The Petitioner, a software development and education business, seeks to employ the Beneficiary as a senior programmer analyst. 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 resident status.
The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish that the Beneficiary held a master's degree in the fields of computer science or engineering as required by the labor certification or that the Petitioner had demonstrated its ability to pay the proffered wage. Thereafter, we dismissed the Petitioner's appeal, affirming the Director's findings regarding the Beneficiary's academic qualifications and the Petitioner's ability to pay.
The matter is again before us on a combined motion to reopen and motion to reconsider. The Petitioner asserts that we erred in finding that the Beneficiary's master's degree in computer applications from India was not the foreign equivalent of the master's degree in computer science or engineering required by the labor certification. The Petitioner also maintains that its ability to pay is established by the new evidence it is providing on motion. The Petitioner also submits copies of its appeal brief and supporting documentation, which were not contained in the record at the time of our 1 earlier decision.
Upon review ofthe record, we will deny both motions.
Regulatory Requirements for Motions
The requirements of a motion to reopen are located at 8 C.F.R. § 103.5(a)(2), and the requirements of a motion to reconsider are located at 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested immigration benefit.
In that the arguments raised in the appeal brief are renewed in the Petitioner's motion to reopen and motion to reconsider, they will not be addressed separately in this decision.
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). We interpret "new facts" to mean facts that are relevant to the issue(s) raised on motion and that have not been previously submitted in the proceeding, which includes the original petition. Reasserting previously stated facts or resubmitting previously provided evidence does not constitute "new facts."
A motion to reconsider must establish that our decision was based on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We do not consider new facts or evidence in a motion to reconsider.
A motion to reconsider must be supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy.
Beneficiary Qualifications
A petitioner must establish that a beneficiary satisfies all of the educational, training, and experience requirements of the offered position set forth on the labor certification by the priority date of the visa petition? 8 C.F.R. § 103.2(b)(l). See Matter ofWing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'! Comm'r 1971).
In this case, the labor certification requires the Beneficiary to hold a U.S. master's or foreign equivalent degree in computer science or engineering. The issue before us on motion, as on appeaL is whether the Beneficiary's master's degree in computer applications from the in India satisfies this requirement. We previously determined that it does not.
On motion, the Petitioner asserts that we erred in reaching this conclusion as we ignored evaluation of the Beneficiary's academic credentials in favor of information provided by the American Association of Collegiate Registrars and Officers' Electronic Database for Global Education (EDGE). EDGE information, the Petitioner maintains, is "not reliable, not accurate and not specific to the Beneficiary's degree," as it does not rely on expert data, but rather "the general public's solicited information." It further maintains that, unlike the credentials evaluation it has submitted for the record, EDGE otTers credentials advice regarding the educational system in India as a whole, making it of limited utility in assessing a specific academic degree and course of study. In support of this claim, the Petitioner submits a printout of online information on the growth in the number of Indian universities during the period 1950-2014, published by the Indian Ministry of Human Resource Development, Department of Higher Education. It points to this document as evidence ofthe generic nature of EDGE's credentials advice.
The priority date of a visa petition is the date on which the Petitioner filed the underlying labor certification with the U.S. Department of Labor.
The Petitioner further claims that, as we based our decision regarding the Beneficiary's degree on adverse information provided by EDGE, which is not available to the general public, we were obligated under 8 C.F.R. § 103.2(b)(16)(i) to inform it ofthis "potentially derogatory information" prior to dismissing the appeal.
First, the Petitioner was made aware of the derogatory information in EDGE in the Director's 3 decision and had an opportunity to rebut this information on appeal. dismissing the appeal was primarily based on our review of ofthe Beneficiary's degree.
In addition, our decision evaluationDegree not shown to be a U.S. advanced degree equivalent
Specifically, we did not accept the evaluator's conclusion that the Beneficiary degree was the foreign equivalent of a U.S. master's degree in computer science and applications. Our decision observed that the evaluator had not offered an analysis of the extent to which the curriculum outlined in the Beneficiary's transcripts would satisfy the requirements for a master's degree in computer science in the United States. We also noted that we were unaware of a computer science and applications degree program in the United States and that the evaluation did not identify any actual U.S. master's programs combining these two academic disciplines. We further informed the Petitioner that our review of the website had found its Department of Computer Science & Engineering to offer a two-year master of technology in computer science in addition to its three- year master of computer applications, and that the existence of these separate programs appeared to reflect that did not consider its computer applications degree to be a degree in the field of computer science.
Having found that the evaluation did not establish that the Beneficiary held the degree required by the labor certification, we noted the conflicting credentials advice provided by EDGE as further evidence that the Beneficiary's master's degree in computer applications was not a degree in computer science.
