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:
Enclos ed please fi nd the decision of the Administrativ e Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new construction s of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current Jaw or policy to your case or if you seek to present new facts for consideration , you may file a motion to reconsi der or a motion to reopen, respectively. Any motion must be filed on a Notice of Appe al or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you, fl?~f!lil~
Ron Rosenb erg
Chief , Administrativ e 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 restaurant group. It seeks to employ the beneficiary permanently in the United States as an architectural designer. As required by statute, ETA · Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL), accompanied the petition. The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition and denied the petition accordingly.
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary. As set forth in the director's August 12, 2013 denial, the issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence. On appeal, we have identified an additional issue, in the alternative, concerning whether the petitioner demonstrated that the beneficiary had the experience required for the position.
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.F.R. § 204.5(k)(1).
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 accompanied by evidence that 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 Form 9089, Application for Permanent Employment Certification, was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5( d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its ETA Form 9089 as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm'r 1977).
Here, the ETA Form 9089 was accepted on December 2, 2011. The proffered wage as stated on the ETA Form 9089 is $78,582 per year. The ETA Form 9089 states that the position requires a p. 3 master's degree in architecture, urban planning or a related field or a bachelor's degree in the aforementioned field plus five years of experience as an architectural designer, designer, urban planner, intern architect , or related position .
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal. 1
The record indicate s the petitioner is structured as a limited partnership (LP) and filed its tax returns on IRS Form 1065, U.S. Return of Partnership Income. 2 On the petition, the petitioner claimed to have been established in 1979 and to currently employ 50 workers. According to the tax returns in the record, the petitioner ' s fiscal year is based on a calendar year. On the ETA Form 9089, signed by the beneficiary on September 26, 2012, the beneficiary did not claim to have worked for the petitioner.
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition later based on the ETA Form 9089, the petitioner must establish that the job offer was realistic as of the priority date and that the offer remained realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm 'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (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 at 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 the proffered wage. In the instant case, the petitioner submitted Internal Revenue Service (IRS) Forms W-2 for 2011 and 2012 and paystubs showing wages paid to the beneficiary through April 12, 2013 by
The submission of additional evidence on appeal is allowed by the instructions to the Form I-29GB, which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appe al. See Matt er of Soriano , 19 I&N Dec. 764 (BIA 1988).
As noted by the director, the IRS Forms W-2 and the paystubs were issued by a company other than the petitioner, namely , _ In response to the director's Request for Evidence (RFE), the petitioner stated that "is an affiliated entity that was established by the petitioner to manage its restaurant operations in Miami, Florida." The letter further noted that the IRS Forms W-2 bear both the petitioner's and the names. The petitioner also submitted a statement dated June 14, 2013 from identified as the petitioner ' s accountant, naming the petitioner "and its affiliated entities" and the respective number of employees of each company. The petitioner submitted an additional statement from Mr. dated October 19, 2012 , stating that the petitioner "provides management services for ... companies owned by Mr. and his wife" and that these additional entities include Mr. noted that a "corporate overhead reimbursement" amount appears on the petitioner's 2010 tax return evidencing a relationship between the companies. Mr. makes a similar statement in a letter dated April 29, 2013. This evidence does not sufficiently establish that or any of the other named companies, has the financial obligation and responsibility to pay the beneficiary the proffered wage for work performed as an architectural designer for Mr. , The business transaction setting up any arrangement between the petitioner and to pay the beneficiary's wage does not appear in the record. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.Claims not backed by documents Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg' I Comm'r 1972)). Mr. appears to be an emplo ee of the petitioner's; 3 no agreement between the corporations was submitted to demonstrate that has any relationship to the petitioner or any obligation to meet the petitioner's financial obligation to pay the proffered wage. As a result, the wages and salary paid to the beneficiary by cannot be considered in determining the petitioner's ability to pay the proffered wage. 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 the net income figure reflected on the petitioner 's federal income tax return, without consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano , 558 F.3d 111 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for determining a petitioner 's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava , 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. 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). Reliance on the petitioner's wage expense is misplaced. Showing that the petitioner paid wages in excess of the proffered wage is insufficient.
