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:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce 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. 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.P.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
/tv{ ~. -
Ron Rosenberg
Chief, Administrativ e Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petitioner describes itself as an information technology business. It seeks to employ the beneficiary permanently in the United States as a "Web Developer." 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 (DOL).
The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2). 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. The director 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 July 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 .
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any petltwn 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 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 June 14, 2011. The proffered wage as stated on the ETA Form 9089 is $97,094.00 per year. The ETA Form 9089 states that the position requires a 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 United States. p. 3 Master's degree in "Computer Science" and 24 months of experience in the job offered or in the alternate occupation of web designer or a related occupation.
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 in the record, including new evidence properly submitted upon appeal?
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 established in 2008 and to currently employ three 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 August 30, 2011, 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'! Comm 'r 1977); see also 8 C.P.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 of Sonegawa, 12 I&N Dec. 612 (Reg'! 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 has not established that it paid the beneficiary the full proffered wage during any relevant timeframe including the period from the priority date in 2011 or subsequently.
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, users will next examine the net income figure reflected on the petitioner 's federal income tax return, without consideration of depreciation or other expenses. Rivet 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 2 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.P.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). p. 4 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 gross receipts and wage expense is misplaced. Showing that the petitioner ' s gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient.
In K.C.P. Food Co., Inc. v. Sava, 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 USCIS 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). 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 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 at 537 (emphasis added).
The record contains the petitioner ' s tax returns for 2010, 2011 and 2012, which state net income as shown in the table below.
- In 2010, the Form 1120S stated net income 3 of $183.00. 4
- In 2011, the Form 1120S stated net income of $(823).
- In 2012, the Form 1120S stated net income of $(1,196.00).
Therefore, for the years 2010, 2011, and 2012, the petitioner did not have sufficient net income to pay the proffered wage.
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may review the petitioner 's net current assets. Net current assets are the difference between the petitioner's current assets and current liabilities. 5 A corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. If the total of a corporation'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 cunent assets. The petitioner ' s tax returns demonstrate its end-of year net current assets for 2010, 2011, and 2012, as shown in the table below.
- In 2010, the Form 1120S stated net current assets of $6,588.00
- In 2011, the Form 1120S stated net current assets of $6,042.00.
- In 2012, the Form 1120S stated net current assets of $1,200.00.
Therefore, for the years 2010, 2011, and 2012, the petitioner did not have sufficient net current assets to pay the proffered wage.
Therefore, 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 3 Where an S corporation's income is exclusively from a trade or business, USCIS considers net income to be the figure for ordinary income, shown on line 21 of page one of the petitioner's IRS Form 1120S. However, where an S corporation 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, credits, deductions or other adjustments, net income is found on line 18 (2006-2012) of Schedule K. See Instructions for Form 1120S, at http://www.irs.gov/pub/irs-pdf/i1120s.pdf (accessed January 13, 2014) (indicating that Schedule K is a summary schedule of all shareholders' shares of the corporation ' s income, deductions, credits, etc.). Because the petitioner had additional deductions shown on its Schedule K for 2011 and 2012, the petitioner's net income is found on Schedule K of its tax returns for these years.
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NON-PRECEDENT DECISION the priority date through an examination of wages paid to the beneficiary, or its net income or net current assets.
Counsel asserts on appeal that the petitioner's president personally has the ability to pay the beneficiary's proffered wage. The record contains a letter from the petitioner's president, dated November 27, 2013, stating that he is willing to use his personal income toward paying the beneficiary's proffered wage. The record also contains the personal tax returns of the petitioner's president for 2011 and 2012 and asserts that these demonstrate the petitioner's ability to pay the proffered wage. Because a corporation is a separate and distinct legal entity from its owners and shareholders, the assets of its shareholders or of other enterprises or corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing 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 obligation to pay the wage." Therefore, the AAO will not consider the income of the petitioner's president toward the petitioner's ability to pay the proffered wage. The record also includes a letter from stating that the petitioner's six month average bank balance as of September 20, 2011 was $93,167.00. Counsel's reliance on the balances in the petitioner's
In the instant case, the tax returns in the record do not establish that the petitioner has had the ability to pay the beneficiary 's proffered wage from the priority date onward. For the reasons stated above in Matter of Great Wall, the AAO will not consider the assertions of future growth toward establishing the ability to pay the proffered wage.
