Degree or an Alien of Exception~! Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § U53(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 announc.e 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. fl~ase review the FOJ:"IIl 1-2908 instruction$ at http://www.uscis.gov/forms for the latest information o~ fee, filillg location, alld other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Ron Rosenberg
Chief, Administrative Appeals Office
DISCUSSION: The preference visa petition was denied by the Director, NebraskaService Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dism.issed.
Th~ petitioner is a software development Services company. It seeks to employ the beneficiary permanently in the United States as a senior programmer analyst. The petitioner requests classification of the beneficiary as. an adv(!.nced degree -professional pursuant to section 203(b )(2) of the lnlmigration a_nd Nationality Act (the Act), 8 U.S.C. § 1153(b )(2).1 ' At issue in this case is whether the terms of the labor certification require an advance degree professional for the requested preference classification; whether the beneficiary is qualified for the position; and whether the petitioner has the ability to pay the proffered wage. ·
Proceduralhistory
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by tbe U.S. l)epartment of Labor (DOL). 2 The priority date of the petition is March 28, 2012.3 .
Part H of the labor certification states that the offered position has the following minimum requirements:
H.4. Education: Master's in Computet Science.
H.5. Training: None required.
II.6. Experience in the job offered: None required.
H.7. Alternate field of study: Yes, CIS, Engg., Math, Electr., l\1'!.J1i:tgement, Business, Technology or related.
H.8. Alternate combination of education and experience: Yes, Bachelor's degtee and five yeats of experience.
H.9. Foreign educational equivalent: Accepted.
H.lO. Expenence in an alternate occupation: Yes, 60 months of experience in the position offered or a related position.
H.l4. Specific ski11_s or other requirements: a combination of lesser degrees, diplomas and/or professional certificates recognized by a certified independent credentials evaluator as an academic equivalent to a master's degtee.
Part J Of the labor certification states that the beneficiary possesses a Master of Computer Science from India, completed in 2001. The record contains a copy of the beneficiary's · 1 Section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees, whose services are sought by an employer in the Unjted States. 2 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.P.R. § 204.5(a)(2). 3 the priority date is the date the DOL accepted the labor certification for processing. See 8 C.P.R. § 204.5(d). p. 3 diploma, Master of Computer ApplicatiollS from India, completed in 2001, with a statement of marks for 2001. The re¢ord also contains a copy of the beneficiary's diploma, Bachelor of Science in Computer Science from India, completed in 1998, and a statement of marks for 1998. The record also contains the beneficiary's higher secondary course certificate from issued in 1995 and the secondary school leaving certificate from the same school issued in 1993.
The record contains an evaluation of the beneficiary's educational credentials prepared by for the on March 6, 2012. The evaluation states that, based on the number of years ·and the number of hours of coursework, and the grades obtained, the beneficiary has attained the equivalent of a Master of Science in Computer Science from an accredited United States college or university.
As set forth in the director's Match 25, 2013 denial, the ptiinaty issue in this case is whether or not the approved labor certification requires a Master's Degree or a Bachelor's degree with five years of progressive experience pursuant-to seCtion 203{b)(2) the Act. The AAO identified additional issues in a Notice of Intent to Dismiss (NOJP) issued August 1, 2013. The AAO i11dic~ted that the beneficiary's degree, Master of Computer Applications, is not the degree required by the l!ibOr certification, Master of Computer Science, and that the beneficiary did not have a degree in a related field specified in the Form 9089. Further, the AAO indicated that the petitioner did not have the ability to pay the proffered wage. · ·
In response to the AAO NOID, the petitioner submitted an opinion letter from Dr. who based on a course by course comparison of the Master of Computer Applications program with a Master of Computer Science program in the United States, concludes that the be11eficiary's Master of Computer Applications is equivalent to a Master of Computer Science from an accredited university in the United States. The petitioner further states that the language at part H.14 of the Form 9089, indicating that the petitioner would accept a combination of certificates and degrees constituting the academic equivalent of a master's degree, is subject to mote than one interpretation, and that USCIS erred in inferring only one rational meaning for the language. The petitioner discussed the use of the Kellogg language and how it applies to minimum requirements in a labor certification application. With respect to the ability to 'pay, the petitioner states that its 2012 tax retuln indicates that it has the ability to pay the beneficiary the proffered Wage, and the proffered wages to all the sponsored beneficiaries.
