The Petitioner, an information technology and consulting company, seeks to employ the Beneficiary as a consultant. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a,U.S. employer to sponsor a professional with an advanced degree for lawful permanent residence.
The Director of the Texas Service Center denied the petition on the ground that the evidence of record did not establish the Petitioner's continuing ability to pay the proffered wage from the priority date up to the present.
On appeal,. the Petitioner submits a brief and additional documentation and asserts that it has established its continuing ability to pay the proffered wage.
Upon de novo review, we will dismiss the appeal.
Law
Employment-based immigration generally follows a three-step process. First, an employer must 1 petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255. obtain an approved labor certification from the U.S. Department of Labor (DOL).
See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the The date the labor certification is filed is called the "priority date." 8 C.F.R. § 204.5(d). p. 2 A petitioner must establish, among other things, that it has the ability to pay the beneficiary the proffered wage, as stated on the labor certification, from the priority date onward. The regulation· at 8 C.F.R. § 204.5(g)(2) provides, in pertinent part, as follows:
Ability ofprospective 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 either in the form of copies of annual reports, federal tax returns, or audited financial statements. In a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage. In 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 Service.
Analysis
The Petitioner's Form I-140, Immigrant Petition for Alien Worker, was accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification). As stated in section G of the labor certification, as well as in part 6 of the petition, the proffered wage of the job offered is $102,315 per year. Thus, the Petitioner must demonstrate its continuing ability to pay the proffered wage beginning on the priority date, which is March 25, 2014. See 8 C.F.R. § 204.5(d).
In determining ability to pay, we first examine whether a petitioner paid a beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage each year, we next consider whether it generated sufficient annual amounts of net income or net current assets to pay any differences between the wages paid and the proffered wage. If a petitioner's net income and net current assets are insufficient, we may also consider the overall magnitude of its business activities. See Matter of Sonegawa. 12 l&N Dec. 612, 614-15 (Reg'l Comm'r 1967).
The Petitioner did not submit evidence of wages paid in 2014 or 2015. submitted bi-weekly pay stubs showing that it paid the Beneficiary an hourly rate of $52.50 from July to August 2016 for various hours worked per week, for a total of $22,346.88 wages paid in 2016. In this case, the Petitioner has not established that it paid the Beneficiary the proffered wage We withdraw the Director's finding that the Petitioner established its ability to pay the proffered wage in 2015 because it submitted an IRS Form W-2 showing that it paid the Beneficiary $156,579 in 2015. The 2015 IRS Form W-2 was evidence of wages paid to the Beneficiary by his prior employer, not the Petitioner. 3 On appeal, the Petitioner asserts that the Director misinterpreted and misapplied the relevant statute, regulations, and of$102,315 in any year, but we may credit the wages paid in 2016.
For 2016, the Petitioner
As the record does not establish that the Petitioner paid the Beneficiary the full proffered wage in 2014, 2015, or 2016, we next examine the Petitioner's income and net current assets. The Petitioner's federal income tax returns for 2014 and 2015, in conjunction with the Petitioner's evidence of wages paid in 2016, reflect the following information:
Net Income
$70,559 $26,094 N/A
In this case, neither the Petitioner's net income nor net current assets for 2014 and 2015 are sufficient to pay the difference between the proffered wage and the wages paid. The record therefore does not establish the Petitioner's ability to pay the proffered wage in either 2014 or 2015.
, Further, because the information for 2016 was not available, we cannot affirmatively find that the 6 Petitioner has the ability to pay in that year.
The Petitioner also cites to Sonegawa and contends that we must consider the totality of circumstances and the overall magnitude of its business activities in determining the Petitioner's ability to pay the proffered wage. We may consider such factors as the number· of years the petitioner has been doing binding case law, and contends that it has submitted sufficient evidence to establish its ability to pay the proffered wage. The Petitioner cites to a 2004 USCIS memorandum from William Yates (Yates Memorandum), which addresses a petitioner's ability to pay. The Petitioner refers to specific language from the Yates Memorandum which states: "If the petitioner has paid the beneficiary an amount less than the [proffered] wage, it must be shown that the petitioner has the ability to pay the difference between the wages actually paid and the [proffered] wage." USCIS Policy Memorandum HQOPRD 90/16.45, Determination ~f Ability to Pay under 8 CFR 204.5(g)(2) at 2 (May 4, 2004), https://www.uscis.gov/laws/policy-memoranda. However it is unclear what exactly the Petitioner is asserting with this statement. The Director considered wages paid to the Beneficiary according to the Yates Memorandum.
According to Barron's Dictionary ofAccounting Terms 117 (3d ed. 2000), "current assets" consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current liabilities" are obligations payable (in most cases) within one year, such as accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). !d. at 118.
In 2014, the Petitioner filed an IRS Form 1120S. Where an S corporation's income is exclusively from a trade or business, USCIS considers net income to be the figure for ordinary income, shown on line 21 of page one of the petitioner's IRS Form 1120S. However, where an S corporation has income, credits, deductions, or other adjustments from sources other than a trade or business, they are reported on Schedule K and the net income is found on line 18 (2006-2015) of Schedule K. See Instructions for IRS Form 1120S, at 'http://www.irs.gov/pub/irs-pdf/i1120s.pdf (last accessed June 26, 2017) (indicating that Schedule K is a summary schedule of all shareholders' shares of the corporation's income, deductions, credits, etc.). Because the Petitioner had additional deductions and other adjustments shown on its Schedule K for 2014, its net income is found on Schedule K of its tax return.
