Degree or an Alien of Ex;ceptional Ability Pursuant to· Section 203(b )(2) of the h11rnigra_tion 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 y9ut case. This is a non-precedent decision. The AAO does not announce new construCtions of law nor establish agen_qy policy through non-precedent deCisions. If you believe the AAO incorrectly applied cutte _iit law or policy to . your case or if you seek to present new facts for consideration, you may fUe a Il1.0tion to reconsider or a rilotio(l to reo'pen, respectively. Any motion must be filed OIJ a Notice of Appeal or Motion (Form I-290.13) · within 33 days of the date Of this decisio(l. Plea~e review the Form I-290B instructie).Qs at http://www.uscis.gov/forms for the IMest information on 'fee, tiling location, Qild other reguirements. · See also 8 C.F.IC § 103.5. Do not tile a motion directiy with the AAO.
Thank you,
Ron Rosenberg
CQief, Administrative Appeals Office l\'ww.uscis.gov
DISCUSSION: The Director, Texas Service Center (direc(or), denied the employment-based imiiligrant visa petition. The subsequent appeal was dismissed by the Administrative.Appeals Office (AAO). The matter is now before the AAO on motions to reopen and reeonsider. The motions will be granted, the previous decision of the AAO will be affirmed, and the petition will remain denied . The petitioner is a software design consulting company. It seeks to ~mploy the beneficiary permanently in tbe Un.ited States as a websphere administrator. As required by statute, the petition is accompanied by an ETA Form 9089 , Application for . Permanent Employment Certification, approved by the United States Department of Labor (POL). The director determined that the petition was not accompanied by a labor certification for the areas of intended employment, in that the petition diq not specify multiple alternateworksites. The director denied the peti.tion accordingly. O:h September 4, 2013, the AAO dismissed the appeal, holding that no bona fide job offer existed as the petitioner's status in the state of New Jersey, the location of proposed employment, was not active; the petition was not accompanied by a valid labor certification with a specific job offer valid for the area of intended employment; and the petitioner failed to demonstrate its ability to pay the proffered wage from the priority date onwards. The petitioner then submitted the instant motion to reopen and reconsider. We will accept the motions to reopen and reconsider the niattet based on the new information submitted and argliments made by cou11sel. Thus, the motions to reop.eil and reCOilSider are granted. The ·procedural history in this case is docull1ented by the record and incorporated into the decision. Further elaboration of the procedural history ~ill be made only as necessary.
The record shows that the motion is properly filed, timely and m_akes a specific allegation of error in law or fact The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence iil the record, including new evidence ptopetly submitted upon appeal. 1
As set forth in the director's January 8, 2013 denial and the AAO's September 4; 2013 decision, the issue i~ this case is whether or not the job offered on t.tie labor Certification was bona fide as the proffered position involved living and working in a different Standard Metropolitan Stat.istical Area (SMSA) than listed on the labor certification application. In addition, the infotrnation in the record indicated that the petitioning business was not active apd in good standing with the State of New Jersey, rendering the appeal moot.
Section 203(b )(2) of the Act provides immigrant Classification to. members of the professions holding · ,advanced degrees or aliens of exceptional ability, whose services are sought by an employer in the United States. See also 8 C.F.R. § 204.5(k)(1).
As a threshold issue, ~he prior AAO decision noted tha~ ~~ New Jersey Business Gateway Services stated that the petitioner's1status was not active in the state? The prior AAO decision considered the petitioner's certificate· of good standing in the State of Coililecticut iil determining that the petitioner failed to delJlonstrate that it is an active entity in the State of New Jersey, which is the location of the proposed employment and held that tbe petition and· appeal are moot. the prior AAO decision dismissed the peti~ion on this basis.
With. tbe motion; the petitioner submits a Certificate of Authority from the State of New Jersey, dated October 4, 2013, stating that tbe petitioner has the right to conduct business in that state. As a result, that portion of the prior AAO decision denying the petition for mootness is rescinded. Concerni.I)g the area of employment, the regulation at 20 C.F.R. § 656.30(c)(2) provides: A labor certification involving a specific job offer is valid only for the particular job opportunity, the alien for whom certification was granted, and for the are~ of intended employment stated on the Application for Alien Employment Certification fo~.
The labor certification states that the petitioner's loc~tion is in New Jersey and that the "primary worksite (where work is to be performed)" is the petitioner's loc~tion in New Jersey. The Form 1-140 indicates that the beneficiary lives in Virginia, a location calcul~ted by the director to be 215 miles away from the petitioner's location.
