The Petitioner, a provider of online advertising fraud detection software, seeks to employ the Beneficiary as a vice president, product. I t requests classification o f the Beneficiary as a member o f 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 resident status.
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not established its ability to pay the Beneficiary the proffered wage. The Director also did not accept the Petitioner's amended Form I-140, Immigrant Petition for Alien Worker, because it was not accompanied by a new filing fee.
On appeal, the Petitioner asserts that a new filing fee is not required for an amended Form I-140 submitted to establish a successor-in-interest, and claims that the evidence in the record establishes its ability to pay the proffered wage. Upon de novo review, we will dismiss the appeal.
Law
Employment-based immigration is generally a three-step process. First, an employer obtains an approved ETA Form 9089, Application for Permanent Employment Certification (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). Next, 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. Finally, ifUSCIS approves the immigrant visa petitioner, the foreign national applies 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.
Analysis
On appeal, the Petitioner contends that its purchase by shortly after it filed the Form I-140 establishes that company as its successor-in-interest in this matter. The Petitioner also contends on appeal that it cannot provide its 2015 tax return since it was p. 2 a wholly-owned subsidiary of and a disregarded entity for tax purposes. It maintains that proof of its ability to pay the proffered wage is provided by the $240,282 in cash assets reported in Schedule L of 2015 tax return. It further maintains that the Director's finding that it had relied on a line of credit to demonstrate its ability to pay reflects the Director's misreading of its bank statements.
A. Successor-In-Interest
A labor certification is valid only for the particular job opportunity stated on the application form. 20 C.F.R. § 656.30(c). Therefore, if the labor certification is to remain viable for use by an employer other than the business entity that filed the labor certification, that employer must establish itself as a successor-in-interest to the business for which the labor certification was approved.
Here, the Petitioner seeks to establish that its new parent company, is its successor- in-inter~st with respect to this petition. As proof that is a successor-in-interest, the Petitioner has submitted: (1) a copy of the "Unit Purchase Agreement" between and the Petitioner's prior parent company; and (2) a letter from vice president for finance, who states that his company, as part of its acquisition of the Petitioner, agreed to "support the Form 9089 filed on behalf of [the Beneficiary] and [take] on the immigration liabilities attached to the application." He further states that his company employs 110 persons in the United States and, based on his knowledge of its financial status, he can confirm its ability to pay the Beneficiary the proffered wage. The letter also confirms that the job opportunity being offered the Beneficiary by his company is the same as that stated in the labor certification and will be performed at the same location.
The preceding evidence does not demonstrate that is a successor-in-interest to the Petitioner. Such matters are adjudicated in accordance with Matter ofDial Auto Repair Shop. Inc., 19 I&N Dec. 481 (Comm'r 1986). Establishing a successor-in-interest relationship under Matter ofDial Auto is a three-part test. First, the successor must fully describe and document the transaction transferring ownership of all, or a relevant part of, the predecessor employer. Second, the successor must demonstrate that the job opportunity is the same as originally offered on the labor certification. Third, the petitioning successor must prove by a preponderance of the evidence that it is eligible for the immigrant visa in all respects. !d.
A successor-in-interest is generally created when one corporation is vested with the rights and obligations of an earlier corporation through amalgamation, consolidation, or other assumption of interests. Black's Law Dictionary 1569 (9th ed. 2009) (defining "successor in interest"). The merger or consolidation of a business organization into another will give rise to. a successor-in- interest relationship because the assets and obligations are transferred by operation of law.
In the present case, however, the evidence in the record shows that the Petitioner was purchased by but was not merged or consolidated into its new parent company. Instead, the evidence in the record shows that the Petitioner is a subsidiary of and continues to p. 3 operate as a distinct business entity. Therefore, the Petitioner did not establish that IS As is not the Petitioner's successor-m-mterest, it may not rely on the labor certification filed by the Petitioner to employ the Beneficiary in the offered position.