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as submitted by the petitioner that demonstrates that the petitioner could not pay the proffered wage from the day the ETA Form 9089 was accepted for processing by the DOL. 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 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, 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. 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 USCIS deems relevant to the petitioner's ability to pay the proffered wage.
In the instant case, the Form 1-140 states that the petitioner has been in business since 2008 and that it employs three workers. The petitioner ' s tax returns in the record reflect low amounts of net income and net current assets for 2010, 2011 and 2012. Although the tax return for 2010 relates to p. 8 not demonstrated that its tax returns paint an inaccurate financial picture. 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, the petitioner must also establish that the beneficiary meets the experience requirements of the labor certification. Although not a basis for this decision, the AAO notes that the petitioner has not demonstrated that the beneficiary meets the experience requirements for the proffered position. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9 h Cir. 2003); see also Soltane v.
DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).
Part H of the labor certification states that the offered position has the following m1mmum requirements:
H.4. Education: Master's degree in Computer Science.
H.5. Training: None required.
H.6. Experience in the job offered: 24 months.
H.7. Alternate field of study: "Any other field including coursework in multimedia."
H.8. Is there an alternate combination of education and experience that is acceptable? No. H.9. Is a foreign educational equivalent acceptable? No.
H.10. Experience in an alternate occupation: 24 months of experience as a web designer or related occupation.
H.14. Specific skills or other requirements: "Successful experience in UI design and HCI (Human and Computer Interaction); web design and application development that included projects related to health care."
The record reflects that the beneficiary possesses a Master's degree in Music Technology from awarded on May 16, 1996.
Part K of the labor certification states that the beneficiary has the following employment experience:
- As a Creative Director for in Taipei, Taiwan, from July 1, 1999 until December 31, 2001.
- As a Web Designer /Producer for in Taipei, Taiwan from September 1, 1998 until July 31, 1999.
- As a Web Designer/Web Developer for
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Part H.14. of the labor certification requires that the beneficiary has "successful experience in Ul design and HCI (Human and Computer Interaction); web design and application development that included projects related to health care." The record contains a letter from the CEO of dated December 10, 2007, attesting to the beneficiary 's experience there from June 1, 2000 through November 16, 2001. This letter does not state that the beneficiary gained experience in UI design, HCI or projects related to health care. Further, the labor certification states that the beneficiary was employed with from July 1, 1999 until December 31, 2001, which differs from the dates in this letter. ou t cast on any aspect of the petitioner's evidence may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. !d.Inconsistencies in the record The record does not otherwise demonstrate that the beneficiary meets the requirements stated in Part H.l4. ofthe labor certification.
The record also contains a letter from the Director of the dated December 11, 2007, attesting to the beneficiary's employment there as a Web Designer/ Web Developer /AV Specialist from June 1, 1994 through July 31, 1997. It is unclear why the labor certification states that the beneficiary worked there from September 1, 1995 until July 31, 1997. Further, the beneficiary ' s transcripts issued by indicate that she was maintaining matriculation for Fall 1993, Spring/Fall 1994, and Spring 1996. These discrepancies call into question the dates of the beneficiary's employment experience and whether it was full- or part-time.
The petitioner must resolve these discrepancies with independent, objective evidence in any further filings and demonstrate that the beneficiary has the 24 months of experience in the job offered or as a web designer or related occupation, as well as the skills listed in Part H.14. of the labor certification.
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 Oti ende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not met that burden.
ORDER: The appeal is dismissed.