The Petitioner, a provider of technology staffing and consulting services, seeks to employ the Beneficiary as a Java developer. It requests classification of the .Beneficiary as a member of the professions holding an advanced degree. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This category allows a U.S. business to sponsor a professional with an advanced degree or its equivalent for lawful permanent resident status.
The Director, Texas Service Center, denied the petition. The Director concluded that the record did not establish the Petitioner's ability to pay the proffered wage.
The matter is now before us on appeal. The Petitioner asserts that the Director disregarded evidence and submits additional materials in support of its ability to pay the proffered wage.
Upon de novo review, we will dismiss the appeal.
Law and Analysis
A. USCIS' Role in the Employment-Based Immigration Process
Employment-based immigration is generally a three-step process. First, a U.S. employer must obtain an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, the employer must file a Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Finally, if USCIS approves the petition, a foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
By approving the labor certification in this case, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, and available for the otiered position of Java developer. See section 212(a)(5)(A)(i)(I) ofthe Act. The DOL also certified that the employment of a foreign national in the position will not adversely a±Iect the wages and working conditions ofdomestic workers similarly employed. See section 212(a)(5)(A)(i)(ll).
In visa petition proceedings, USCIS must determine whether the Beneficiary meets the requirements of the offered position certified by the DOL. USCIS must also determine whether the Petitioner and the Beneficiary qualify for the requested immigrant classification. See. e.g.. Tongatapu Woodcraft Haw., Ltd. v Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own determination of the alien's entitlement to [the requested] preference status").
B. The Petitioner's Ability to Pay the Proffered Wage
The first issue to be considered is whether the Petitioner has demonstrated its ability to pay the Beneficiary the proffered wage. A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Initial evidence of ability to pay must include copies of annual reports, federal income tax returns, or audited financial statements. ld.
In determining ability to pay, we examine whether a petitioner paid a beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage each year, we consider whether it generated sufficient, annual amounts of net income or net current assets to pay any differences between the proflered wage and the wages paid. If a petitioner's net income or net current assets are insufficient, we may also consider the overall magnitude of its In this case, the labor certification states the proffered wage of the offered position of Java developer as $121,202 per year. The petition's priority date is November 29, 2013. This is the date that the DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date).
The record lacks required, initial evidence of the Petitioner's ability to pay the proffered wage from the petition's priority date onward. Contrary to 8 C.F.R. § 204.5(g)(2), the Petitioner did not submit copies of annual reports, federal income tax returns, or audited financial statements for 2013 or any years thereafter. Therefore, the Director sent a request for evidence (RFE) on August 1, 2014, asking the Petitioner to submit an income tax return, annual report, or audited financial statements for 2013. In response, the Petitioner submitted copies of financial statements for 2012 and 2013. But the financial statements ref1ect a "review" of management's financial representations by accountants, rather than an "audit" as the regulations require. In the financial statements, accountants state that "[a] review is substantially less in scope than an audit, the objective of which is the expression of an opinion regarding the financial statements as a whole." Because the financial Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See. e.g.. River St. Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Estrada-Hernandez v. Holder, I08 F. Supp. 3d 936, 942-43 (S.D. Cal. 2015); Rivzi v. Dep't ofHomeland Sec., 37 F. Supp. 3d 870,883-84 (S.D. Tex. 2014), af('d, 627 Fed. App'x. 292 (5th Cir. 2015); Just Bagels Mfg., Inc. v. Mayorkas, 900 F. Supp. 2d 363, 373-76 (S.D.N.Y. 20 12). business activities. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). p. 3 statements submitted by the Petitioner were unaudited, they do not meet the requirements of 8 C.F.R. § 204.5(g)(2). Absent regulatory required, initial evidence, the record does not establish the Petitioner's ability to pay the proffered wage.
I
The Petitioner also submitted letters from its president/chief financial officer (CFO) in support of its ability to pay the proffered wage. If a petitioner employs 100 or more workers, a director "may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage." 8 C.F.R. § 204.5(g)(2). However, in this case, the Director did not abuse his discretion in rejecting the letters from the Petitioner's president/CFO as proof of its ability to pay. Although the Petitioner employs more than 100 workers, as the Director noted, the record contains conflicting financial representations by the Petitioner. Specifically, its financial statements indicate annual net income amounts of $605,165 in 2013 and $320,693 in 2012. On the Form I-140, however, the Petitioner stated net income of -$938,421. Given this large, unexplained discrepancy in the Petitioner's amount of net income, the Director need not credit the unsupported assertions of the company's president/CFO regarding its ability to pay the proffered wage.Claims not backed by documents
Also, as the Director noted, USCIS records indicate the Petitioner's filing of multiple I-140 petitions for other beneficiaries. A petitioner must demonstrate its ability to pay the proflered wage of each petition it files from the petition's priority date onward. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore demonstrate its ability to pay the combined proffered wages of this Beneficiary and the other sponsored beneficiaries from this petition's priority date onward until such time as the other beneficiaries' obtain lawful permanen~ residence or their petitions are withdrawn, revoked, or denied without a pending appeal. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming a petition's denial where a petitioner did not demonstrate its ability to pay the proffered wages o f multiple, pending petitions). Although informed o f the absence o f needed information regarding the multiple petitions in the Director's denial, on appeal, the Petitioner does not submit information concerning its ability to pay its wage obligation to all sponsored beneficiaries. Where a petitioner has multiple, pending petitions, a director need not credit a letter from a financial officer as establishing the organization's ability to pay.