B. Ability to Pay
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
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 the present case, the proffered wage is $211,994 per year and the priority date is April 23, 2015. Therefore, the Petitioner must establish its ability to pay the Beneficiary an annual salary of $211,994 from April23, 2015, onward.
On appeal, the Petitioner contends that, as a disregarded entity for tax purposes in 2015, its ability to pay the proffered wage in that year may be established by its former parent company's Form 1065, U.S. Return o f Partnership Income, and the $240,282 in cash reflected as a current asset in Schedule L o f the 2 return.
In 2015, the Petitioner was a wholly-owned subsidiary of disregarded from its owner for U.S. federal income tax purposes, with its annual income and expenses accounted for in tax returns. Its submission of 2015 tax return, therefore, satisfies the documentary requirements at 8 C.F.R. § 204.5(g)(2), and we will consider it in determining the Petitioner's ability to pay. The Petitioner also provided the Beneficiary's Form W-2, Wage and Tax Statement, for 2015, reflecting wages of While we note the Petitioner's assertion that the Director erred in requiring a new filing fee with its submission of the amended Form 1-140, this issue is mooted by the absence of a successor-in-interest relationship between the Petitioner and 2
At the time it filed the visa petition, the Petitioner submitted copies of consolidated income and cash fiow statements, and a consolidated balance sheet for the period ending December 31, 2015, none of which were accompanied by an accountant's report. In that these reports are not audited, they do not meet the requirements of 8 C.F.R. § 204.5(g)(2): Unaudited financial statements are the representations of management and may not be relied upon to demonstrate a petitioner's ability to pay. We also note that the Petitioner does not reference these statements on appeal as proof of its ability to pay. 3
Although the Form W-2 refiects as the Beneficiary's employer, the Petitioner's bank statements and a letter from chief financial officer indicate that the funds used to pay the Beneficiary's wages came from the Petitioner. a successor-in-interest.
$108,000.08. As a result, it may establish its ability to pay if 2015 Form 1065 reflects that it had sufficient net income or net current assets to cover the $103,993.92 difference between the Beneficiary's proffered and actual wages.
To determine a petitioner's ability to pay the proffered wage, USCIS first examines whether a petitioner was employing the beneficiary as of the date on which the labor certification was accepted for processing by DOL and whether it continues to do so. If the petitioner documents that it has employed the beneficiary at a salary equal to or greater than the proffered wage, that evidence may be considered proof of the petitioner's ability to pay pursuant to 8 C.P.R. § 204.5(g)(2). If the petitioner does not demonstrate that it employed and paid the beneficiary at an amount at least equal to the proffered wage during the required period, USCIS then examines the net income figure reflected on the petitioner's federal income tax returns, without consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. Nov. 4 If the petitioner's net income during the required time period does not equal or exceed the proffered wage or if when added to any wages paid to the beneficiary, does not equal or exceed the proffered wage, USCIS reviews the petitioner's net current assets.
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay the proffered wage during the required period, USCIS may also consider the overall magnitude of its business activities. Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). In assessing the totality of the petitioner's circumstances, USCIS may look at such factors as the number of years it has been in business, its record of growth, the number of individuals it employs, abnormal business expenditures or losses, its reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence it deems relevant.
In the present case, the Petitioner paid the Beneficiary $1 03,993.92 less than the proffered wage in 2015 and its parent company's 2015 tax return does not reflect net income or net current assets sufficient to cover that shortfall, reflecting net income of $76,083 and -$287,466 in net current assets. Although the Petitioner asserts that the $240,282 in cash reported as a current asset in Schedule L of the 2015 tax return should be viewed as proof of its ability to cover the proffered wage, we will not consider current assets independently of current liabilities. Therefore, the record does not establish the Petitioner's ability to pay the Beneficiary the proffered wage in 2015 based on tax return.
