Immigrant Petition for Alien Worker-as a Member of the Professions Holding an Advanced 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 in your case. All of the documents. related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office .. If you believe the AAO inappropriately applied the law in reaching. its decision, or you have additional information that you wish to have Considered, you niay file a motion to reconsider or a motion to reopen in accordance with. the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The ·specific requirements for filing ·such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any' motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.
Thank you,
.ltm Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The prefe.rence visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office · (AAO) on appeaL The appeal will be dismissed.
The petitioner is an electronic ticketing and marketing inforrpation systems business. · It seeks to employ the beneficiary permanently in the United States as a senior softwareengineer. 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 according! y. · ·
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 February 10, 2012 d~nial, the issue in this case is wheth~r th~ petitioner . has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence.
In pertinent part, section 203(b)(2) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2), provides i.qunigrant classification to members of the professions holding advanced degrees or their equivalent and whose serv:ices are sought by an employer in the United States. An advanced degree is a United States academic or profess.ional. degree or a foreign equivalent degree above .the baccalaureate level. 8 C.F.R. § 204.5(k)(2) .. The .regulation further states: "A United States baccalaureate degree . cir a· foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is cust<;>marily. required by the ·specialty, the alien must have a United States doctorate or a foreign equivalent degree." . /d.
Section 203(b )(2) of the Act also includes . alien~ "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or e~ucational interests, or welfare of the United States." The regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered.·"
The regulation at 8 C.J<:.R. § 204.5(g)(2}'states in pertinen~ part:
Ability of prospective employer to pay wage. Any petition filed by or for an · employment-based immigra~t which requires an offer of employment must be accompanied by evidence that the pro~pective United States employer has the ability tci pay the proffered wage. ·The petitioner must demonstrate this ability at the time the · priority date is established and conti~uing · until the . beneficiary obtains lawful p. 3 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.ER. § 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, 2009. The proffered wage as stated on the ETA Form 9089 is $105,394.00 per year. The ETA Form 9089 states that the position requires a bachelor's qegree in computer science, related field or equivalent and 60 months of experience in the job offered or a related occupation. A foreigit educational equivalent is also acCeptable. · · 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 evidence in the record of proceeding shows that the petitioner is a limited liability company (LLC).2 On the petition, .the petitioner claims that it was established in 2006 and that it currently employs 27 workers. On the ETA Form 9089, signed by the benefic~ary, the beneficiary claims to be employed by the petitioner since October 1, 2008.
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. 1977); see also 8 C.F.R. § 204.5(g)(2): In evaluating whether a job offer is realistic, United I The submission of additional evidence on appeal is. allowed by the instructions to the Form 1- · 290B,whichare ·incorporated into the regulations at 8 C.F.R. § 103.2(a)(1). . .
. 2 An LLC is an entity formed under state .law by filing articles of organization. An LLC may be classified for federal income tax· purposes as if it were a sole proprietorship, a partnership or a corporation. If the LLC .has only one owner, it will automatically be treated as.a sole proprietorship unless an election is made to be treated as a corporation. If the LLC has two or more owners, it will . automatically be considered to be a partnership unless an election ·is made to be treated as a .corporation. If the LLCdoes not elect its classification, a default classification of partnership (multi member LLC) or disregarded entity (taxed as if it were a sole proprietorship) will apply. See 26 C.F.R. § 301.7701-3 .. The election referred to is made using IRS Form 8832, Entity Classification Election. ·
States Citizenship and Immigration . Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proff~red 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. Comm. 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 ~stablishes by documentary evidence that it employed the beneficiary at a salary equal to or great.er than the proffered wage, the evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. The petitioner submitted copies of the beneficiary's IRS Forms W-2, Wage and
Tax Statemen~s, as shown in the table below:
- In 2009, IRS form W-2 stated total wages of $91,318.00 (a deficiency of $14,076.00).
- In 2010, IRS Form W-2 stated total wages of $97,179.00 (a defiCiency of $8,215 .00).
.• In 2011, IRS Form
W-2 stated total wages of $100,821.00 (a deficiency of $4,573.00).
In the instant. case, the petitioner has not established that it paid the beneficiary the full proffered · wage from the priority date and continuing until the beneficiary obtains lawful permanent resideqce.
· On appeal, counsel asserts that the benefiCiary reeeives company paid pre-tax benefits as an added benefit of his employment "cafeteria plan," and that this amount, when added back to the beneficiary's total wages, is grea~et than the amounts calculated by the director for 2009,2010, and 2011. 3
I
Contrary to counsel's assertion, certain nontaxable benefits known as "cafeteria plans" will not be added to the wages actually reported to the beneficiary on IRS Form W-2.4 An employee's gross pay minus the cafeteria plan payments results in the compensation figures which appear on the Form W-2. See I.R.C.§ 125. "The wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a prevailing wage paid on a weekly, bi-weekly or monthly basis that equals or exceeds the prevailing wage." See 20 C.F.R. § 656.10(c)(~).