On motion, the Petitioner submits no evidence in response to the deficits we identified in the evaluation. Neither does it provide additional credentials evaluations in support of findings. Rather, as noted above, the Petitioner continues to question the reliability of the information provided by the EDGE database, submitting the previously referenced printout relating to the growth in the number of Indian universities between 1950 and 2014 as proof of the overly broad credentials advice provided by EDGE. We have, however, already addressed the Petitioner's assertions regarding the deficiencies of the EDGE database in our dismissal of the The Petitioner's assertion that we were required to comply with the requirements at 8 C.F.R. § 103.2(b)(l6)(i), prior to issuing our dismissal of the appeal reflects a misunderstanding of the "derogatory information" that must be provided to petitioners and applicants prior to USCIS denial ofa visa petition. The regulation does not require the credentials advice provided by EDGE to have been disclosed to the Petitioner prior to our dismissal of the appeal. The derogatory information referenced by the regulation refers to adverse information identified by USClS as a result of its review of relevant agency records or databases, or as a result of immigration-related investigations, not to information on degree equivalencies in the EDGE database. p. 4 appeal and do not find the submitted printout to offer evidence that requires further discussion of this issue. We consider EDGE to be a reliable, peer-reviewed source of information about foreign 4 credentials equivalencies.
Therefore, for the reasons discussed above, the Petitioner has not established that the Beneficiary's 5 degree is the foreign equivalent of a U.S. master's degree in computer science or engineering. The Petitioner has also not established that we erred in dismissing the appeal by disregarding the regulatory requirements at 8 C.F.R. § 103.2(b)(l6)(i). Accordingly, we will deny the Petitioner's motion to reconsider. The Petitioner also did not submit new facts on motion establishing the Beneficiary's claimed educational equivalency, so we will also deny the Petitioner's motion to reopen on this issue.
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.
To establish its ability to pay in this matter, the Petitioner must demonstrate not only its ability to pay the Beneficiary the proffered wage of $98,675, but also the proffered wages of any beneficiaries for whom it filed Form I-140 petitions that were approved or pending on or after the petition's June 4, 2014, priority date. See 8 C.F.R. § 204.5(g)(2); see also Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay multiple beneficiaries). a rational explanation for its reliance on information provided by AACRAO to support its decision. In Tiseo Group, Inc. v. Napolitano, 20I0 WL 3464314 (E.D.Mich. August 30, 20I0), the court found that we had properly weighed the evaluations submitted and the information obtained from EDGE. In Sunshine Rehab Services, Inc. v. USCJS, 20 I0 WL 3325442 (E.D.Mich. August 20, 2010), the court concluded that we were entitled to prefer the information in EDGE. 5 We note that since our dismissal of the appeal, EDGE now reflects the following ''Credential Author Notes" in its discussion of the degree of master of computer applications:
Because the Master of Computer Applications curriculum has an applied emphasis and leads to employment rather than further graduate level education, it is not comparable to a master's degree in computer science, which is more theoretically-based and allows progression to doctoral level study. The Master of Computer Applications is therefore comparable to a degree in computer applications, not computer science.
In Confluence lnt "/, Inc. v. Holder, 2009 WL 825793 (D.Minn. March 27, 2009), the court determined that we provided p. 5 On appeal, we found that the record did not establish the Petitioner's ability to pay the proffered wage as it did not accurately reflect the number of beneficiaries for whom the Petitioner had filed employment-based visa petitions. While the Petitioner maintained that it was required to establish its ability to pay to no more than six beneficiaries, we noted that USCIS databases reflected 22 individuals who were the beneficiaries ofForms I-140 filed by the Petitioner, had been approved as of the June 4, 2014, priority date, and had not yet obtained lawful permanent resident status. In the absence of evidence establishing the Petitioner's combined proffered wage obligation to these individuals, we concluded that an analysis of its ability to pay was not possible and, therefore, that it had not demonstrated its ability to pay the proffered wage from the June 4, 2014, priority date onward.
On motion, the Petitioner submits new evidence of its ability to pay, including its 2015 Form 1120, U.S. Corporation Income Tax Return; letters from its two officers, stating their willingness to use the compensation paid them in both 2014 and 2015 to cover their company's proffered wage obligations; a chart which, the Petitioner states, lists all the beneficiaries for whom it must establish its ability to pay as of2014; and copies ofthe Forms W-2, Wage and Tax Statements, issued to all beneficiaries employed by the Petitioner in both 2014 and 20 15.