With regard to the Petitioner's ability to pay the proffered wage in 2016, the record contains a letter from the Petitioner's chief executive officer, who states that the Beneficiary's base salary, as of June Reliance on federal income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. V. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang. v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th Cir. 1983).
10, 2011).
In support of this claim, the record contains May and June 2016 1, 2016, was $140,000, plus bonus.
· earnings statements for the Beneficiary, which reflect wages of $19,848.39 and a $100,000 bonus. However, the Beneficiary's wage statements for two months are not sufficient proof that he was paid a base salary of $140,000 in 2016, and the record contains no letter of employment or any employment contract for 2016 that would establish this level of pay. Accordingly, the record also does not establish the Petitioner's ability to pay in 2016.
The Petitioner also contends on appeal that it has established its ability to pay with the submission of alternate evidence, specifically its bank statements, and that the surplus funds reflected in these statements were derived from its business income, not a line of credit as indicated by the Director.
We note that the record contains a letter from chief financial officer, which states that he finds the Petitioner's bank statements to reflect that the Petitioner has "consistently maintained a large monthly balance after all expenses," and that, during 2015, this surplus in its cash flow was available to pay the difference between the Beneficiary's wages of $108,000.08 and the proffered wage. The previously noted letter from the Petitioner's CEO also points to his company's bank statements as proof of the surplus funds available to pay the difference between the Beneficiary's annual salary and the proffered wage. His letter is accompanied by a listing of these monthly surpluses and corresponding bank statements covering the periods February 28, 2015, through August 31, 2015, and September 1, 2015, through May 31, 2016.
We find the Petitioner's reliance on the surpluses reflected in its bank account statements as proof of its ability to pay to be misplaced. Bank statements reflect the amount in an account on a given date, not a sustained ability to pay a proffered wage. Therefore, the Petitioner's assertion that .jts ability to pay may be established solely on the surplus funds reflected in its monthly bank statements is not persuasive.
Although not raised by the Petitioner on appeal, we have considered its ability to pay the proffered wage under the totality of circumstances analysis established by Matter ofSonegawa, 12 I&N Dec. at 612. In Sonegawa, the petitioning entity had been in business for over 11 years but had changed locations in the year it filed the visa petition, resulting in unusual expenses and a temporary inability to conduct regular business operations. Nevertheless, the former U.S. Immigration and Naturalization Service (now USCIS) approved the visa petition, determining that the totality of the petitioner's circumstances established its-ability to pay the proffered wage. That determination was, in part, based on the Petitioner's history of successful business operations and its outstanding reputation within its industry.
We note that the DOL regulation at 20 C.F.R. § 656.1O(c) requires an employer to certify to certain conditions of employment listed in Section N of the labor certification, including the following: "The wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a prevailing wage paid on a weekly, bi-weekly or monthly basis that equals or exceeds the prevailing wage." 20 C.F.R. § 656.10(c)(2). ' p. 6 In considering whether the record establishes the Petitioner's ability to pay based on evidence that falls outside its net income and net current assets, we have reviewed the letter signed by the Petitioner's CEO, who describes his company as a start-up, which began operations in 2011 and has been "especially successful" in 2015 and 2016. This success, he asserts, results from its extension of its licensing agreements, which will continue to generate strong revenues in the years ahead, and its signing of new clients, which are resulting in significant monthly revenues that are already exceeding projections. The Petitioner's CEO also reports that his company's payroll exceeds $200,000 per month and points to its payment of the previously noted $100,000 bonus to the Beneficiary in June 2016 as proof of its continued growth and financial strength. He further predicts that his company will continue to run 100 percent ahead of its operating budget in 2016 and beyond,· and that its acquisition by will result in further growth.
