The Petitioner seeks to employ the Beneficiary as a senior programmer analyst under the second- preference, immigrant visa classification for members of the professions holding advanced degrees. See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § l 153(b)(2)(A).
The Director of the Texas Service Center denied the petition, and we dismissed the Petitioner's following appeal. See In Re: 9714493, (AAO July 10, 2020). We affirmed the Director's conclusion that the Petitioner did not demonstrate its required ability to pay the proffered wage of the offered position. We also found that the record did not establish the Beneficiary's possession ofthe minimum employment experience required for the position or the Petitioner' s intention to employ him in the job.
The matter is before us again on the Petitioner's motion to reconsider. Upon review, we will dismiss the motion.
Motion Criteria
A motion to reconsider must demonstrate that the prior decision misapplied law or U.S. Citizenship and Immigration Services (USCIS) policy based on the record at that time. 8 C.F.R. § 103.5(a)(3). We may grant a motion to reconsider that meets these requirements and demonstrates eligibility for the requested benefit.
IL ABILITY TO PAY THE PROFFERED WAGE
The labor certification states the proffered wage of the offered position of senior programmer analyst as$107,806ayear. Thepetition'sprioritydateisJuly12,2018,thedatetheU.S.DepartmentofLabor (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).
First, we note that the company has not demonstrated its "continuing" ability to pay the proffered wage of the offered position. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its ability to pay "at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence"). In our appellate decision, we found that regulatory required evidence of the p. 2 Petitioner's ability to pay in 2019 was not yet available at the time ofthe appeal's filing. We therefore considered the Petitioner's ability to pay only in 2018, the year of the petition's priority date. We instructed the Petitioner, however, to submit copies of annual reports, federal tax returns, or audited financial statements for 2019 in any future filings in this matter.
Contrary to our instructions, the Petitioner has not filed a motion to reopen with the required 2019 evidence or explained its inability to do so. The motion to reconsider addresses only the Petitioner's 1 ability to pay in 2018.
The Petitioner argues that, when considering the growth of its business in our ability-to-pay analysis under Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967), we incorrectly focused on its gross income, rather than on its net income. We found that copies of the Petitioner's federal income tax returns show that, from 2017 to 2018, the company's gross annual revenues decreased by more than 41 %. The Petitioner notes that its tax returns also show continuous increases in its annual net income amounts from 2014 through 2018.
We agree that the consecutive increases in the Petitioner's net annual income constitute a positive factor in the Sonegawa analysis. The increases, however, are not significant enough to demonstrate the Petitioner's ability to pay the proffered wage. The tax returns show the company's generation of net income of- $44,780 in 2014, $9,512 in 2015, $10,214 in 2016, $12,293 in 2017, and $13,197 in 2018. Thus, the record does not indicate that the Petitioner has ever generated annual net income equaling or exceeding the $301,034.35 difference between the combined proffered wages and the wages the company paid its applicable beneficiaries in 2018. In fact, the record does not indicate that the Petitioner has ever generated annual net income equaling or exceeding even the $35,123 difference between the proffered wage and the 2018 wages the company paid the Beneficiary. The increases in net income therefore do not overcome the negative factors in the Sonegawa analysis. Those negative factors include the significant decrease in the Petitioner's annual revenues from 201 7 to 2018 and the company's obligation to demonstrate its ability to pay the combined proffered wages of multiple beneficiaries.
In our appellate decision, our Sonegawa analysis found insufficient evidence of the Petitioner's possession of an outstanding reputation in its industry. On motion, the Petitioner asserts its receipt of a 2016 award in the city of its headquarters for "IT [Information Technology] Consulting Services."
Counsel's assertion of the Petitioner's receipt of the award, however, does not constitute evidence. See Matter ofObaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). The Petitioner must substantiate counsel's statement with independent evidence, which may include affidavits and declarations. The evidence should also include information about the award's criteria. Thus, the Petitioner has not demonstrated its possession of an outstanding reputation in its industry.
The record therefore does not establish the Petitioner's "continuing" ability to pay the proffered wage. Thus. even if the motion to reconsider would demonstrate the Petitioner's ability to pay in 2018, which it does not, the company would not establish its "continuing" ability to pay the proffered wage under 8 C.F.R. § 204.5(g)(2). See also 8 C.F.R. § 103.2(b)(14) (authorizing USCIS to deny a benefit request if a petitioner does not submit requested evidence that precludes a material line ofinquiry).
The Petitioner also argues that we erred in determining its ability to pay by disregarding its $25,000 bank line of credit. The Petitioner notes that, '[i]n appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records may be submitted by the petitioner or requested by the [immigration service]." 8 C.F.R. § 204.5(g)(2) (emphasis added).
