not equal or exceed the proffered wage. The record therefore does not establish the Petitioner's ability to pay the protJered wage in 2015 based on wages paid to the Beneficiary.
Nevertheless, we credit the Petitioner's 2015 payment to the Beneficiary, and the Petitioner need only demonstrate its ability to pay the difference between the proffered wage and the wages paid, or $40,673.62. The Petitioner is a nonprofit corporation, exempt from federal income taxes. But it submitted copies of its IRS Forms 990, Returns of Organization Exempt from Income Tax, for 3 residence. 8 C.F.R. § 204.5(g)(2).
In both fiscal years, the returns indicate that the Petitioner's expenses exceeded its revenues. The record therefore does not establish the Petitioner's ability to pay in 2015 based on its net income.
The priority date of a petition accompanied by a labor certification is the date DOL accepted the labor application for processing. 8 C.F.R. § 204.5(d).
Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See. e.g.. River St. Donuts. LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Estrada-Hernande::: 1'. Holder. I08 F. Supp. 3d 936, 942-43 (S.D. Cal. 20 15).
·' The Petitioner's fiscal year runs from June I through May 31. The Petitioner also submitted copies of audited financial statements for fiscal years 2014-15 and 2015-16. The information on the financial statements does not materially differ from that on the tax returns.
2014-15 and 2015-16.
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The Petitioner's tax returns also reflect negative amounts of net current assets for 2014-15 and 2015-16. The record therefore does not establish the Petitioner's ability to pay the proffered wage in 2015 based on its net current assets. Thus, after examinations of the wages the Petitioner paid the Beneficiary and its annual amounts of net income and net current assets, the record does not establish its ability to pay the proffered wage from the petition's priority date onward.
In addition, USCIS records indicate the Petitioner's filing of another petition that remained pending after this petition's priority date. to pay the proffered wage of each petition it tiles from the priority date until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Here, because the other petition remained pending or approved after this petition's priority date, the Petitioner must demonstrate its ability to pay the combined proffered wages of both petitions. The Petitioner must establish its ability to pay the combined wages from this petition's priority date until the other beneficiary obtained lawful permanent residence, or until the other petition was denied. withdrawn, or revoked. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (atlirming our revocation of a petition where, as of its approval, the petitioner did not demonstrate its ability to pay the combined proftered wages of multiple, pending petitions).
The record does not indicate the proffered wage of the Petitioner's other petition. or whether the Petitioner paid its beneficiary any wages. The record also does not indicate whether the other petition was withdrawn, revoked, or denied, or whether its beneficiary obtained lawful permanent residence. Thus, for this additional reason, the record does not establish the Petitioner's continuing ability to pay the proffered wage. In any future filings in this matter, the Petitioner must demonstrate its ability to pay the combined proffered wages of both petitions.
On appeal, the Petitioner asserts that we should treat the "deferred revenue" recorded on its tax returns as income or current assets. The Internal Revenue Service (IRS) detines "deferred revenue,. as "revenue the organization has received but not yet earned.'' consisted of registration and tuition fees that students paid before attending classes. Because the Petitioner had not yet earned the revenue, it did not count the payments as income until the school began teaching the students. But for the revenue's deferment, the Petitioner states that it "would have shown ample net income in the millions of dollars."
We decline, however, to recognize the Petitioner's deferred revenue as income. The record indicates that the Petitioner uses the accrual accounting method. This method treats the early student payments as liabilities rather than as income, recognizing that the school will not earn the revenue until it begins teaching the students. Whether the Petitioner's deferred revenue is a current or long- term liability depends on when the teaching will begin. If classes start within a year, the deferred revenue is a current liability. See Joel G. Siegel & Jae K. Shim, Barron's Dictionary olAccountinK Terms, 118 (3d Ed. 2000) (defining the term ''current liabilities'' as obligations generally payable IRS,"InstructionsforForm990,"47.athttps:l/www.irs.gov/pub/irs-pdf/i990.pdf(lastvisitedJune 15,2017). USCIS records identify the receipt number of the other petition as As previously indicated, a petitioner must demonstrate its ability The Petitioner's deferred revenue
Matter qfF-S-A-P-, within a year). Here, notes to the Petitioner's financial statements indicate that it receives deferred revenue "for the next school term." Because the Petitioner's school terms occur annually, the record indicates that its deferred revenue amounts are due within a year. We will therefore treat the Petitioner's deferred revenue amounts as current liabilities, not as income.
The record indicates that treating the deferred revenue as current liabilities fairly considers the revenue. The Petitioner counted its deferred revenue from 2013-14 as income in 2014-15, and its deferred revenue from 2014-15 as income in 2015-2016. As such, deferred revenue has been included and considered in the calculation of the Petitioner's ability to pay in the appropriate years. We will not allow the Petitioner to change its accounting method in an effort to more quickly recognize the deferred revenue as income for immigration purposes.