The Petitioner claims that its officers were willing to forgo their entire compensation in 2014 and 6 Having reviewed the preceding documentation, specifically that provided by the Petitioner's chart listing the beneficiaries for whom it has filed Forms I-140 as of January 2014, we again conclude that the record does not contain the evidence necessary for an analysis of the Petitioner's ability to pay the beneficiary the proffered wage as well as the proffered wage of its other I-140 beneficiaries. The Petitioner's new chart lists those beneficiaries for whom it has filed Forms I-140 since January 2014, reflecting the names ofthese individuals, as well as their proffered and actual wages; the status of the petitions (i.e., whether approved, denied, pending or withdrawn); and whether they have adjusted status to that of a lawful permanent resident. However, as on appeal, we do not find the Petitioner's chart to reflect the actual number of beneficiaries for whom Forms I-140 were pending or approved as ofthe June 4, 2014, priority date of the current petition.
In its chart, the Petitioner lists the names of 12 individuals for whom it filed Forms I-140 that are reflected as having been withdrawn and 3 individuals for whom Forms I-140 were denied. However, USCIS databases reflect that only 2 of the 12 individuals identified by the Petitioner are the beneficiaries of withdrawn petitions 1 and . The records in 9 of these cases indicate that 7 had been approved as of the June 4, 2014, priority date, and that the 2 remaining cases were filed and approved in 2015. None of these beneficiaries has, as yet, adjusted Other than the statements from the officers, the record does not contain evidence establishing that the officers could afford to forgo their officer compensation from the Petitioner.
It further maintains that, pursuant to Matter q(Sonegawa, 12 I&N 2015 to pay the proffered wage.
Dec. 612 (BIA 1967), we should factor into our analysis the $60,000 it paid in 2014 to update its computer servers, a one-time expense that negatively affected its net income in that year. p. 6 status. The record for a tenth beneficiary indicates that, while his case was not approved, it remained pending throughout the relevant period, until it was administratively closed on January 10, 201 7. Accordingly, these 10 beneficiaries must be considered in determining the Petitioner's combined proffered wage obligation in 2014 and 2015, increasing it by $1,012,8324.20 in 2014 $1,210,184.20 7 in 2015.
Of the three denials listed on the Petitioner's chart, 8we find that one , filed by the Petitioner on May 16, 2015, was not denied until April 12, 2016, and, therefore, that the Petitioner must also include this beneficiary among those to whom it had a proffered wage obligation in 2015, raising its combined proffered wage obligation for that year by an additional $134,534.
We also note that the Petitioner's chart reflects only those beneficiaries for whom the Petitioner filed Forms I-140 as of January 2014. However, as discussed on appeal, the Petitioner is required to establish its ability to pay the proffered wages of all beneficiaries for whom it filed visa petitions that were pending or approved as of the June 4, 2014, priority date, including the beneficiaries of approved Form I-140 petitions filed in years prior to 2014 who have not yet acquired lawful permanent resident status. A review ofUSCIS databases finds that from 2007 through 2009, USCIS approved Forms I-140 filed by the Petitioner for at least 10 beneficiaries not listed on the Petitioner's chart as approved or "in process," two of whom and acquired lawful permanent residence only in 2015. Therefore, the Petitioner must also establish its ability to pay the proffered wages ofthese beneficiaries during the relevant period.
The record, however, contains no evidence of the proffered or actual wages (if any) of the 10 beneficiaries whose Forms I-140 were approved by USCIS during the period 2007-2009. Neither does it offer evidence ofthe wages paid to the 10 beneficiaries ofthe Forms I-140 that the Petitioner indicates it withdrew, or the beneficiary of the visa petition that was denied by USCIS in 2016. In the absence of such evidence, no meaningful analysis of the Petitioner's ability to pay is possible.
The new facts submitted by the Petitioner on motion do not establish its ability to pay the proffered wage from the June 4, 2014, priority date onward. For this reason, we will deny the Petitioner's motion to reopen. In addition, since the Petitioner did not establish that we incorrectly applied applicable law or policy to the evidence in the record of proceedings at the time of our decision, we will also deny its motion to reconsider on this issue.
These totals are based on the proffered wages listed for these beneficiaries on the Petitioner's chart. Receipt numbers for these petitions are: and
Conclusion
The Petitioner has not established that the Beneficiary possessed the degree required by the labor certification. The Petitioner has also not established its ability to pay the proffered wage to the Beneficiary and the other beneficiaries for whom it filed Form I-140 petitions that were pending or approved during the relevant period. Therefore, we will deny the combined motion to reopen and the motion to reconsider.
ORDER: The motion to reopen is denied.
FURTHER ORDER: The motion to reconsider is denied.
Cite as Matter ofU-S-S- Inc., ID# 327629 (AAO June 29, 2017)