On appeal, the Petitioner also asserts that according to USCIS policy, payment of a proffered wage to a beneficiary may demonstrate a petitioner's ability to pay, the Petitioner states that the record indicates that its payments to the Beneficiary in 2013 and 2014 exceeded the proffered wage. Citing ,an internal USCIS memorandum, the Petitioner states that the record demonstrates its ability to pay the proffered wage. See Memorandum from William R. Yates, Associate Director for Operations, USCIS, HQOPRD 90/16.45, Determination ofAbility to Pay under 8 CFR 204.5(g)(2) (May 4, 2004).
Payroll records and an IRS Form W-2, Wage and Tax Statement, indicate the Petitioner's payment of $69,900 to the Beneficiary during the last half of 2013, including payment of $12,600 after the petition's priority date of November 29, 2013. During the first 9 months of 2014, payroll records also indicate the Petitioner's payment to the Beneficiary of $116,395, nearly the entire annual p. 4 proffered wage amount of $121,200. However, the evidence of the Petitioner's payment of the proffered wage to the Beneficiary is insufficient, because the Petitioner did not also submit regulatory required, initial evidence of its ability to pay. See 8 C.F.R. § 204.5(g)(2) (stating that evidence of ability to pay "shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements").
The USCIS memo cited by the Petitioner confirms that, to demonstrate an ability to pay, a petitioner must first submit evidence required by 8 C.F.R. § 204.5(g)(2). The memo states: "The petitioner must submit a copy of at least one of these required documents [referred to in 8 C.F.R. § 204.5(g)(2)]." Yates Memo, supra, at 2 (emphasis in original). USCIS may only determine a petitioner's ability to pay a proffered wage "[i]f the record is complete with respect to all of the required initial evidence." !d. Because the Petitioner did not submit the required, initial evidence, documentation of its payment of the proffered wage to the Beneficiary does not establish its ability to pay.
The Petitioner also submitted evidence of its possession at the end of 2013 of about $5.8 million in accounts receivable, average weekly deposits of $390,000 into its checking account from July 2013 to August 2014, and ta $3.5 million line of credit. A line of credit, however, does not represent a contractual or legal obligation by a bank, and the record does not indicate whether the Petitioner's incurrence of debt would improve its financial condition. The record also does not establish the Petitioner's ability to collect a sufficient portion of its accounts receivable in time to pay the proffered wage in 2013 or 2014. Moreover, absent the initial documentation required by 8 C.F.R. § 204.5(g)(2), the accounts receivable, checking account deposits, and credit line do not establish the Petitioner's ability to pay the proffered wage. For the same reason, we cannot consider the Petitioner's ability to pay pursuant to the factors stated in Sonegawa.
Because the record lacks required, initial evidence, the Petitioner has not demonstrated its continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the Director's decision and dismiss the appeal.
B. The Beneficiary's Possession of the Required Experience
Although unaddressed by the Director, we find that the record also does not appear to establish the Beneficiary's possession of the experience required for the offered position. Because the Petitioner did not receive notice of this remaining issue and an opportunity to respond, it will not constitute a ground for dismissal of this appeal. See 8 C.F.R. § 103.2(16)(i) (requiring USCIS, before issuing an adverse decision, to advise a· petitioner of derogatory information of which it is unaware and to afford it an opportunity to respond). In any future filings in this matter, however, the Petitioner must submit additional evidence to overcome the following deficiency.
A petitioner must establish a beneficiary's possession of all the education, training, and experience specified on a labor certification by a petition's priority date. 8 C.F.R. § 103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'] Comm'r 1977); Matter of p. 5 Katigbak. 14 I&N Dec. 45,49 (Reg'l Comm'r 1971).
In evaluating a beneficiary's qualifications, we must examine the job otter portion of a labor certification to determine the minimum requirements of an offered position. We may neither ignore a term of the labor certification, nor impose additional requirements. See K.R.K. Irvine. Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983); Stewart Infra-Red Commissary ofMass.. Inc. v. Coomey, 661 F.2d 1, 3 (1st Cir. 1981).
As previously indicated, this petition's priority date is November 29, 2013. The labor certification states the minimum requirements ofthe offered position ofJava developer as a U.S. master's degree or a foreign equivalent degree in computer science, plus 36 months of experience in the job offered or in "[a]ny occupation providing the req[uired] skills and abilities." The labor certification also states that an additional year of relat'ed experience may satisfy the required field of study in computer science. In addition, the labor certification states that the Petitioner will accept an alternate combination of education and experience in the form of a bachelor's degree plus 5 years of expenence.