We withdraw the Director's finding that the Petitioner established its ability to pay in 2016 based on the pay statements submitted. The information submitted is not sufficient to establish the Petitioner's ability to pay based on wages paid, net income, or net current assets.
Year Wages Paid
2014 $0
2015 $0
2016 $22,346.88
Difference between Proffered Wage and Wages Paid $102,315
$102,315 $79,968.12
Net Current 4
Assets
-$320,840 -$201,395 N/A p. 4 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 we deem relevant to the petitioner's ability to pay the proffered wage.
Here, the Petitioner contends that it has been in business since 1993, has paid salaries over the last three years between $3,770,453 and $5,593,392, and has a prominent, international clientele. However, the Petitioner has not identified that it has seen uncharacteristic losses or expenses in the period in question. Moreover, the documents the Petitioner submits to establish its reputation are printouts from its own website and therefore self-promoting materials rather than, for example, letters from current or former clients or similar companies that could establish its reputation within its industry.
The Petitioner also suggests that it will experience greater revenue going forward, and asserts that because it already employs the Beneficiary the company has received an immediate influx of $11 for each hour he works, "which is a 29% gross marginal increase in income." The Petitioner appears to have made this calculation by considering that the proffered wage breaks down to $49.19 per hour and that a contract that the Petitioner entered into with another company for the Beneficiary's services will require the other company to pay an hourly rate of $60, a difference of approximately $11. However, the Petitioner has not asserted or provided evidence that the Beneficiary will be performing work for this client alone in the proffered full-time position, such that each hour worked by the Beneficiary will generate income at this rate. Moreover, the bi-weekly statement for the period ending on August 30, 2016, shows that the Beneficiary worked only 48 hours during that two- week period. Therefore, the Petitioner's own evidence does not support its claim that the Beneficiary's current employment is providing the Petitioner with an additional $11 per hour of income, or that the Beneficiary's part-time work on contract will generate sufficient income to cover Further, the Petitioner has not explained how the Beneficiary's employment on this contract, which only dates from June 2016, establishes its ability to pay in 2014 or 2015.
The Petitioner also asserts that it has over $1,700,000 at its disposal that should count toward establishing its ability to pay the proffered wage. The Petitioner appears to be referring to the evidence of a line of credit that it has had since 2014. In calculating the ability to pay the proffered salary, we will not augment the Petitioner's net income or net current assets by adding in the Petitioner's credit limits, bank lines, or lines of credit. A "bank line" or "line of credit" is a bank's unenforceable The Petitioner urges the consideration of the Beneficiary's proposed employment as an indication that the Petitioner's income will increase, and cites Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989), in support of this assertion. In this instance, the Petitioner has not provided sufficient detail or documentation to explain how the Beneficiary's employment will significantly increase profits or could establish its ability to pay in 2014,2015, and 2016. The Petitioner's suggestion that the Beneficiary will generate additional revenue for the company does not outweigh the evidence presented in its tax returns.Did not show the waiver outweighs labor certification
Matter ofD-C-, Inc. the full-time salary specified on the labor certification. p. 5 commitment to make loans to a particular borrower up to a specified maximum during a specified time period. A line ofcredit is not a contractual or legal obligation on the part ofthe bank. See John Downes and Jordan Elliot Goodman, Barron's Dictionary ofFinance and Investment Terms 45 (5th ed. 1998).
Since the line of credit is a "commitmen! to loan" and not an existent loan, the Petitioner has not established that the unused funds from the line of credit were available at the time of filing the petition. A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). Moreover, a petitioner's existent loans will be reflected in the balance sheet provided in the tax return or audited financial statement and are fully considered in the evaluation of the petitioner's net current assets. 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 to rely on a line of credit as evidence of ability to pay, the petitioner must submit documentary evidence, such as a detailed business plan and audited cash flow statements, to demonstrate that the line of credit will augment and not weaken its overall financial position. Finally, we 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, we 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). In this case, the Petitioner has not submitted other documentary evidence sufficient to establish that its line of credit strengthens its overall financial position for purposes of establishing its ability to pay.
We also note that, unlike the petitioner in Sonegawa, the Petitioner in this case has filed at least 18 additional Form I-140 petitions. The Petitioner must also establish its continuing ability to pay the proffered wage of those petitions from the priority date in this case, until the other petitions are denied or withdrawn, or the beneficiaries obtain lawful permanent residence. In any further proceedings the Petitioner must submit evidence of its ability to pay the proffered wage of those additional Form I-140 beneficiaries.
Thus, assessing the totality ofthe circumstances, we find that the Petitioner has not established that it had the continuing ability to pay the proffered wage from the priority date onward.
Conclusion
For the reasons discussed above, the Petitioner has not established its continuing ability to pay the proffered wage from the priority date up to the present. Accordingly, we will affirm the Director's denial of the petition. , ORDER: The appeal is dismissed.
, Cite as Matter ofD-C-, Inc., ID# 477596 (AAO July 7, 2017)