The Petitioner also asserts that the Director erred in rejecting the offer of the school"s principal to forego part of his $100,000 annual salary to pay the Beneficiary's protTered wage. The regulations. however, require the Petitioner alone to possess the ability to pay. See 8 C.F.R. § 204.5(g)(2) (requiring "evidence that the prospective United States employer has the ability to pay the proffered wage"). A corporation is a separate and distinct entity from its shareholders. officers, and employees. Matter o{Aphrodite Inv. Ltd., 17 I&N Dec. 530, 531 (Comm'r 1980) (citation omitted). As a federal court ruled in a similar case: "[N]othing in the governing regulation. 8 C.F.R. § 204.5. permits [USCIS] to consider the financial resources of individuals or entities who have no legal o b l i g a t i o n t o p a y t h e w a g e . " S i t a r R e s t . v . Ashcn~fi, N o . C i v . A . 0 2 - 3 0 1 9 7 - M A P . 2 0 0 3 W L 22203713, *2 (D. Mass. Sept. 18, 2003).
We have accepted portions of discretionary, officer compensation amounts as evidence of corporations' abilities to pay proffered wages if the otlicers were also shareholders of the entities. Here, however, the record does not establish the Petitioner's principal as a shareholder of the nonprofit corporation, or his salary amount as discretionary in nature. The record also does not establish the principal's financial ability to forego a portion of his salary. The Director therefore properly rejected the principal's offer to pay a portion of the Beneficiary's protTered wage.
As the Petitioner urges, in determining ability to pay. we may consider evidence beyond a petitioner's amounts of net income and net current assets. Under Sonegcrwa. we may consider such factors as: the number of years a petitioner has conducted business; its number of employees; the growth of its business; its incurrence of uncharacteristic business expenditures or losses; its reputation in its industry; whether a beneficiary will replace a current employee or outsourced service; or other evidence of its ability to pay the proffered wage. Matter ofSonegmra, 12 l&N Dec. at 614-15.
Here, the record indicates that the Petitioner·s student population and annual revenues have grown over the past few years. In addition, the record establishes that, like the petitioner in Sonegawa, the Petitioner has an outstanding reputation in its field.
However, contrary to the Petitioner's assertion, the record does not establish that its relocation to a larger facility in 2015 hurt its finances. The Petitioner's rent increased in 2015. but its new facility appears to have attracted new students, significantly increasing the school's revenues. The Petitioner's tax returns indicate that it generated more revenue per student after its relocation.
Also, unlike the petitioner in Sonegawa, which conducted business for more than 10 years. the Petitioner here was established only about five years ago. In addition, unlike the petitioner in Sonegawa, the Petitioner must demonstrate its ability to pay the combined proffered wages of multiple petitions. Thus, after careful consideration, we find that the totality of the circumstances does not establish the Petitioner's ability to pay the proffered wage.
The Offered Position As of the Petition's Priority Date
Although unaddressed by the Director, the record also does not establish the Petitioner's intention to employ the Beneficiary in the offered position as of the petition's priority date. An organization may petition for a foreign national if it is "desiring and intending to employ [him or her] within the United States." Section 204(a)(l )(F) of the Act. A petitioner must establish that its job offer was realistic as of a petition's priority date and remained realistic until the beneficiary obtained lawful permanent residence. Matter ofGreat Wall. 16 I&N Dec. 142. 144 (Acting Reg'l Comm'r 1977) (holding that a petition "seeks to establish that the employer is making a realistic job offer ... at the time the petition is filed").
Here, the labor certification indicates the Petitioner's intention to employ the Beneficiary as a science department instructional coordinator at the high school level. The labor certification states that the position involves developing high school science instructional materials. advising high school science teachers, and overseeing all high school science syllabi. In addition to a bachelor's degree, the position requires at least five years of experience as a high school science teacher.
As of the petition's June 30, 2015, priority date, however. the record does not establish the Petitioner's intention to employ the Beneficiary in the offered position. An August 31. 2015. news article about the opening of the Petitioner's current facility cites the school's principal as saying that "he hopes to begin offering high school classes next year." The news article indicates that. as of the petition's priority date, the Petitioner did not teach high school students. Thus, the record indicates that, as of that date, the Petitioner did not intend to employ the Beneficiary in the offered position. which involves coordinating a high school science curriculum.
In any future filings in this matter, the Petitioner must establish its intention to employ the Beneficiary in the offered position as of the petition's priority date.
Conclusion
The record does not establish the Petitioner's ability to pay the proffered wage from the petition's priority date onward. We will therefore aftirm the Director's decision.
ORDER: · The appeal is dismissed.
Cite as Matter ofF-S-A-P- ID# 504695 (AAO Aug. 18. 2017)