Even if the higher amounts ·were considered by the AAO, the petitioner still failed to pay the proffered wage to the beneficiary in 2009 and-2010.
If, as ·in this case, 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 (1 Cir.
2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (61h Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for detetrnining a petitioner's abnity 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. lll. 1982), ajf'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 ex.ceeded the proffered wage is insufficient. Similarly showing that the petitioner paid wages in excess 6f 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 (gr~ss profits overstate an employer's ability to pay because it ignores.other necessary expenses). With respect to depreciation, the eourt in River Street Donuts noted:
The AAO recognized that a· depreciation deduction is a systematic allocation of the cost of a tangible lm~g-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 Don~ts 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 p. 6 (b)(6)Page 6 should be revised by the court by adding back depreciation is without support." Chi-Feng Chang at 537 (emphasis added).
The proffered wage is $105,394.00. The petitioner's Form 1065 for 2009 is the most recent tax return in the record. The petitioner's federal income tax return, Form 10655, stated its net income as
. detailed below:
.• In 2009, the Form 1065 stated net income of -$5,484,245.00.
Therefore, for the year 2009, the petitioner did not have sufficient net income to pay the difference between wages paid to the beneficiary and 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. 6 An LLC's year-end current assets are shown on ·Schedule L, lines 1 through 6. • Its year-end current liabilities are shown on lines 15 through 17. If the total of a LLC'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 tax return demonstrates its end-of-year net current assets as shown in the table below.
- In 2~09, the Form 1065 stated n~t current assets of -$2,023,240.00.
Therefore, for the year 2009, the record shows that the petitioner did not have sufficient net current assets to pay the difference between wages paid to the beneficiary and the proffered wage. Therefore, frqm 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 director's decision is based on an incorrect interpretation of the ·.petitioner's fmancial records, and that the petitioner has provided evidence sufficient to show that it has the ability to pay the proffered wage. ·
Counsel infers that the petitioner's bank account balances should be considered in determining the petitioner's ability to pay the proffered wage. The petitioner subm.itted copies of Its bank statements for 2009, 2010 and 2011. Contrary to counsel's claim, reliance on the balances in the petitioner's bank account" is misplaced. First, bank statements are not among the three types of evidence enumerated ih 8 C.F.R. § 204.5(g)(2) required to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases,'' the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable, unavailable, or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show the amount in an account on a given date, and Cannot show the sustainable ability to pay a proffered wage. Third,· no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow reflect additional available funds that may not have been reflected on its tax returns.
Although counsel claims that the petitioner's gross receipts have increased ·over time and that its wage expenses have always been met, reliance on the petitioner's gross receipts and Wage expenses to establish the petitioner's ability to pay the proffered wage is misplaced. As noted above, USCIS properly relies on the petitioner's net income, as stated on the petitioner's corporate tax returns. River Street Donuts, LLC v. Napolitano, 558 F.3d at 116; K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084. In general, wages already paid to others are not available "to prove the ability to pay the wage proffered to the beneficiary at the priority date of the petition and continuing to the present. Furthermore, reliance on the petitioner's future receipts is misplaced. Showing that the petitioner's gross receipts are expected to exceed the proffered wage is insufficient. A petitioner must establish its ability to pay from the date of the ·priority date, which in this case is June 14,-2009. A petition cannot be approved at a future date after eligibility is established under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45-49 (Comm. 197i). furthermore, the petitioner has not"shown through objective, audited financial documents that the anticipated increase in income will be significant enough to allow it to pay the beneficiary's wage.Not eligible at the time of filing
Against the projection of future earnings, Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Cornm'r 1977), states: ·
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could not pay the offered wage at the time the petition was filed, should subsequently become eligible to have the petition approved under a new set of facts hinged upon probability and projections, even beyond the information presented on appeal. ·
Regardless·, even if the p~titioner's net income amounts for 2009, 2010, and 2011 exceeded the proffered wage amount, which they do not, USCIS electronic records indicate that the petitioner has p. 8 . Page 8 filed another 1-140 petition since it was established in 2006. Consequently, USCIS must also take into account the petitioner's ability to pay the petitioner's wages in the context of ·its overall . recruitment efforts. Presumably, the petitioner has filed and obtained approval of the labor certifications on the representation that it requires these workers and intends to employ them upon approval of the petitions. -Therefore, it is incumbent upon the petitioner to demonstrate that it has the ability to pay the wages of all of the individuals it· is seeking to employ. If we examine only the salary requirements relating to the 1-140 petitions, the petitioner would need to establish that it has the ability to pay combined salaries of the benefic~aries. ·
The petitioner must establish that it had sufficient funds to pay all the wages from the priority date and continuing to the present. If the instant petition were the only petition filed by the petitioner, the petitioner would be required to produce evidence Of its ability to pay the proffered wage to the single beneficiary of the instant petition. However, where a petitioner h~s filed multiple petitions for multiple beneficiaries which have been pending simultaneously, the petitioner must produce evidence that its job offers to each beneficiary are realistic, and therefore, that it has the ability to pay the proffered wages to each of the beneficiaries of its pending petitions, as of the priority date of each petition and continuing until the beneficiary of each petition obtains lawful permanent residence. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. Comm. 1977) (petitioner must establish ability to pay as of the date of the Form MA 7-50B job offer, the predecessor to the Form ETA 750 and ETA Form 9089). See also 8 C.P.R. § 204.5(g)(2) . .
