DATE: Office: NEBRASKA SERVICE CENTER
JAN 2 9 2013
IN RE: Petitioner:
Beneficiary:
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
20 Massachusetts Ave., N.W., MS 2090
Washington, DC 20529-2090
U.S. Citiz~nship and Immigration
Services
FILE:
PETITION: 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 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 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.
Tf'K~T\
R~\t'1lberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference 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 was a sports magazine and graphic design business. It sought to employ the beneficiary permanently in the United States as an editor. As required by statute, the petition is -accompanied by an ETA 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 accordingly.
The record sh~ws 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 August 20, 2011 denial, the primary issue in this case is whether the 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) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2), provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States. An advanced degree is a United States academic or professional 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 or 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 customarily 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 aliens "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational 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 encounte"red."
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 employer 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 eith~r in the p. 3 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 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 (Act. Reg. Comm. 1977).
Here, the ETA Form 9089 was accepted on October 4, 2009. The proffered wage as stated on . the ETA Form 9089 is $48,693.00 per year. The ETA Form 9089 states that the position requires a master's degree in communications or journalism and 24 months of experience in the job offered.
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
As a threshold issue, on October 2, 2012, this office notified the petitioner that, according to the state of Hawaii official website of the BREG Online Services, the petitioner's Status in the state of Hawaii was "expired." The AAO requested that the petitioner provide proof that its business is currently in active status. The petitioner was directed to respond to the Notice of Intent to Dismiss (NOID) within thirty days of the notice. In response to the NOID, the petitioner's owner, stated in a letter that, due to accounting practices and invoicing procedures, it was necessary to "chanl:!e the structure of ." The etitioner's owner further stated that is now that a separate company, ~.was created, and that both business entitles are owned by As evidence, the petitioner submitted a Form W-9, Request for Taxpayer Identification Number and Certification for the a website· print-out illustratinl:! the functions of "and 2012 issues of
The petitioner implies that and/or is a successor-in-interest to Contrary to the petitioner's contentions, a petitioner may establish a valid successor relationship for immigration purposes if it satisfies three conditions. First, the petitioning successor must fully describe and document the transaction transferring ownership of all, or a relevant part of, the beneficiary's predecessor employer. Second, the petitioning successor must demonstrate that the job opportunity is the same as originally offered on the ~abor certification. Third, the petitioning successor must prove by a p~eponderance of the evidence that it is eligible for the immigrant visa in all respects.
Evidence of transfer of ownership must show that the successor not only purchased assets from the predecessor, but also the essential rights and obligations of the predecessor necessary to carry on the business. To ensure that the job opportunity remains the same as originally certified, the successor must continue to operate the same type of business. as the predecessor, in the same metropolitan statistical area and the essential business functions must remain substantially the same as before the ownership transfer. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481,482 (Comm'r 1986).
In order to establish eligibility for the immigrant visa in all respects, the petit~oner must support its claim with all necessary evidence, including evidence of ability to pay the proffered wage. The successor must prove the predecessor's. ability to pay the proffered wage as of the priority date and until the date of transfer of ownership to the successor. In addition, the successor must establish its ability to pay the proffered wage in accordance from· the date of transfer of ownership forward. 8 C.F.R. § 204.5(g)(2); see also Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. at 482.
The record contains no evidence to establish a valid successor relationship. There is no evidence of the organizational structure of the predecessor prior to the transfer, or the current organizational structure of the successor. The evidence does not establish that or acquired the essential rights and obligations of the predecessor I
· necessary to carry on the business in the same manner as the predecessor. The evidence does not establish that the successor is continuing to operate the same type of pusiness as the predecessor or that the job duties of the beneficiary are unchanged. The evidence does not establish that the manner in which the business is controlled py the successor is substantially the same as it was before the ownership transfer.
. The fact that and/or is owned and operated by the by the same person or share the same address is not sufficient to establish a successor-in-interest relationship. Therefore. the evidence in the record is not sufficient to establish that the and/or . _ are/is a successor-in-interest to the petitioner. As noted in the Notice of Intent to Dismiss, the current status of' is expired; therefore, the petition and the appeal to the AAO have become moot. Thus, the p~tition is not accompanied by a valid labor certification. 20 C.F.R. § 656.30(c)(2); 8 C.F.R. § 204.5(k)(4). 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 Matter of Soffici, 22 I&N Dec. 158, 165 (Comm: 1998) (citing Matter of Treasure Craft ofCalifornia,.14 I&N Dec. 190 (Reg. Comm. 1972)).2 Even if the AAO were to accept the claimed successor-in-interest relationship, the petitioner has failed to demonstrate its ability to pay the proffered wage.
PageS
The evidence in the record of proceeding shows that the petitioner was structured as a sole · proprietorship. On the petition~ the petitioner claimed that his business was established in 2004. The sole proprietor claimed to employ two workers. On the ETA Form 9089, signed by the beneficiary on November 10, 2010, the beneficiary claims to have worked for the petitioner from November 1, 2008 to September 11,2009.