The record 'establishes the Beneficiary's possession of the foreign equivalent of a U.S. master's degree in the required field. At issue is his possession of at least 36 months of qualifying experience in the job offered or in "[a]ny occupation providing the req[uired] skilis and abilities." The Beneficiary does not claim to have experience in the job offered, so we must evaluate whether his past employment ~xperience was in "[a]ny occupation providing the req[uired] skills and abilities." In order to perform this analysis we need to know what the required skills and abilities are, but this is not clear from the record. According to the description of the proffered position provided in part H.ll of the labor certification, the offered position will include "[c]qmplet[ing] programming using languages and software products such as Java, J2EE using APis, JavaScript, Web Services and PL/SQL packages." If we interpret these technical skills as the "req[uired] skills and abilities" needed to qualify an alternate occupation as qualifying experience, then the record does not establish that the Beneficiary has the required 36 months of experience in "[a]ny occupation providing the req[uired] skills and abilities."
The Beneficiary attested on the labor certification to his possession of more than 10 years of related, full-time experience before beginning work for the Petitioner on July 1, 201 3. The Beneficiary stated the following experience:
- About 11 months as an ASD Professional MKTS for from April25, 2011, to March 13, 2013;
- About 4 months as a consultant for 2010, to April22, 2011;
- About 55 months as a software engineer for 2006, to December 10, 2010; and
- About 60 months as a software engineer for April 21, 2006. in the United States in the United States from December 13, in the United States from April 24, in India from April 16, 2001, to
A petitioner must support a beneficiary's claimed qualifying experience with letters from employers. 8 C.F.R. § 204.5(g)(l ). Letters must provide the names, addresses, and titles of employers, and descriptionsofabeneficiary'sexperiences. !d.
In this case, the Petitioner submitted letters regarding the Beneficiary's experience with and' Regarding the Beneficiary's employment with the Petitioner submitted a letter from a vice president on the stationery of The letter states the company's employment of the Beneficiary as a software engineer from April 16, 2001, to April21, 2006, and describes his duties. states a variety of technologies with which the Beneficiary gained "expertise and experience." The technologies stated in the letter, however, do not include Java, J2EE using APis, JavaScript, Web Services, or PLISQL packages as indicated in the job duties of the offered position. The record therefore does not establish the Beneficiary's possession of experience in an "occupation providing the req[uired] skills and abilities" of the jo~ offered.
The Beneficiary's application for adjustment of status also contains a letter from a director on stationery. The letter states the company's employment of the Beneficiary as vice president, applications programmer, since April 2011 and describes his duties in that position. The letter, however, does not establish the Beneficiary's possession of the required 36 3 months of qualifying experience.
In addition, the like the letter, the letter does not state the Beneficiary's experience with Java, J2EE using APis, JavaScript, Web Services, or PLISQL packages required to be considered qualifying experience in the job duties of the offered position. The record therefore does not establish the Beneficiary's possession of experience in an "occupation providing the req[uired] skills and abilities" of the job offered.
As noted above, if the technical skills listed in H.11 of the labor certification are the "req[uired] skills and abilities" for analyzing the acceptability of experience in an alternate occupation, the record does not establish that the Beneficiary has the required experience. If the Petitioner claims that the required skills and abilities are not those technical skills listed in H.ll of the labor The company's name on the letter does not match the name of the Beneficiary's former employer during this period on the labor certification. The Beneficiary, however, submitted documentation with his application for adjustment of status indicating that acquired in 2007. The former employer's name on the labor certification thus appears to refer to the employer's post-acquisition name. The record therefore indicates that and are the same company.
Also, the letter states the Beneficiary's employment in a different position than stated on the labor certification. A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner must therefore explain the discrepancy in the Beneficiary's position title by independent, objective evidence pointing to where the truth lies. See Matter ofHo, 19 l&N Dec. 482, 591 (BlA 1988) (requiring a petitioner to resolve inconsistencies of record).
First, the letter documents only about 4 months of employment. letter details the Ben,eficiary's job duties with the company, but The letter from
Matter ()[N-T-. Inc. certification, the Petitioner must clarify and document what the required skills and abilities are. Moreover, if the Petitioner asserts a different set of required skills and abilities than those listed in part H.11 of the labor certification, the Petitioner should provide recruitment documentation demonstrating how this requirement was communicated to prospective U.S. workers and indicating whether any U.S. workers were disqualified on the basis of this requirement
Conclusion
The record does not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the Director's decision and dismiss the appeal.
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner did not meet that burden.
ORDER: The appeal is dismissed.
Cite as Matter ofN-T-, Inc., ID# 100350 (AAO Feb. 9, 2017)