Counsel's a!;isertions and the evidence presented on appeal do not outweigh the evidence of record · 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.Did not show the waiver outweighs labor certification Without documentary evidence to support the claim, the. assertions of counsel will not satiSfy the petitioner's burden of proof.Claims not backed by documents The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19. I&N Dec. 533, 534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA. 1980). -·,
USCIS may consider the overall magnitude .. of the petitioQer'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. 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 ye·ar 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 bu!;iiness. 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 . iii 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 p. 9 I' .,• discretion, consider evidence relevant to the petitioner's fmancial ability that falls outside of a petitioner's net income and net current assets. USCIS may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioner's business, th~ ·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 servi~, or any other evidence that USCIS deems relevant to the. petitioner's ability to pay the proffered wage.
In this matter, the totality of the circumstances does not establish that the petitioner had or has the ability to pay the proffered wage in the relevant years. There are noJads paralleling those found in Sonegawa that are present in the instant matter to a degree sufficient to establish that the petitioner had the ability to pay the proffered wage. The petitioner has failed to demonstrate the occurrence of any ~ncharacteristic business expenditures or losses in the relevant years that would have directly affected its abili~y to pay the proffered wage. Overall, the record is not persuasive in .establishing that the job offer was realistic. ·
Accordingly, 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 has also not established that the beneficiary is qualified 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 )(1), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Comm. 1977); see also'Matter of Katigbak, 14 I&N Dec.' 45,49 (Reg. Comm. 1971). In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor 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 Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, M,adany v. Sinith, 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 (151 Cir. 1981). · In the instant case, the labor certification states that the offered position requires a bachelor's degree in computer science, with an alternate field of study in computer engineering or related engineering field. The labor certification also stated that the petitioner is willing to accept experience in an . alternative occupation; software ·engineer or developer, programmer analyst or related software development· role, with 60 months experience in .the alternate occupation. The labor certification also indicated that the petitioner was willing to accept a foreign educational equivalent. The record of proceeding contains a copy of the beneficiary's bachelor's degree. in engineering issued to him on . December 8, 2001. On the labor certification, the beneficiary claims to qualify for the offered position based on experience as a senior software engineer.
The beneficiary's claimed qualifying experience must be supported by letters from employers giving the name, address, and title of the employer, and a description of the beneficiary's experience. See 8 p. 10 · Page 10
C.F.R. § 204.5(g)(1 ). The record contains an employment letter from in which the president stated that the · company employed the beneficiary from November 2, 2006 to September 30, 2008 as a software engineer. The declarant described the beneficiru-Y's job duties. The · record also contains an employment letter from president who stated that the company employed the benefic~ary from October 1, 2005 to October 31, 2006 as a senior software engineer, and he described the beneficiary's job duties. Froni June 4, 2004 to Septerpber 30, 2005, he was an "intern" with The petitioner submitted a letter dated December 2002, from the principal . who stated that the beneficiary worked for the organization as a lecturer in their engineering department for a year. The petjtioner submitted a letter from a CEO of · who stated that the company employed the beneficiary as a software developer from August 1998 to December 1999, and he described the beneficiary'sjob duties. The petitioner also submitted a letter from the general manager or.- -rr---- __ _ _ ______ _ who stated. that the company employed' the beneficiary as a programmer in their software development department from December 1, ·1997 to July 30, 1998.Support letters generic or unsupported The declarant did notprovide a description of the beneficiary's job duties, and the employment is prior to the beneficiary's receipt of his bachelor's degree in engineering ..
The evidence in the record does not establish that. the beneficiary possessed the required experience set forth on the labor certification by the priority date. There is insufficient evidence in the record to demonstrate that the beneficiary has .five years of progressive experience in one of the jobs listed in the ETA Form 9089 subsequent to December 8, 2001, which is the date he received his bachelor's · degree.Five years of progressive experience not documented Therefore, the pe~itioner has also failed to establish that the beneficiary is qualified for the · offered 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 d~cision. See Spencer Enterprises, Inc. v. Unit~d States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (91h Cir. 2003); see·atso Soltane v. DOJ, 381 F.3d 143,.145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).'
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of -the Act, 8 U.S.C. § 1361. The petitioner has not met that burden. .
ORDER: The appeal is dismissed.