In support of these claims, the record contains copies of two 2016 business contracts, one an extension ofan existing licensing agreement and the other a new business agreement, effective as of June 20, 2016; several invoices issued by the Petitioner during April-June 2016; a spreadsheet reflecting the Petitioner's 2015 revenue and its income projections for 2016; copies of a consolidated income statement, which reflects the Petitioner's revenue and net income for FY 2014 and FY 2015; a consolidated balance sheet, reflecting its assets and liabilities for these same years; a consolidated cash flow statement for the months ending December 31, 2015; and a copy of a Federal Form 941 Information that reflects the Petitioner paid wages in the amount of $263,605.16 during the first quarter of 2016. The Petitioner ,also identified a webpage that indicates it has received awards for fraud detection, compliance, and innovation from the However, although the Petitioner's receipt of several awards reflects that it, like the employer in Sonegawa, is well-regarded within its industry, the financial evidence just noted does not demonstrate that it also has a similar history of sustained financial growth. Unlike the employer in Sonegawa, which had been an established business for more than 11 years at the time it filed the 6 visa petition, the Petitioner has only been in business since 2011. found in the record has been submitted to establish the Petitioner's ability to pay in 2015 and 2016, rather than to document sustained growth in its operations over several years. As a result, we do not find the record to contain sufficient evidence to conclude that the totality of the Petitioner's circumstances establish its ability to pay the proffered wage.
For all the reasons just discussed, the Petitioner has not established its ability to pay the Beneficiary the proffered wage and we will affirm the Director's denial ofthe visa petition on this basis.
C. BeneficiaryExperience
Although not addressed by the Director in his decision, we also find that the record does not contain sufficient evidence to establish that the Beneficiary has the 60 months of qualifying experience The record contains a copy of a certificate signed by the Delaware Secretary of State that reflects the Petitioner was founded as but changed its name to on February 27,2014. ·
Further, the financial evidence p. 7 required by the labor certification and for classification as an advanced degree professional under section 203(b)(2) ofthe Act. In Section K of the labor certification, the Beneficiary lists the following employment experience, which totals 5 years, 3 months and 5 days:
- Vice president, product, present (date of labor certification's filing);
- Director, product development, 15,2014;and
- Operations and Reporting Analyst, 2010, to December 31,2012. full-time from January 18, 2014, to the full-time, from January 1, 2013, to January full-time, from January 15,
To establish a beneficiary's work experience in employment-based immigration proceedings, the regulation at 8 C.F.R. § 204.5(g)(l) requires that:
[E]vidence 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 of the writer, and a specific description of the duties performed by the alien or of the training received. If such evidence is unavailable, other documentation relating to the alien's experience or training will be considered.
To establish that the Beneficiary has the 60 months of qualifying experience he claims on the labor certification, the Petitioner has submitted a letter from director of human resources, who indicates that, beginning in January 2010, the Beneficiary held various positions with what she describes as the group of companies, explaining that previously acquired the assets of the , formerly known as and now as She lists the duties performed by the Beneficiary as an operations and reporting analyst, a director of product development, and a vice president for product.
This letter does not, however, satisfy the requirements at 8 C.F.R. § 204.5(g)(l). While the record contains 2014 Form 1120, U.S. Corporation Income Tax Return, which reflects that it was previously named no evidence establishes as the predecessor of HR director is not established as an and, therefore, does not demonstrate the as an operations and reporting analyst during the period January 15, 2010, through December 31, 2012. In any future proceedings, the Petitioner must resolve this issue in order to establish that the Beneficiary has the 60 months of experience required by the labor certification and for classification as an advanced degree professional under section 203(b)(2) ofthe Act.
Accordingly, the letter submitted by experience letter from Beneficiary's employment with
Conclusion
The Petitioner did not establish that is its successor-in-interest. The Petitioner also did not establish its continuing ability to pay the Beneficiary's proffered wage from the priority date. Finally, the Petitioner did not establish that the Beneficiary possessed the 60 months of experience required by the terms of the labor certification and for classification as an advanced degree professional.
ORDER: The appeal is dismissed.
Cite as Matter ofF-, LLC, ID# 388121 (AAO July 17, 2017)