The petitioner's appeal is properly filed and makes a specific allegation of error in, law or fact. The AAO conducts ~ppell11te review on a de novo.basis.4 The AAO considers all pertinent evidence in 4 See 5 U,S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. U.S. Dept. ofTransp., NTSB, 925 F.2d 1147, 1149 (9th Ci:r. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltt:me v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
NON-.PRECEI)E.NT DECISION
'Page 4 the record, including new evidence properly submitted upon appeal.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
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process .
At the outset, it is important to discuss the respective roles of the DOL aQd 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 a:t section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the pqrpose of perform_ing skilled or w_lskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorhey General that-(I) there are not sqfficient 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 u11,der 20 C.F.R_, § 656, i11,volve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone ullilotieed 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 tbe aut_hority to m(l,l(e the two detenninatio,ns 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 5 The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, Notice of Appeal or Motion, which are incorpor(lted into tbe regulations by 8 C,F._R. § 103.2(a)(l). · The record in the instant case provides no reason to preclude consideration of any of the documents newly· submitted on appeal. See Matter of Soriano, 19 i&N Dec. 764 (BIA 1988).
PageS
NON-PRECEDEN1 !JECISION misrepresentation, but all matters relating to preference Classification eligibility not expressly dele8ated to DOL remain within iNS' authority .
. j
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we mu5t ronclude that Congress d.id 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 a.naly?:e alien q1,1~jficatiops, it is · for the purpose of nifiatchingn them with those of corresponding United States workers so that it will then be ''in a position to meet the requirement of the, law,n namely the section 212(a)(14) determinations. ·
Madatty v: Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on .Mada~y, 696 f.Zd at 1008, the Ninth Circuit stated:
[J]t appears t.hat tbe DOL is respq:g_sible o:gly for determining the availability of suitable American workers · for a job .and the iri:)pact of alien employment upon t_Qe . domestic labor market. . It does not appear that the DOL's role extends to determining if the alien is qualified for the job fot 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 on.e of the detelliliQ.ations incident to the INS's decision whether the alien is entitled · to sixth preferen~ status.
KRK Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th _Cit. 1983). The OO.wt relied on an ainicus brief from the bOt that stated the following:
The labor certification .· made by the Secreta.ry· 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 a,nd working ~nditions of similarly employed United States workers. . Th(! lobor certificati()n in no way ind.icates that the alien offered the certified job oppor.tunity is' qualified (or not qualified) to per[onn (he d~tti'es of that job.
(Emphasis added.) ld. at 1009.' The Ninth CirCUit, Citing K.R.K. /tvine, /tic., 699 F.2d. at 1006, revi.sit~d this issue, stating: ·
The Department of Labor (DOL) must certify that _insuffici~nJ go:m~~tic workers are available to perform ·the job and _that the alien's perforinance of the job will· not adversely affect the wages and \YOrkingconditions of similarly employed domesfic worke:rs.· lei_, § 2l2(a)(i4), 8 u.s.c. § 11S2(a)(14), The lNS then makes its own . -determination of the alien's entitlement to sixth preference status. I d.. ~ 204(1> ), p. 6 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 DOL's responsibility to detennine whether there are qualified U.S. workers available to perform the offered position, and whethe~ the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the · o:ff'ered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. Eligibility for the Classification Sought
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.P.R. § 204.5(k)(1).
The regulation at 8 C.P.R.'§ 204.5(k)(2) defines the te1111s "advanced degree" and "profession." An "advanced degree" is defined as:
[A]ny United States academic or professional 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 progressive experience in the :
·letters from current or former employer(s) showing that the alien has at least five years of progressive post -baccalaureate expenence in the· specialty.
