The Petitioner seeks to employ the Beneficiary as a senior programmer analyst under the second- preference, immigrant classification for members of the professions holding advanced degrees or their equivalents. Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A).
The Director of the Texas Service Center denied the petition. The Director concluded that the Petitioner did not demonstrate its required ability to pay the combined proffered wages of this and other petitions.
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal.
Employment-Based Immigration
Immigration as an advanced degree professional generally follows a three-step process. To permanently fill a position in the United States with a foreign worker, a prospective employer must fust obtain certification from the U.S. Department ofLabor (DOL). See section 212(a)(5)(A)(i) ofthe Act, 8 U.S.C. § l 182(a)(5)(A)(i). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. Id. Labor certification also indicates that employment ofa foreign national will not harm wages and working conditions ofU.S.workers with similarjobs. Id.
If DOL approves a position, an employer must next submit the certified labor application with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the requirementsofacertifiedpositionandarequestedimmigrantvisaclassification. IfUSCISapproves a petition, a foreign national may finally apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
Ability to Pay the Proffered Wage
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). If a petitioner employs less than 100 people, as in this case, evidence of ability to pay must include copies of annual reports, federal income tax returns, or audited financial statements. Id.
In determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the foll proffered wage beginning in the year of a petition's priority date. If a petitioner did not pay a beneficiary at all or did not annually pay him or her the foll proffered wage, USCIS considers whether it generated annual amounts of net income or net current assets sufficient to pay any difference between the proffered wage and the actual wages paid. I f net income and net current assets are insufficient, USCIS may consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of Here, the accompanying labor certification states the proffered wage of the offered position of senior programmer analyst as $107,806 a year. The petition's priority date is July 12, 2018, the date 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).
At the time ofthe appeal's filing, evidence ofthe Petitioner's ability to pay the proffered wage in 2019 was not yet available. For purposes of this decision, we will therefore consider the company's ability The record indicates the Petitioner's employment of the Beneficiary in nonimmigrant work visa status since June 2016. A copy of an IRS Form W-2, Wage and Tax Statement, indicates the Petitioner's payment of $72,883 in wages to the Beneficiary in 2018. That amount does not equal or exceed the annual proffered wage of$107,806. Thus, based solely on wages paid, the record does not demonstrate the Petitioner's ability to pay the proffered wage. Nevertheless, we credit the Petitioner's payments to the Beneficiary. The company need only demonstrate its ability to pay the difference between the annual proffered wage and the wages paid, or $35,123.
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). to pay only in 2018, the year of the petition's priority date.
A copy of the Petitioner's federal income tax return for 2018 reflects net income of $10,543 current assets of $15,725. Neither of these amounts equals or exceeds the $35,123 difference between Federal courts have upheld USCTS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. Donuts, LLC v. Napolitano. 558 F.3d 111, 118 (1st Cir. 2009); Rivzi v. Dep 't ofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292 (5th Cir. 2015).
In any future filings in this matter. the Petitioner must submit copies of an annual report, federal tax return, or audited financial statements for 2019.
On its federal income tax return for 2018, the Petitioner chose to be treated as an S corporation. S corporations with income, credits, or deductions from outside their trades or businesses report such adjustments on Schedules K oftheir IRS Forms l 120S. U.S. Income Tax Returns for S Corporations. See U.S. Internal Revenue Serv. (IRS), "Instructions for Form 1120S," 21, https://www.irs.gov/pub/irs-pdf/i l l 20s.pdf (last visited June 25, 2020) (describing Schedule K as a summary schedule of shareholders' shares of a corporation's income, deductions, and credits). The Petitioner reported additional deductions on Schedule K of its federal income tax return for 2018. We therefore cite the amount on line 18 of the Petitioner's Schedule K in an effort to more accurately reflect the company's annual net income. and net p. 3 the annual proffered wage and the wages the Petitioner paid the Beneficiary. Thus, based on examinations ofwages paid by the Petitioner, its net income, and its net current assets, the record does not demonstrate the company's ability to pay the proffered wage.