The regulation's allowance of additional ability-to-pay evidence, however, does not convince us of the probative value ofthe Petitioner's credit line. As explained in our appellate decision, a credit line represents a bank's unenforceable commitment to loan money. John Downes & Jordan Elliot Goodman, Barron's Dictionary ofFinance and Investment Terms 45 (5th ed. 1998). Because the Petitioner's credit line is not guaranteed, it does not establish the Petitioner's ability to pay the proffered wage. See Rahman v. Chertoff, 641 F. Supp. 2d 349, 352 (D. Del 2009) (affirming our determination that a credit line did not establish a petition's ability to pay). Moreover, the Petitioner's credit line is for $25,000, less than the $301,034.35 difference between the combined proffered wages and the wages the company paid its applicable beneficiaries in 2018, and even less than the $35,123 difference between the proffered wage and the 2018 wages the company paid the Beneficiary. The Petitioner's credit line therefore does not establish its ability to pay the proffered wage.
Finally, citing Matter ofMaysa, Inc., 98-INA-259 (BALCA May 21, 1999), the Petitioner notes that it need not pay a proffered wage until after a beneficiary obtains lawful permanent residence (LPR). The Petitioner therefore asserts that, because its beneficiaries have not yet obtained LPR status, it need not demonstrate its ability to pay their combined proffered wages.
The decision of the Board of Alien Labor Certification Appeals (BALCA) in Maysa, however, does not apply to these immigrant visa proceedings. First, BALCA decisions do not bind USCIS. See 8 C.F.R. § 103.10(b) (requiring Department ofHomeland Security employees to follow only precedent decisions of the Board of Immigration Appeals and the Attorney General). Also, the Maysa decision interpreted a DOL labor certification regulation, not a USCIS rule for immigrant visa petition proceedings. In Maysa, a BALCA panel held that DOL erred in denying a labor certification application where the foreign national already worked for the employer in the offered position but was not receiving the position's proffered wage. Matter ofMaysa, supra, at *2. The panel ruled that the applicable DOL regulation required the employer's payment of the wage only "when the alien begins work," meaning upon the alien's future receipt of LPR status. Id. at *3 (citing 20 C.F.R. § 656.20(c)(2)(1998), recod[fied at 20 C.F.R. § 656.l0(c)(l)).
As noted in Maysa, id., however, immigrant visa petition proceedings have different requirements than laborcertificationproceedings. Althoughanemployerneednotactuallypayabeneficiaryaproffered wage until he or she obtains LPR status, a petitioner in petition proceedings must demonstrate its ability to pay a proffered wage "at the time the priority date is established." 8 C.F.R. § 204.5(g)(2). Thus, even though the Petitioner's beneficiaries have not yet obtained LPR status, the company must demonstrate its ability to pay them from the date of the labor certification application's filing. We therefore reject the Petitioner's argument.
For the foregoing reasons, the motion to reconsider does not establish our misapplication of law or policy in finding insufficient evidence of the Petitioner's ability to pay the proffered wage.
The Required Experience
The Petitioner argues that we erred in finding insufficient evidence of the Beneficiary's qualifying experience for the offered position of senior programmer analyst. To qualify, the Petitioner must demonstrate the Beneficiary's possession ofat least five years ofIT-related experience. The Petitioner submitted letters from the Beneficiary's former employers, asserting the letters' documentation of about five years, six months of IT-related experience. We discounted a letter purportedly verifying more than one year of employment, however, because it did not describe the Beneficiary's experience. The Petitioner characterizes the basis of our denial as "a miniscule technicality" and asserts that "there is no legal authority" for the petition's denial on that ground.
Contrary to the Petitioner's assertion, however, the regulation at 8 C.F.R. § 204.S(g)(l) authorized the petition's denial on this ground. The regulation states:
Evidence relating to qualifying experience or training shall be in the form of letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and title ofthe writer, and a specific description ofthe duties performed by the alien or of the training received.
The regulation, however, requires all experience letters to include job-duty descriptions. See 8 C.F.R. § 204.5(g)(l) (stating that "letter(s) ... shall include ... a specific description ofthe duties performed by the alien"). The other regulatory-compliant letters therefore do not atone for the deficient letter.
For the foregoing reasons, the motion to reconsider does not demonstrate our misapplication of law or policy in finding insufficient evidence of the Beneficiary's qualifying experience for the offered position.
Intention to Employ in the Offered Position
Our appellate decision noted the Petitioner's forfeiture of its corporate status in its home state, casting doubt on its intention to continue business operations.