In addition, the job offer portion of the labor certification mu8t require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a niember of the professions holding an advanced degree, and that tbe offered position req11ires, at a rpinimum, a professional holding art advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, ot a U.S. bacCalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. Counsel describes the ·petitioner's response to Part 14. as "Kellogg lang11age," whkh sho1.1ld not disqualify the position for the requested classification. Counsel argues that the regulation at 20 C.F.R. § 656.17(h)(4) compelled the inclusion of this language in the ETA Form9089 and that U.S. tJSCIS should construe this language "as a regulatory requirement of the [DOL] relating to technical lang11age in the [Program Electronic Review Management (:PERM)] form [which] does not detract from or defeat EB-2 eligibility." In support, counsel includes· a copy of the min11tes from a li1:}ison meeting on Aptil12, 2007 between the Nebraska Service Center aria the Anierican Immigration Lawyers AssoCiation (AILA). Counsel claims that these minutes show that USCIS. will interpret Kellogg language in ETA Forms 9089 to mean ''any combination that is at least equal to or greater than the specific requireillents on the fol1ll." Counsel concludes, therefore, the incl11sion of the phtase "[e]mployer defines 'a foreign educational equivalent,' in No. 9 to include:· a coml>ination of lesser degrees, diplomas and/or professional certificates recogniZed by a certified independent credentials evaluator as an academic equivalent to a master's degree" shoutd iiot be interpreted as reducing thf.! m_iniillurn requirements below a bachelor's degree and five years of work experience. When detetininilig whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term of the labor ~ttification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d 1008, 1015 (b.C. Cir. 1983). USCIS must examine ''the language Of the labor certification job requirements" in. order to determine what the job requires. Id. ··The only rational wa.nner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to ex_arnine the certified job offer exactly as it is completed by the prospective employer. See Rosedale Linden Park Compa.ny v. Smith, 59S F. Supp. 829, 833., (D.D.C. 1984) (emphasis added). USCIS's interpretation of thejob's requirements, as stated on the labor certification, must involve reading and applying the plain language of the alien employment certification application form. /d. at 834. USCIS caooot and should not reasonably be expected to look beyond the plain language ~f the labor certification that the DOL has fofiilally isst1ed or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification.
·on the ETA Form 9089 at issue in this proceeding, the petitioner specified the following educational training, and experience requirements for the job of senior progra.n'liiier analyst:
- Either, a master's degree in computer science or CIS, Engg., Math, ElectL, p. 8 Page&
NON-PRECEDENT DECISION
Management, Business, Technology or related or a "foreign educational equivalent" (Part H, lines 4, 4-B, 6, 7, 7A, 9,).
- Or, a bachelor's degree in one of those fields, or a''foreign educ~tional equivalent," and 5 years of progressive experience as ~ senior programmer analyst or in a related field (Part H, lines 8, 8-C, 9, 10, 10~A, a,nd 10-B).
- Alternatively, "Employer defines 'a foreign educational equivalent,' in No. 9 to include: a co111bination of lesser degrees, diplomas and/or professional certificates recognized by a certified independent credentials evaluator as an academic equivalent to a master's degree (Part H, box 14).
The plain language in box 14 m~kes clear; that the beneficiary c.ould fulfill the educational requirement for the proffered position without a master's degree, or even a bachelor's degree. irA combin~tion of lesser degrees, diplomas and/or professional certificates'·' could consist of less than baccalaureate level education, · or no academic component at all, as long as a "qu~lifted eval11a,tion serVice" finds that a combination of a beneficiary's lesser degrees, diplomas and certificates are equivalent to a ~aster's degree in computer science.
When the petitioner allows the beneficiary to have a bachelor's degree (a,nd five years of progressive experience) to qualify as a,n 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 Conferem::e Report on the Act, provides that "[in] considering equivalency iii 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. st . nd · · ·· . · · · · ·· . · . · No. 955, 101 Cong., .2 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 experie11ce for education. Mter 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 arid the legislative history indicate that an alien must have at least a bachelor's degree: Tbe Act states th~t, in order to qualify under the second classification, alien membets of the professions must hold "advanced degrees or their. equivalent." AS the legislative history ... indicates, the equivalent of an advanced degree is ira 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 equivale11t 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 • .
NON-PREC:EDENT DECISION
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 profession~ and advanced degree professional cases, where the bep.eficiary is statutorily required to hold at least a baccalaureate degree, USCIS properly concluded that a single foreign degree · ot its equivalent is required .. Where the. analysis of the beneficiary's credentials relies on work experience alo11e or a combination of muJtiple lesser degrees, the result is til~ "equivaJe:pJ" of a bachelor's degree rather than a "foreign equivalent degree. "8 In order to have education equating to an advanced degree· under section 203(b )(2) of the Act, ·the beneficiary must have a single degree that is the "foreign equivalent degree" of a United States baccala,ureate degree. Sei 8 C.P.R. §'204.5(k)(2).
