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DATE !
FEB 2 8 2013
' IN RE: Petitioner:
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' Beneficiary:
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OFFICE: TEXAS SERVICE CENTER
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
-io Massachusetts Ave ., N.W.,.MS 2090
Washington, DC 20529-2090
U.S. Citizenship and Immigration
Services
FILE:
I PETIT•ION:
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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 I and Nationality Act, 8 U.S.C. § 1153(b)(2) ·
ON BEHALF OF PETITIONER:
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I INSTRUCTIONS: I
EncloJed please find the decision of the Administrative Appeals Office in your case. All of the documents I . related to this matter have been returned to the office that originally decided your case. Please be advised that any fu~ther 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 inforlliation that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accord,ance 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 I 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 da~s of the decision that the motion seeks to reconsider or reopen. · . .
Thank ! you,
Qffio
Ron R'osenberg .
Actin~Chief, A?ministrative Appeals Office www.uscis.gov
Pag1
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 is a management consulting company. It seeks to employ the beneficiary permanently in the I United States as a research associate pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, the petition is accompanied by ETk. Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). 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 according) y.
The r~cord 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 2, 2012 denial, the single issue in this case is whether or not the petitio ner has the ability to pay the proffered wage as of the priority date and continuing until the benefibary obtains lawful permanent residence.
The re,gulation 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 j to pay the proffered wage. The petition~r must demonstrate this ability at the time the I 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 1 annual reports, federal tax returns, or audited financial statements.
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The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priorit!y date , which is the date the ETA Form 9089 was accepted for processing by any office within the e~ployment system ofthe 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). .
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Here, the ETA Form 9089 was accepted on Apnl 8, 2011. The proffered wage as stated on the ETA Form ~9089 is $30,160.00 per year. The ETA Form 9089 states that the position requires a master's I degree.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d I . . Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence prope~ly submitted upon appeal. 1
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The ~ubmission of additional evidence on appeal is. allowed by the instructions to the Form I-290B, p. 3 I I
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The e~idence 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 1979 and to currently employ two workel~ s. According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. iOn the ETA Form 9089, signed by the beneficiary on October 24, 2011, the beneficiary claime d to have worked for the petitioner. . ·
The p~titioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ET.,h.. Form 9089 labor certification application establishes a priority date for any immigrant petition later b~sed 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 lawfuljpermanent 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 Comrrl 'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, United States Jcitizenship and Immigration Services (USCIS) requires tiie petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances affectihg the petitioning business will be considered if the evidence warrants such consideration. See . I Matte1r 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 ebmine whether the petitioner employed and paid the beneficiary during that period. If the petitidner establishes by documentary evidence that it employed the beneficiary at a salary equal to or grJater than the proffered wage, the evidence will be considered prima facie proof of the petiti~ner's ability to pay the proffered wage. In the instant case, the petitioner demonstrated that it paid the beneficiary $13,920 in 2011, which is less than the proffered wage. Thus, the petitioner must demonstn1te that it can pay the difference between wages actually paid to the beneficiary and the pni ffered wage in 2011. . · · . · . .
If the ~etitioner does not establish that it employed and paid the beneficiary an amount at least equal to the j 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 expen~es. River Street Donuts, LLC v. Napolitano , 558 F.3d 111 (1st Cir. 2009); Taco Especial v. NapoNtano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6t~ Cir. filed Nov. 10, 2011) ( Relianc e qn federal income tax returns as a basis for determining a petitioner's ability to pay the prpffered wage is well established by judicial precedent . Elatos Restaurant Corp. v. Sava, 632 F. Supp.l1049 , 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.j647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983). ' Reliance on the petitioner ' s gross · receip,ts and wage expense is misplaced. Showing that the petitioner 's gross receipts exceeded the which~ are incorporated into the regulation at 8 C.F.R. § Hl3.2(a)(1). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. I .
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). I . p. 4 proffe~ed wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the proffeted wage is insufficient.
I In K.G.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Natudlization Service, now USCIS, had properly relied on the petitioner's net income figure, as stated fon the petitioner's corporate income tax returns, rather than the petitioner's gross income. The C<i)urt specifically rejected the argument that USCIS should have considered income before expen~es 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 rbspect to depreciation, the court in River Street Donuts noted: .
. . II 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 I 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 I represent current use of cash, neither does it represent amounts available to pay wages.
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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 in~; ome 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 (e mphasis added). ·
The rLord before the director closed on May 18, 2012 with the receipt by the director of the petitidner's submissions in response to the director's request for evidence. As of that date, the petitidner's 2012 federal income tax return was not yet due. Therefore, the petitioner's income tax return! for 2011 is the rhostrecent return available. The petitioner's tax returns demonstrate its net income for 2011, as shown in the table below. . .
· .lin 2011, the Form 1120S stated net income 2 of -$5,542. .
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Therefore, for the year 2011, the petitioner did not have sufficient net income to pay the difference betwecln the wages paid to the beneficiary and the proffered wage. It is noted that the petitioner only had $1!9,600 in revenue in all of 2011. It is further noted that the petitioner claimed to have no assets on its 2011 tax return.
I Therefore, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner had nclt established that it had the continuing ability to pay the beneficiary the proffered wage as of the p\dority date through an examination of wages paid to the beneficiary, or its net income or net I ' . current assets.
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Couns el asserts on appeal that the director should consider the company's line of credit, pro-rate the benefibiary's wage 3, and consider the personal assets of the petitioner's shareholders. I .
Couns1el's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax return~ 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.
In caltulating the ability to pay the proffered salary, USCIS will not augment the petitioner's net incom
Counskl requests that USCIS prorate the proffered wage for the portion of the year that occurred after t~1e priority date. We will not, however, consider 6 months of income towards an ability to pay a lesse
1r period of the proffered wage any more than we would consider 6 months of income towards paying the annual proffered wage. While USCIS will prorate the proffered wage if the record contaihs evidence of net income or payment of the beneficiary's wages specifically covering the portioi1 of the year that occurred after the priority date (and only that period), such as monthly incomb statements or pay stubs, the petitioner has not submitted such evidence.Not eligible at the time of filing
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Additi onally, because a corporation is a separate and distinct legal entity from its owners and shareh olders, the assets of its shareholders or of other enterprises or corporations cannot be I considiered 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 ~).Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in th~ governing regula:tion, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or entitie's who have no legal obligation to pay the wage." · . · Morelver, USCIS may consider the overall magnitude of the petitioner's business activities in its detern!1ination 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 I p. 7 j I I ... I·
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I .------- '-----. circunistances in this individual case, it is concluded that the petitioner has not established that it had the co~1tinuing ability to pay the proffered wage. · · The Jidence submitted does not establish that the petitioner had the continuing ability to pay the proffef.ed wage beginning on the priority date.
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The bllrden of proof in these proceedings rests solely with the petitioner. Section .291 of the Act, 8 U.S.cJ § 1361. The petitioner has not met that burden .
I ORDER: The appeal is dismissed.
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