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA Form 9089 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.P.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, . United States Citizenship and hnmigration Services (USCIS) requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered 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 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.
The petitioner submitted a copy of IRS Form W-2 for 2009 issued by Federal Employer Identification Number (FEIN) and not by the petitioner.
Therefore, this Form W-2 will not
A sole proprietorship is a business in which one person operates the business in his or her personal capacity. Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a corporation, a sole proprietorship is not legally separate from its owner. Therefore, the sole proprietor's income, liquefiable assets, and personal liabilities are also considered as part of the petitioner's ability to pay the proffered wage. Sole proprietors report income and expenses from their businesses on their individual (Form 1040) federal tax return each year. The business-related income and expenses are reported on Schedule C (or, if a farm, Schedule F) and are carried forward to the first page of the tax return. Where the sole proprietor is uninCorporated, the gross income is taken from the IRS Form 1040, line 37. Sole proprietors must show that they can cover their existing business expenses as well as pay the proffered wage. In addition, they must show that they can sustain themselves and their dependents. Ubeda v. Palmer, 539 F. Supp. 647, aff'd, 703 F.2d 571.
In Ubeda, 539 F. Stipp. at 650, the court concluded that it was highly unlikely that a petitioning entity structured as a sole proprietorship could support himself, his spouse and five dependents on a gross income of slightly more than $20,000 where the benefiCiary's proposed salary was $6,000 or approximately thirty percent (30%) of the petitioner's gross income.
In the instant case,the sole proprietor's IRS Forms 1040 reflect his adjusted gross income (AGI) as follows:
- In 2009; the proprietor's IRS Form 1040 stated AGI of -$11,625.00.
- In 2010, the proprietor's IRS Form 1040 stated AGI of$16,572.00.
Where the petitioner's AGI amounts exceeded the proffered wage amounts, the sole proprietor must show that he can sustain himself and his dependents by listing his personal household expenses. See id.
There is insufficient evidence in the record of proceeding to demonstrate the sole proprietor 's ability to pay the proffered wage in 2009 and 2010. His AGI was significantly lower than the proffered wage in each year.
The petitioner submitted his financial statements for 2009 and 2010. 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. An audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable assurance that the financial statements of the business are free of material misstatements. The unaudited financial statements that counsel. submitted with the petition are not persuasive evidence. The accountant's report that accompanied those fmancial statements makes clear that . they were produced pursuant to a compilation rather than an audit. As the accountant's report also makes clear, financial statements produced pursuant to a compilation are the representations of management compiled into standard form. · The unsupported representations of management are not reliable" evidence and are insufficient to demonstrate the ability to pay the proffered wage . p. 7 In a statement dated May 3, 2011, the petitioner claims that he would have been willing to contribute personal assets should it had been necessary to pay wages to the beneficiary. The petitioner also claims that the incurred expenses in expanding his business in 2009 and those expenses related to his publishing the magazine in 2009 and 2010 could have been used as profit to pay the beneficiary's wages. The petitioner further claims that he had outstanding invoices that were being worked on for coll~ction.
The petitioner asserts that the beneficiary, as an employee, will play a major role in the growth of the petitioner's business. However, in this instance, no detail ·or documentation has been provided to explain how the beneficiary's employment as an editor has and will significantly increase the sole proprietor's profits or cause the business to grow. This hypothesis cannot be concluded to outweigh the evidence presented in the petitioner's Form 1040 tax returns. Against the projection of future earnings, Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. Comm. 1977) states:
I do not feel, ncir 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.
Although the petitioner asserts that there has been an increase in his profits from 2009 to 2010, it is insufficient to demonstrate the petitioner's ability~to pay the proffered wage in those two years. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Conim. 1972)).
The assertions and the evidence presented on appeal cannot be concluded to 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 proce.ssing by the DOL.
USCIS may consider the overall magnitude of the petitioner'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 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 p. 8 I '' • :,.
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 assessing the totality of the circumstances in this case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage. There are no facts paralleling those 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. Nor has the petitioner demonstrated the occurrence of any uncharacteristic business expenditures or losses during the relevant years. The petitioner has not submitted evidence to establish that the beneficiary is replacing a former employee whose primary duties were described in the ETA Form 9089. The petitioner implies that he anticipates a steady increase in his income. Reliance on the petitioner's future receipts and wage expense is misplaced. Showing that the petitioner's gross receipts are expected to exceed the proffered wage is insufficient. The petitioner has not shown through professionally prepared audited financial documents that the anticipated increase in income will be significant enough to allow it to pay the beneficiary's wage. Regardless, future projections of increased income are insufficient to demonstrate the petitioner's ability to pay the proffered wage beginning in 2009. In addition, the petitioner has failed to demonstrate that his business is in active status or that a valid successor-in-interest relationship exists between the petitioner and and/or Overall, the record is not persuasive in