The beneficiary's degree must also be from a college o:r university. The regqlation 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 a,s a me~nber 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 baccalavreate degree was awarded and the area of concentration of study." The AAO cannot conclude that the evidence required to demonstrate that a be11eficiary is an advanced degree professio.r;ta,l is apy 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
certificates or diplomas. Part H.14, however, specifically allows the credentials evaluator to find any combination of degrees and certificates to be the academic equivalent of a master's degree. As such, the credentials evaluator would be able to make the determinatio11 of academiG equivale11cy based on a lesser combination of credentials. fFive years of progressive experience not documented
Since the ETA Form 9089 does not require a master's degree or a bachelor's degree plus five years of progressive experience to qualify for the job, the AAO agrees with the director that the labor certification, application does not support the petitioner's request on the Form I-140 that the beneficiary be classified as an advanced degree professional. Accordingly, the petition cannot be approved.
The Minimum Requirements of the Offered Position
The petitioner must also establish that the beneficiary satisfied all of the educational, ·training, experience and any other requirements of the offered position by the priority d<~.te. 8 C.F.R. § 103.2(b )(1), (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. Cortim. 1971).
In evaluating the job offer portion of the labor certification to determi11e the required qualifications for the position, US CIS 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). · In the instant case, the labor certification states that he offered po!;ition requires a master's degree in computer science or CIS, .Engg., Math, Electr., Management, Business, Technology or related, or a p. 11 publication consultant and a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational Credentials.10 If placement recommendations are included, the Council Liaison works with the author to give feedback and the publication is subject to final review by the entire CounciL !d. USCIS con.~iders EDGE to be a reliable, peer-reviewed source of infom1ation about foreigg. credentials equivalencies.11
The EDGE database provides that, "The Master of Computer Applications represents attainment of a level of education comparable to a master's degree in the United States.,. Comparable to a degree in computer application, not computer science."12 Thus, the :EDGE database clearly states that beneficiary's degree cannot· be considered a master's degree in comp11ter science. Based on all of the evidence, the AAO finds that the beneficiary's MCA is not equivalent to a Master of Computet Science in the United States.
Upon fUrther reView, the AAO finds that the beneficiary's MCA is equivalent to arpaster's degree in a field related to CIS, Engg., Math, Electr., Management, Business, or Technology, as allowed by Part. 7 and 7ft.. of the .Form ETA 9089. Thus, the beneficiary haS the education required by the labor certification and qualifies for the proffered position under the remaining terms of the labor 6ertification. Nevertheless, because the express terms of the labor certificatio11 do not require a :r:naster's degree or a bachelor's degree from a college or university and five years of experience, the position does not qualify for classification as an advance degree professional. · The :P;etitioner's Ability to Pay
The AAO not~d in the NOID that the petitioner did not have the ability to pay the proffered wage to the beneficiary" of the instant petitioner and its other sponsored workers. The regulation at 8. C.F.R. § 204.5(g)(2) states in pertinent part: ·
Ability of prospective employer to pay wage. Any petition filed by or for an employment-based immigrant which requires an offer of employment must be accoJJ].panied by evid_ence thlit 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.
The petitioner must demonstrate the continuing ability. to pay the proffered wage beginning on the priority date, which is the date the ETA Fon11 9089, Application for Pen11arteilt Employment CertifiCation, was accepted for processing by any office within the emplqyment system of the DOL. See 8 C.P.R. § 2045( d). ;
Here, the ETA Form 9089 was accepted on March 28, 2012. . The proffered wage as stated on the ETA Form 9089 is $95,472 per year.
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the petition, the petitioner claimed to have been estCiblisb_ed in2002 and to cun:e11tly employ 31 workers. According to the tax returns in the record, the petitioner's fiscal year is.based on a calendllf year. On the ETA Fotni 9089, signed by the beneficiary on August 9, 2012, the beneficiary claimed to have worked for the petitioner since July 15, 2010.