With respect to depreciation, the court in River Street Donuts noted:
The AAO recognized that a depreciation deduction is a systematic allocation of the cost of a tangible long-term asset and does not represent a specific cash expenditure during the year claimed. Furthermore, the AAO indicated that the allocation of the depreciation of a long-term asset could be spread out over the years or concentrated into a few depending on the petitioner's choice of accounting and depreciation methods. Nonetheless, the AAO explained that depreciation represents an actual cost of doing business, which could represent either the diminution in value of buildings and equipment or the accumulation of funds necessary to replace perishable equipment and buildings. Accordingly, the AAO stressed that even though amounts deducted for depreciation do not represent current use of cash, neither does it represent amounts available to pay wages.
We find that the AAO has a rational explanation for its policy of not adding depreciation back to net income. Namely, that the amount spent on a long term tangible asset is a "real" expense.
River Street Donuts, 558 F.3d at 118. "[USCIS] and judicial precedent support the use of tax returns and the net income figures in determining petitioner ' s ability to pay. Plaintiffs' argument that these figures should be revised by the court by adding back depreciation is without support." Chi-Feng Chang, 719 F. Supp. at 537 (emphasis added).
In K.C.P. Food, 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 argument that the Service should have considered income before expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses). The record before the director closed on June 17, 2013 with the receipt by the director of the petitioner 's submissions in response to the director's request for evidence. As of that date , the petitioner's 2011 federal income tax return was the most recent return available as the petitioner was granted an extension in which to file its 2012 tax return.4 The petitioner 's 2011 IRS Form 1065 stated net income of -$1,064,874. 5 A negative net income is insufficient to establish that the petitioner has the ability to pay the proffered wage.
The petitioner submitted a copy of 2011 Form 1065, however, as staetd above, no fiduciary relationship or other financial obligation has been established between the two companies. As a result, this return may not be considered in determining the petitioner's ability to pay the proffered wage. The petitioner also submitted a copy of its 2010 Form 1065. As this return pre-dates the priority date , it will be considered only generally.
For a limited partnership, where the company's income is exclusively from a trade or business, p. 6 If the net income the petitioner demonstrates it had available during that period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, USCIS will review the petitioner's net current assets. Net current assets are the difference between the petitioner 's current assets and current liabilities. 6 An LP's year-end current assets are shown on Schedule L, lines 1(d) through 6(d) and include cash-on-hand, inventories, and receivables expected to be converted to cash within one year. Its year-end current liabilities are shown on lines 15(d) through 17(d). If the total ofan LP's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage using those net current assets. The petitioner's 2011 IRS Form 1065 stated net current assets of -$34,069. Negative net current assets are insufficient to establish that the petitioner has the ability to pay the proffered wage.
Thus, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date through an examination of wages paid to the -beneficiary, or its net income or net current assets.
On appeal, counsel asserts that the petitioner's overall circumstances, including its "operat[ion of] multiple world-renowned restaurants through affiliated entities " should be considered. users 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 Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross 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 time when the petitioner was unable to do regular business. The Regional Commissioner determined that the USCIS considers net income to be the figure shown on Line 22 of page one of the petitioner 's IRS Form 1065 , U.S. Return of Partnership Income. However, where the company has income, credits, deductions or other adjustments from sources other than a trade or business, they are reported on Schedule K. If the Schedule K has relevant entries for additional income or additional credits, deductions or other adjustments, net income is found on page 5 of IRS Form 1065 at line 1 of the Analysis of Net Income (Loss) of Schedule K. See Instructions for Form 1065, at http://www.irs.gov/pub/irs-pdf/i1065.pdf (accessed December 13, 2013) (indicating that Schedule K is a summary schedule of all partners' shares of the partnership's income , deductions , credits, etc.). In the instant case, the petitioner's Schedule K has relevant entries for additional adjustments and, therefore, its net income is found on line 1 of the Analysis of Net Income (Loss) of Schedule K of its tax return.
