Degree or an Alien of Exceptional Ability Pursuant to Secti.on 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 may 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 tile 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,
Ron Rosenberg
Acting Chief, Administrative Appeals Office
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition and subsequent motion to reconsider, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a church. It seeks to employ the beneficiary permanently in the United States as a · member of the clergy, pursuant to section 203(b)(2) of the hnmigiation and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, an ETA Form 9089, Application for Permanent Employment Certification approved by the Department of Labor (DO.L), accompanied the petition. Upon reviewing the petition, the director determined that the petitioner failed to establish its ability to pay the proffered wage. ·
In pertinent part, section 203(b )(2) of the Act provides immigrant cl~ssification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States.
The regulation 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 employ~r 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 onits ETA Forni 9089 as certified by the DOL and submitted with the instant petition. See Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
Here, the ETA Form 9089 that was accepted for processing on September 30, 2008, shows the proffered wage as $30,826 per year. The petitioner claims to have been established in 1984 and to employ 2 workers at the time the petition was filed. On the ETA Fonn 9089, signed by the beneficiary on April25, 2011, he did not state he had been employed by the petitioner.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). . .
A certified labor certification establishes a priority date for any immigrant petition later based on the ETA Form 9089. Therefore, 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 a beneficiary obtains lawful permanent resident status. The petitioner's ability to pay the · proffered wage is an essential p. 3 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 States Citizenship and Immigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the be~eficiary'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.l967) .
. ( 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.
If, as in this case, the pe~itioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage during the requisite period, USCIS would normally examine the net income figures, or the net current assets figures, on the petitioner's federal income tax return. However, the record reflects that because the petitioner is a tax exempt religious organization, it is not required to file, and does not file, income tax returns with the federal government. Consequently, there are no federal tax returns available to the USCIS for analysis. The. record contain's the following financial information provided by the petitioner pertaining to its ability to pay the beneficiary the proffered wage in 2008 and onwards.
1. Bank statements from
2008 to June 2011
2. A line of credit for $50,000
purporting the monthly balance from September
3. Offerings and Expenditure reports for fisCal years 2006 to 2010
· 4. Various unaudited financial statements
As noted supra, evidence · of financial ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. 8 C.F.R. § 204.5(g)(2). Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.Claims not backed by documents See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)).
Counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those financial statements must be audited. As there is no accountant's report accompanying these statements, the AAO cannot conclude that they are audited p. 4 statements. Unaudited financial statements are the representations of management. The unsupported representations of management are not reliable evid(!nce and are insufficient to demonstrate the ability to pay the proffered wage. However, based on the limited financial information, we have reviewed the fiscal years 2008 to 2010 Offering and Expenditure reports submitted by the petitioner in the table below: ·
Offerings and Expenses
Fiscal Year Proffered Wage Expense Offerings Total
2008 $30,826 $147,899 $158,852 -$19,873
2009 $30,826 $168,024 $171,527 -$27,323
2010 $30,S26 $149,542 . $154,692 -$25,676
We have taken the difference between the offerings less the proffered wage and expenses. For fiscal years 2008 to 2010, the petitioner would have had higher expenses than offerings if the beneficiary's wage was included. Therefore, it is more likely than not that the ::petitioner could not pay the proffered wage for fiscal years 2008 to 2010.
Further, counsel has offered the petitioner's bank statements from September 2008 to June 2011. Concerning bank statements, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. Moreover, bank statements show the amount in an account on a given date, and cannot show the sustainable ability to pay a proffered wage. However, in light of the petitioner's tax status, we will review the submitted statements. The record of proceeding contains monthly statements from the petitioner's savings aecount, with average annual balances of$8,790; $8,750; $7,480; and $9,273 for the years 2008, 2009, 2010, and 2011, respectively. As in the instant case, where the petitioner has not established its ability to pay the proffered wage in the priority date year or in any subsequent year based on its offerings and expenses, the statements must show an average annual balance sufficient to make up any shortfall. Therefore, the average annual balances iri the years 2008, 2009, 2010, and 2011 ate not sufficient to cover the full proffered wage. Thus, the petitioner's cash assets as reflected in its savings accounts do not establish its continuing ability to pay the proffered wage.
Next, counsel's reliance on a "bank line" or "line of credit" is a bank's unenforceable commitment to make. loans to a particular borrower up to a specified maximum during: a specified time period. A line of credit is not a contractual or legal obligation on the part of the bank. See John Downes and Jordan Elliot Goodman, Barron's Dictionary of Finance and Investment Terms 45 (51h ed. 1998).
Since the line of credit is a "commitment to loan" and not an existent loan, the petitioner has not established that the unused funds from the line of credit are available at the time of filing the petition. As noted above, a petitioner must' establish eligibility at the time of fi~ing; a petition cannot be approved at a future date after the petitioner becomes eligible under' a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm 'r 1971 ). Comparable to the limit on a credit card, the line of credit cannot be treated as cash or as a cash asset. However, if the petitioner wishes toJely on a line of credit as evidence of ability to pay, the petitioner must submit documentary evidence, such as a detailed business plan and p. 5 Page 5. audited cash · flow statements, to demonstrate that the line of credit will augment and not weaken its ovenill financial position; the record contains none of the evidence. Therefore, USCIS will give less weight to loans and debt as a means of paying salary since the debts will increase the petitioner's liabilities and will not improve its overall financial position. Although lines of credit and debt are an integral part of any business operation, USCIS must evaluate the overall financial position of a petitioner to determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy the proffered wage. See Matter ofGreat Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977). Thus based upon review of the petitioner's bank account statements, unaudited offering and expenditure reports, and claimed line of credit, we find that more likely than not, the petitioner has not established its ability to pay the proffered wage from the priority date onward.
Finally, USCIS may consider the overall magnitude of the petitioner's business activities in its determination ofthe petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 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. 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, 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 petitioner purports it has been in existence since 1984, claims to employ two workers, and appears to have increased its expenses and received lower offerings. The record is silent concerning, its established historical growth, the occurrence of any uncharacteristic expenditure or losses, the petitioner's reputation within its community, and whether the beneficiary is replacing a former employee or an outsourced service. 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.
... I ...
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.