The petitioner JJlU.St establish that its job offer to the beneficiary is a realistic <me. Because the filing of an ETA Form 9089 labor certification application establishes.a priority date for any inunigrant petition later based on the ETA Fon11 9089, the petitioner must establish that the-job offer was realistic as of the priority date and that the offer remained realistic for each yeat thereafter, until the beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential element in eval1lliting whether a job offer is realistic. See Matter of Greq,t Wall, 16 l.&N Dec. 142, 144 (Acting Reg'l Comm'r 1977); see also 8 C.ER. § 2045(g)(2). In evaluating whether a job offer is realistic, USCIS requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary',s proffered wages, although the totality of the circumstanees affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967).
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will 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 lit 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
(b)(6) ..
NON-PRECEDENT DECISION
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage during that period, USCIS will next examine tbe net income figure reflected on the petitioner's federal income tax return, without coilSideratioll of depreciation ot other expenses. River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873, 880 (B.D. Mich. 2010), aff'<!, No. 10-1517 (6tb. Cit. Nov, 10, 2011). Relia,nce on fed~ral income tax returns as a basis for detellflining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Rest. Corp, v. Sava; 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu WQodctaft Haw., Ltd. v. Feldman" 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chqng v. Thornburgh, 719 F. Supp. 532, 537 (N.D. Tex. 1989); K.C.P. Food Co~ v. Sava, 623 F. Supp. 1080, 1084 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647, 650 (N.D. IlL 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross rece:ipts and wage expense is misplaced. Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitio11er paid wages in exce:ss of the proffered wage is insufficient. ·
In K.C.P. Food Co., 623 F. Supp. at 1084, the court held that the Immigration and Naturalization Service:, now USCIS, 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 arg\lment that USCIS should have considered income before expenses were paid rather than net income. See also Taco Especial, 696 F. Supp. Zd at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses).
With respect to depreciation, the court in River Street Donuts noted:
The AAO recogniZed thilt a depreciation deduction is a systematic allocation of the cost of a tangible lopg-term asset and does not represent a specific cash expenditure during the year claimed. Furthermore, tbe AAO indicated that the.
Page l4.
The petitioner's income tax return for 2012 is the most recent return available. The petitioner's tax returns demonstrate its net income for 2012, as shown in the table below.
- In2012, the Form 1120S stated net income13 of $66,679.
Therefore, for the year 2012, the petitioner did have sufficient net income to pay the difference between the wages paid to the beneficiary and the proffered wage. However, we notified the petitioner with a Notice of Intent to Deny (NOID) on August 1, 2013, that it needed to provide additional evidence of the ability to pay an additional 34 workers, based on previously (iled alld approved Forms I-140. hi response, the petitioner states through caunsel, that the proffered wages of the additional beneficiaries, less the wages paid to the add~tional beneficiaries is deficient in the amount of -$315,864. Counsel indicates that the petitioner bas the ability to pay this all10U._Ill i_p201Z by utiliZing an accrual ba8ed accountinf method to account for accounts rece'ivable billed but not yet collected for work-performed in 2012.1
We, however, are not persuaded by an a11alysis in which the petitioner, or <myope on its behalf, seeks to rely oil tax retut:ns or fillartcial statements prepared pursuant to one method, but then seeks to shift revellue ot expenses from one year to another as convenient to the petitioner's present purpose. If revenues are not recognized in a given year pursuant to the cash accounting method then the petitioner, whose taxes-are prepared pursuant to cash rather than accrual, and who relies on its tax returns in order to show its ability to pay the proffered wage, may not use those ;reven11es as evidence of its ability to pay the proffered wage during that year. Similarly, if expenses ate recognized in a given year, the petitioner may not shift those expenses to some other yeat in an effort to show its ability to pay the proffered wage pursuant to some hybrid of accrual and cash accounting.15 The amolJilts shoW11 on the petitiom~r' s tc:JX returns shall be co11sidered as they were submitted to the IRS, not as <;trrtended pursuartt to the accountant's adjustments.