The record reflects that the director sent a Notice of Intent to Deny (NOID) on November 27,2012 3 noting that the labor certification indicated an address for the place of employro.enf in New Jersey while InternaJ Reven11e Service (IRS) Forms W-2 for 2008, 2009, and 2010 issued by the petitioner indicated that the beneficiary lived in Maryland and pay stubs indicated that the beneficiary moved to Virginia in December 2010. As a result of the beneficiary's residence being so far from the petitioner's location, ·the director requested evidence "of tb.e actual tasks ·to be performed by the beneficiary in NJ as well as evidence that [the petitioner had] tbe necessary · facilitit;s to employ the beneficiary on a full-time basis in NJ.'' · In response, the petitioner submitted a letter dated December 21, 2012 from its President, stating that the petitioner provides cons\llting services to third parties either from the ,2 The AAO ·sent a . Notice of Intent to Deny I Request for Evidence (NOID!RFE) advising the petitioner that if its organization was no longer in business, then no bona fide job offer exists, and the petition and appeal would therefore be moot. Even if the appeal CO\lld be otherwise sustained, the approval of the petition would be subject to automatic revocation due to the tellllination of the petitioner's business. See 8 C.F.R. § 205.1(a)(iii)(D). Moreover, the NOIDIRFE advised that any concealment of the true status of the organiZation would seriously compromise the credibility of the remaining evidence in the reeord and that independent, objective evidence would need .to be S\lbmitted to resolve any inconsistencies in the record.Inconsistencies in the record See Matter of Ho, 19 I&N Dec. 582, 586 (BIA 1988). 3 The record also indicates that the director issued an RFE on July 20, 2011 and an earlier NOID on A~g\lSt 20, 2012.
Pagt! 4 headquarters location or at the third parties' offices. Mr. further states that the petitioner did not intend the temi ''place of employment" on the labor certification to mean ''worksite.'; The letter :furtb'er s~id that the beneficiary has worked on various contracts in various location~, i11cluding Ohio, wher.e the be11eficiary wa~ working at the time the letter was written. Mr. explains that the official place of the beneficiary's employment remains in New Jersey regardiess of the location where the beneficiary is doing the work, Th_e petitioner submitted pictures of its location i.n NJ and the contract on which the benefiCiary was wor~ing for tb!! St~te of Ohl~ .
The director's decision acknowledged the petitioner's assertion that work at the corporate headquarters would be available to an employee who was not otherwis.e e~,ssigQ~d · to a contract to work at a separate location. the -director, however, cited the petitioner's faihJte to provide evidence to show, that it wo.uld provide work for the beneficiary at its corporate headquarters on an ongoing basis. The director noted that the petitioner did not i11te11d for t.he worksite to be the same aS the place of employment , and additionally found that the labor certification b_as a specific entry to indic.ate the "prit:nwY worksite" for the proffered position where the petitioner listed only the New Jersey offi~e. The director ·· stated that the petitioner did not 'submit evidence that the proffered position actually involved wo.rk at the corporate neadqua.rters. · The A.AO's NOIDIRFE cited the director's concerns and requested evidence demonstrating that the petitioner apprised pote11t.ial U.S. workers that the proffered position involved work i_n · rnultiple locations throughout 'the United States through its recruitment materials. In response, counsel reiterated its statement that the petitioner guaranteed work at its corpqrate headquarte'rs and stated that t.h!!· petitioner was unable to advertise for other work locations bec~:use the work would be done on a non~perrnl:lnent contract basis in unknowable locales. - · The previous AAO decision considered specifically included recruitment materials including ~dvertisements placed in the August 15 and Auglist 22, 2010 Star-Ledger C(assified se.ctions, the petitioner's internet advertisement, in1house-posting, coiifitrnation of the job order . from the New Jersey Department of Labor, a_nd a prevailing wage determination from DOL The advertiseme.ms placed in the Star Ledger, with the New Jersey Department of Labor, and in-house at the petitioner's office do not contain any indication that travel would be necessary or that the wot:kSite would be. i11 a loc~tion other than the corporate headquarters. A July zz, 2013 letter from the petitiOner's president accompanying the internet advertiSement states that no hardcopy of the internet advertisement Was retai_ned, but that the language in the advertisement had not cha11ged s_inc.e 2010. that int~rnet advertisement states that the position requires "travel/relocat[ion] to various tJ.11Mticipated locations throughout the U.~ ... for long and short term assignments." This posting would be sqfficient to apprise U.S. workers of the actual requirements of the position; .however; the aceoinpanying letter does .not st_ate that the advertisement was the actUal advertisemellt run for the position, but that the advertisement had changed very little over the intervening three years.