On appeal, the Petitioner asserts that its 2018 net current assets totaled $123,337, more than the annual proffered wage of $107,806. The Petitioner, however, miscalculates its net current assets. The company appears to subtract what it calls its "total liabilities and capital" of $231,610 from its total assets of $354,947 to arrive at the figure of $123,337. minus current liabilities. Joel G. Siegel & Jae K. Shim, Barron's Dictionary ofAccounting Terms 117-18 (3d ed. 2000). Schedule L of the Petitioner's federal income tax return for 2018 lists current assets of $33,146 and current liabilities of $17,421. The Petitioner's net current assets for 2018 therefore equaled $15,725, less than both the annual proffered wage, and the difference between the proffered wage and the wages the Petitioner paid the Beneficiary.
The Petitioner also contends that USCIS improperly disregards the company's bank account statements from September 2018 through November 2018, which, as of November 30, 2018, reflect an end-of-month balance of more than $40,000. Noting that the regulation at 8 C.F.R. § 204.5(g)(2) allows consideration of bank account records "[i]n appropriate cases," the Petitioner contends that the account balances represent fonds available to pay the proffered wage in 2018. Our analysis of the Petitioner's net current assets, however, already considered the $33,146 in end-of-year cash listed on the company's federal income tax return for 2018. The Petitioner has not demonstrated that the cash listed on the tax return excludes the bank account fonds and that the bank fonds represent additional money available to pay the proffered wage in 2018. See section 291 of the Act (requiring a petitioner to demonstrate eligibility for a requested benefit).
The Petitioner similarly contends that USCIS errs in disregarding evidence of the company's $25,000 line of credit. A credit line, however, 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 credit lines are not guaranteed, they do not establish petitioners' abilities to pay proffered wages. See Rahman v. Chertojf, 641 F.Supp.2d 349, 352 (D. Del. 2009) (affirming the AAO's determination that a line of credit did not establish a petitioner's ability to pay a proffered wage). We therefore reject the Petitioner's argument.
In addition, USCIS records indicate the Petitioner's filing of Form 1-140 pet1t10ns for other beneficiaries. A petitioner must demonstrate its ability to pay the proffered wage of each petition it files from a petition's priority date onward. 8 C.F.R. § 204.5(g)(2). This Petitioner must therefore demonstrate its ability to pay the combined proffered wages of this petition and any others that were pending or approved as of this petition's priority date or filed thereafter. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval where, as of the filing's grant, a petitioner did not demonstrate its ability to pay the combined proffered wages of The Petitioner also appears to miscalculate its "total liabilities and capital." Schedule L of the company's 2018 federal income tax return reflects total liabilities of $355,535 ($17,421 in current liabilities, plus $125,513 in shareholder loans, plus $212,60 I in mortgages, notes, and bonds payable in a year or more) and capital of $1,000. multiple beneficiaries).
The Petitioner need not demonstrate its ability to pay proffered wages ofpetitions that it withdrew or that USCTS rejected, But net current assets represent current assets
In response to the Director's written request for additional evidence (RFE), the Petitioner provided information about six Form I-140 petitions it filed for other beneficiaries. USCIS records indicate the Petitioner's later withdrawal ofone ofthe six petitions. its ability to pay the proffered wage of the withdrawn petition.
Based on the information provided by the Petitioner, the combined proffered wages of this and the other five applicable petitions total $618,008. Copies of Forms W-2 show that the Petitioner paid applicable beneficiaries total wages that year of $316,973.65.
Subtracting the wages paid from the total proffered wages leaves $301,034.35 in combined proffered wages that the Petitioner must demonstrate its ability to pay in 2018. The company's federal income tax return for 2018, however, reflects insufficient amounts of net income ($10,543) and net current assets ($15,725) to cover that As previously indicated and as the Petitioner argues, we may consider factors other than wages paid, net income, and net current assets in determining the Petitioner's ability to pay. Under Sonegawa, we may consider: how long the Petitioner has conducted business; its number of employees; the growth of its business; its incurrence of uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a current employee or outsourced service; or other factors affecting the Petitioner's ability to pay the proffered wage. Matter ofSonegawa, 12 I&N Dec. at 614-15.