}3 Where an S corporation's income is exclusively from a trade or business, lJSCIS considers net im~ome to be the figure for ordinary income, shown on line 21 of page one ofthe petitioner's IRS Form 11ZOS. However, where an S corporation has i_ncome, credits, deductiot;lS or other adjustments from soure¢s other than a trade or business,. they are reponed on Schedule 1{. Schedule :K ha:s relevant entries for additional income, credits, deductions or other adjustments, net income is found 011 tine 18 (4006-2012) of SchedUle K. See lllsttuctions for Form 1120S, at http://WWVV.its.gov/pUb/irs'"pdf/il120s.pdf (accessed 10/28/2013) ··
!4 The petitioner's tax returns were prepared pursuant to the cash method of accounting, in which revemnds recogvized wben it is received, and expepses are recogvi?:ed wlJ,en they are paid. See http://WWW.irs.gov/publicationS/p538/at02.html#d0~1136 (accessed November 15, 2011). We would, in the alternative, have accepted . tax returns prepared pursuant to accrual method of· accounting, if those were the tax returns the petitioner had actually submitted to the Internal Revenue Service (IRS).
NON-PRECEDENT DECiSION
Counsel further asserts the petitioner's net income can be added to its net current assets to show the total amount of funds available to pay the. wage. It is clear th;~.t counsel wants to combine the petitioner's taxable income with the cash also received by the business for that year as part of the Schedule L net current assets. US CIS · will consider separately, but not in combination, the taxable income and the net current assets of a business to determine the ability of a petitioner to pay the proffered. wage on the priority date. Counsel's method would duplicate revenues received by the business during the yeai. · ·
The petitioner has provided evidence that 18 beneficiaries ate currently working and six obtained green cards from 2011 to 2013. USCIS records provide that the petitioner has sponsored a total of34 workers for immigrant visas. Moreover, another 20 bepeficiaries may be currently petitioned for as welL l'he evidence in the record does not provide the priority date, proffered wage or wages paid to 10 other beneficiaries, Whether any of these other petitions have been withdrawn, revoked, ot denied, ot whether any of the otherJO beneficiaries have obtained lawful permanent residence.
As an l)ltemate means of determining the petitioner's ability to pay the proffered w~ge, USCIS may review the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets and
Therefore, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner had not established th~t it had the continuing ability to pay the beneficiary of the instant petition a~d its other sponsored workers the proffered wage as of the priority date through an examin~tion of w~ges paid to the beneficiaries, or its net income or net current assets. · USCIS may consider the overall magnitude of the petitioner's business activities in its determination of the petitioner's ability to pay the proffered Wage. See Sonegawa, 12 I&N Dec. at 614-15. The petitioning entity in Sonegawa had been in business for over 11 years and routinely e~.ed a gro$S annual income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months. There were large moving costs and also a period of tirtle when the petitioner was unable to d.o regular business. The Regional Commissioner determined that the pethi9ner' s prospects for ~ resumption of successful business operations were well established. Tlie peHtioner w~s ~ fashion designer whose work had been ~eatured in Time anq Look magazines. Her clients included Miss Universe, movie actresses, and society m~tro~s. The petitioner's clients had been included in the lists of 'the best-dressed C~lifomia women. The petitioner lectured oil fashion design at design and :fl:l.Shion shows throughout the United States aiid at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, USCIS may; at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. USCIS may consider such factors as the number of ye~s 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 benefici~UY is replacing a former employee or an outsourced service, or any other evidence that USCIS deems relev.ant to the petitioner's ability to pay the proffered wage. i In the inStant case, the petitioner claims to have been in business since 2002 and to employ 31 workers. The petitioner has also paid substantial w~ges in 2012 to its workers. However, the record c;loes not cont~in evidence of established historical growth of the petitioner's business, the occurrence ofany uncharacteristic business expendirutes or losses, the petitioner's reputation within its industry, or wbether the beneficiary is replacing a former employee ot art outsourced service. The petitioner claims to employ 31 workers, '.however it has petitioned for over 34 immigrant workers, for whom it must establish an ability to pay the proffered wage from an analysis of its net income or . net current assets. Thus, assessing the totality qf the circumstances in this individual case, It is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage to all of its benefici~es.
Conclusion
The appeal will be dismissed for the abov(! sta.ted reasons, with each considered as an independent and altem(:lte b(lsis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought.. Section 291 of the Act, 8 U.S.C. § l361; Matter o[Otiende, 26 I&N Dec. 127, 128 (.BIA 2013). Here, that burden has not been met.
ORI)ER: The appeal is dismissed.