The prior AAQ decision found that the application for prevailing wage determination (PWD) Was inconsistent with later statements by the petitioner that it' did not state other worksit~s' would be required because it did not
PageS question in Part a, Block 7 that asks whether travel would be required iQ order to perform the job duties. The petitioner checked "no" to this question. Similarly in Part c, Block 7, th~ PWD asks whether work would be performed in multiple worksites within an area of intended employment or a location other than the address listed a,s the "place of employment.'' Again, the petitioner checked the "no'' box. The prevailing wage determination; therefore, was written for a position requiring no travel or alternate assignments. The position currently being offered to the ben~fi<::il!ry, however, requires travel a,nd assignment to alternate worksites. The prior AAO decision held that the petitioner's representations on the PWD affected the DOL;s analysis in detemiining the true prevailing wage for the position.
01). motion, counsel states that travel is not a job requirement of the proffered position, In support of this assertion, counsel cites the letter previously submitted from Mr. stating that t.he beneficiary "has been assigned to work in different locations and is currently assigned to work on contract for the State of Ohio ... [oil] a temporary assignment.'; The letter further states that the beneficiary ''has worked for the [petitioner] oil various contractual assignments in a variety of locations," but that the petitioner has always paid the beneficiary's salary and remains an employee of the petitioner, guaranteeing employment at the petitioner's headquarters in New Jersey. The new letter submitted on motion, dated October 1, 2013, on the petitioner's letterhead with no author listed, again states that "when [the beneficiary] will not have a contract, he will be working . . . at [the petitioner's office in] NJ." Both letters describe a position in which a worker is assigned to contracts as they become avc:tilable, regardless of location, with interim work at headquarters. The terms of the labor certification do not support the position as described in the letters from the petitioner.
The previous AAO decision considered Matter of Paradigm Infotech, 200T,JNA-00003 (BALCA 2007), for the premise that the proper
BALCA decisions supp<;Jrt the conclusion that the job offer as expressed to potential U.S. applicants did not state the relevant conditions of employment.
On motion, cmmsel states that the requirement to disclose travel is impossible for the petitioner because of the unknown terms of any such travel. Counsel asserts that the petitioner was· unable to answer "yes" to the PWD Part E, section a, question 7 becal.l,se doing so would require the petitioner to fill out block 7 A titled "explain the travel requirements." The petitioner has submitted no evideqce to demonstrate that it could not have· stated that some contract Work would be required in unknown locations for undetermined durations in that box. Similarly, block 7 in Part E, section c requests infotrhation ''with as much specificity as possible" regarding worksite locations outside of . work at headquarters. Instead of indicating that the work was contract based, the petitioner indicated that no work outside of headquarters was required for the position. Counsel states tha.t the DOL would not ha:Ve accepted answers to these questions without specific locales, however, the assertions of counsel do not constitute evidence.Claims not backed by documents Matter ofObaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter of Ramirez-Sanchez; 17 I&N Dec. 503, 506 (BIA 1980). The DOL's Frequently Asked Question section., indicates that ''The employer must provide enough geographic detail about each area of intended employment . to cover all known worksite locations by indicating each county (or independent city/town/township/borougb/parish, as appropriate) and the corresponding state where the employee will work." At the time the PWD was sl.l,bm.itted by the petitioner in 2010, the beneficiary was living in Maryland, so the location of that contract was known a11d could have been included 011 the form even if other future contracts were unknown at that point. In addition, the petitioner could have noted on Part H.ll of the labor certification, "Job duties," ot Part H.14, "Specific skills or other requirements," that travel would be required for the position. The petitioner took no such action and evidence in the
.Page 7 net current assets of $105,101. The previous AAO decision.thus concluded that the petitioner did not establish its ability to pay the proffered wage to all the sponsored workers. See Matter of Great Wall, 16 I&N Dec. at 142. See also 8 C.F.R. § 204.5(g)(2).
On motion, counsel states that the petitioner's historic growth of business should be considered under Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comlll'r 1967), in determining the petitioner's ability to pay the proffered wage. Based oil a review of the tax returns submitted previously and arguments made by counsel concerning the petitioner's growth in gross incdme and overall salary apd wage payments over the past five years submitted on motion, the petitioner has established its ability to pay the proffered wage under the tenns of Sonegawa an.d that part of the previous decisions will be rescinded. · . \
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. l!ere, that burden has not been met. ORDER: The motions to reopen and reconsider are granted and those portions of the decision of the MO dated September 4, 2013 noted above, are rescinded. The petition remains denied.