Here, the record indicates the Petitioner's continuous business operations since 2013. On the Form I- 140, which was filed in November 2018, the Petitioner stated its employment of 16 people. But a copy of a federal payroll tax return for the third quarter of 2018, the most recent payroll tax return submitted, states the company's employment ofonly five workers. Although copies ofthe Petitioner's federal income tax returns show that its 2018 gross annual revenues exceed those of 2014 by more than 10 times, the returns also show that, from 2017 to 2018, the company's gross annual revenues decreased by more than 41 %.
In addition, unlike the petitioner in Sonegawa, this Petitioner has not documented its incurrence of uncharacteristic losses or expenses, or its possession of an outstanding reputation in its industry. The record also does not establish the Beneficiary's replacement of a current employee or outsourced service. Also unlike the petitioner in Sonegawa, this Petitioner must demonstrate its ability to pay the denied, or revoked. The Petitioner also need not demonstrate its ability to pay proffered wages before the priority dates of corresponding petitions or after corresponding beneficiaries obtained lawful permanent residence.
combined proffered wages of multiple pet1t10ns. A totality of circumstances under Sonegawa therefore does not demonstrate the Petitioner's ability to pay the proffered wage.
The Experience Required for the Offered Position
Although unaddressed by the Director, the record also does not establish the Beneficiary's qualifying employment experience for the offered position. A petitioner must demonstrate a beneficiary's possession of all DOL-certified job requirements of an offered position by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). In evaluating a beneficiary's qualifications, USCIS must examine the job-offer portion of an accompanying labor certification to determine a position's minimum requirements. USCIS may neither ignore a certification term, nor impose additional requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for setting the content of the labor certification") (emphasis in original).
Here, the labor certification states the primary requirements of the offered pos1t10n of senior programmer analyst as a U.S. master's degree or a foreign equivalent degree, with no training or experience required. The labor certification also states the Petitioner's acceptance of an alternate combination of education and experience: a bachelor's degree and five years of "related IT [information technology] experience." The Petitioner requests the Beneficiary's classification as an advanced degree professional. Thus, the job-offer portion of the labor certification must require an advanced degree professional. See 8 C.F.R. § 204.5(k)(4)(i). The offered position therefore requires the Beneficiary's possession of at least five years of post-baccalaureate experience. See 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree" to include "[a] United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty").
On the labor certification, the Beneficiary attested that, by the petition's priority date, he gained about five years and six months of foll-time, post-baccalaureate, qualifying experience in India. A provisional certificate and consolidated marks statements document the Beneficiary's attainment of a bachelor's degree from an Indian university in October 2010. p. 6 possession ofless than the requisite five years of post-baccalaureate experience. The record therefore does not establish the Beneficiary's possession of the minimum experience required for the offered position. In any future filings in this matter, the Petitioner must submit evidence pursuant to 8 C.F.R. § 204.5(g)(l) to demonstrate the Beneficiary's claimed employment from March 2013 through April 2014.
The Petitioner's Intention to Employ the Beneficiary
Also unaddressed by the Director, the record does not establish the Petitioner's intention to employ the Beneficiary in the offered position. A business may file a Form I-140 petition ifit is "desiring and intending to employ [a foreign national] within the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. See Matter of Izdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (affirming a petition's denial where, contrary to an accompanying labor certification, a petitioner did not intend to employ a beneficiary as a domestic worker on a full-time, live-in basis).
Here, the labor certification states the Petitioner's intention to permanently employ the Beneficiary in the full-time, offered position of senior programmer analyst from the company's headquarters in Texas. Online government records, however, indicate the Petitioner's forfeiture of its corporate status in its home state. See Tex. Comptroller of Pub. Accounts, 'Taxable Entity Search," https://mycpa.cpa.state.tx.us/coa/ (last visited June 25, 2020). The Petitioner's forfeiture of its corporate status casts doubts on whether the company intends to continue business operations and permanently employ the Beneficiary in the offered position. In any future filings in this matter, the Petitioner must submit evidence of its continuing business activities and its intention to permanently employ the Beneficiary in the offered position.
Conclusion
The Petitioner has not demonstrated its continuing ability to pay the proffered wage of the offered position from the petition's priority date onward. We will therefore affirm the petition's denial.
ORDER: The appeal is dismissed.