petitioner's prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines. Her clients included Miss Universe , movie actresses, and society matrons. The petitioner ' s clients had been included in the lists of the best-dressed California women. The petitioner lectured on fashion design at design and fashion shows throughout the United States and 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 , users 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 . users may consider such factors as the number of years 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 beneficiary is replacing a former employee or an outsourced service, or any other evidence that users deems relevant to the petitioner ' s ability to pay the proffered wage.
In the instant case, the two tax returns submitted for the petitioner for 2010 and 2011 both state negative net income and net current assets. On appeal, counsel states that the 2011 Form 1065 reflects a one-time lawsuit settlement , which resulted in the negative net current assets for that particular year, however , such an explanation would not demonstrate why the petitioner's net current assets were negativ e in 2010 as well. In addition, no evidence was submitt ed to establish that such a legal settlement amount was due. The assertions of counsel do not constitute evidence . Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Counsel states on appeal that the petitioner operates "world reknown restaurants" and that such celebrity and success should be considered, however, no evidence was submitted to establish the ownership of the restaurants claimed . The petitioner submitted a copy of its webpages, however, no outside recognition or other indicia of circumstances akin to that presented in Sonegawa was presented. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Cornrn'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). In addition, counsel states that the restaurants are operated by "affiliated entities," so it is unclear that any such fame or celebrity could be attributed to the petitioner. Thus, assessing the totality of 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 .
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.
Beyond the decision of the director, if the AAO were to accept that employs and pays the beneficiary on behalf of the petitioner, then the beneficiary would not have the required qualifications for the offered position. The petitioner must establish that the beneficiary possessed all the education, training , and experience specified on the labor certification as of the priority date. 8 C.F.R. § 103.2(b)(l) , (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm 'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm 'r 1971). In evaluating the beneficiary's qualifications , users must look to the job offer portion of the labor p. 8 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 v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); 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 the offered position requires a Master's degree or a Bachelor ' s degree plus five years of experience. Here, the beneficiary possesses the foreign equivalent of a U.S. bachelor's degree. On the labor certification, the beneficiary claims to qualify for the offered position based on experience as an architectural designer with from December 3, 2009 to the date of signing, December 2, 2011, as an intern architect from March 1, 2009 to November 4, 2009 with _ as an urban planner with from October 1, 2007 to February 28, 2009, and as an urban planner/GIS technician with from July 15, 2005 to August 31, 2007.
The record contains letters from the above listed employers to verify the beneficiary's claimed employment in keeping with 8 C.F.R. § 204.5(g)(l), which establishes in excess of five years of work experience. The petitioner, however, checked the "No" box on the ETA Form 9089, Section J, Question 21 indicating that none of the beneficiary's qualifying work experience was attained through work done for the petitioner. As stated above, the petitioner has stated that should be viewed as interchangeable for purposes of determining its ability to pay the proffered wage, as the companies are affiliated. Should the petitioner submit evidence to establish that is the same employer for purposes of establishing its ability to pay, the beneficiary's work experience with that entity could not be counted towards her relevant experience. Without considering any work done for the petitioner has submitted evidence of 52 months of experience of the beneficiary. This number is less than the five years, or 60 months, of experience required by the terms of the labor certification. As a result, should the petitioner submit evidence establishing that _ is effectively the same employer as the petitioner, the petition would be denied on this alternative basis. In addition, if were to be the actual employer, an issue would arise whether the offer is bona fide as the petitioner would need to establish that the single restaurant operated by would need a full-time architectural designer.
The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. 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. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not met that burden.
ORDER: The appeal is dismissed.