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 mul)t 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.
Ron Rosenberg
Acting Chief, Admini~trative Appeals Office
~;uscis~gov
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and J is now before the Administrative Appeals Office {AAO) on appeal. The appeal will be dismissed. The petitioner is a softWare consulting company. It seeks to employ the beneficiary permanently in the United States as a software engineer. As required by statute, the petition is accompanied by an E\['A 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 shows 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 July 14, 2009 denial, the single 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 ~quivalent 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. ~ a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.
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 theJirne 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.
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 July 22,2007. The proffered wage as stated on the ETA Form 90.89 is $70,000 per year.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 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 ·
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the petition, the petitioner claimed to have been established in 2000, to have a gross annual income of $2.2 million, and to currently employ 40 workers. According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the ETA Form 9089, signed by the beneficiary on August 14, 2007, the beneficiary claimed to have worked for the petitioner from January 2007 through the date that the ETA Form 9089 was signed.
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.F.R. § 204.5(g)(2). · In evaluating whether a job offer is realistic, United States Citizenship and Immigration 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 of Sonegawa, 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 beneficiary's Forms W-2 for 2007 through 2011 show compensation received from the petitioner as detailed in the table below:
Year
2011
Beneficiary's actual
Compensation
$90,648.68
Proffered wage
$70,000
Wage increase needed to pay the proffered wage
$0
2010
2009
2008
2007
$83,808.44
$83,820.20
$107,523
$67,295.50
$70,000
$70,000
$70,000
$70,0oo
$0
$0
$0
$2,704.50
Here, the petitioner has established that it paid the beneficiary the full proffered wage from 2008 to 2011. The petitioner has established that it paid the beneficiary ·wages less that the full proffered wage in 2007. Therefore, the petitioner must establish that it could have paid the difference between the wages actually paid to the beneficiary and the proffered wage in 2007.
If, as in this case, the petitioner has not established that it paid the beneficiary an amount at least equal to the proffered wage during the required period, USCIS will next examine the net income figure reflected on the petitioner's federal income tax return, without consideration of depreciation Qr other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 {1 Cir. 2009); Taco
Especial v. Napoliiano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), a.ff'd, No. 10-1517 (6th Cir. filed Nov. 10, 2011); 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~ lll. 1982), a.ff'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient.
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization Service, now USCIS, had properly relie~ on the petitioner's net incom-e figure, as stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the argument that USCIS should have considered income before expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses). With respect to depreciation, the court in River Street Donuts noted:
The AAO recognized that a depredation deduction is a systematic allocation of the cost of a tangible long-term asset and does not represent a specific cash expenditure during the year claimed. Furthermore, the AAO indicated that the allocation of the depreciation of a long-term asset could be spread out over the years or concentrated into a few depending on the. petitioner's choice of accounting and depreciation methods. Nonetheless, the AAO explained that depreciation represents an actual cost of doing business, which could represent either the diminution in value of buildings and equipment or the accumulation of funds necessary to replace perishable equipment and buildings. Accordingly, the ·, AAO stressed that even though amounts deducted for depreciation do not p. 5 P~ge5 represent current use of cash, neither does it represent amounts available to pay wages.
We find that the AAO has a rational explanation for its policy of not adding depreciation back to net income. Namely, that the amount sp~nt on a long term tangible asset is a "real" expense.
River Street Donuts at 118. "[USCIS] and judicial precedent support the use of tax returns and the net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these figures should be revised by the court by adding back depreciation is without support." Chi-Feng Chang at 537 (emphasis added).
The record contains the petitioner's 2007 through 2011 federal income tax returns.
The petitioner's tax returns show its 2007 net income as detailed in the table below.-~ Year Net Income
2007 $116,299
Net current assets are the difference
2007 $102,112
Here, while the petitioner's net income and net current assets each exceed the beneficiary's 2007 proffered wage, the petitioner has ftled dozens of simultaneously pending Forms 1-140 during the year of the priority date and in prior years. On March 2, 2012, the AAO sent a Request for Evidence (RFE) to the petitioner requesting evidence pertaining to these simultaneously pending petitions. In response to the AAO's RFE, counsel states that "this information is irrelevant to the issue at hand." Contrary to counsel's claim, this information is relevant to determining whether the job offer to the beneficiary was indeed realistic in 2007. In this case, the petitioner has filed Forms 1-140 for several other workers which have overlapping priority dates and which having been pending simultaneously. Therefore, the petitioner must produce evidence that its job offers to each beneficiary are realistic, and thus that it has the ability to pay the proffered wages to each of the beneficiaries of its pending petitions, as of the priority date of each petition and continuing until the beneficiary of each petition obtains lawful permanent residence. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977) (petitioner must establish ability to pay as of the date of the Form MA 7 SOB job offer, the predecessor to the Form ETA 750 and ETA Form 9089). See also 8 C.F.R. § 204.5(g)(2).
In response to the AAO's RFE, counsel submitted a list 45 Forms 1-140 which the petitioner has filed since 2005. This list also includes the proffered wages, actual wages paid, and priority dates. The petitioner also submitted 2007 Forms W-2 for these other beneficiaries. As the only year that the petitioner did not pay the full proffered wage to the beneficiary was in 2007, the AAO reviewed only those petitions having priority dates of 2007 or earlier. There are 22 such petitions, excluding the instant petition and a subsequent petition filed on the beneficiary's behalf. Of the subjects of those 22 petitions pendtnl! simultaneouslv with the instant oetition. 9 were oaid less than the proffered wa2e in 2007
The shortfall in salaries for these 9 beneficiaries was approximately $188,094, which is an amount which exceeds both the petitioner's 2007 net income and 2007 net current assets. Accordingly, the job offer to the beneficiary at the full proffered wage was not realistic in 2007 due to all of these competing salary obligations taken on by the petitioner through the filing of so many simultaneously pending immigrant petitions. Furthermore, it is noted that this analysis ignores the vast wage obligation the petitioner would also have had througli the filing of dozens of Forms 1-129 for H-1B workers. The presence of these other wage obligations further undermines the petitioner's claim that the instant job offer at the proffered wage was realistic in 2007.
Since the petitioner has not established that it had the continuing ability to pay the beneficiary the proffered wage as of the priority date through an examination of wages paid to the beneficiary, or its net income or net current assets, USCIS may consider the overall magnitude of the petitioner's business activities in its determination of the petitioner's ability to pa,y 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 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 benefic~ary 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. The AAO recognizes that the petitioner has been in business since 2000. Nevertheless, the evidence submitted does not reflect a pattern of significant growth or the occurrence of an uncharacteristic business expenditure or loss that would ~xplain its inability to pay the proffered wage from the priority date. In addition, no evidence has been presented to show that the petitioner has a sound and outstanding business reputation as in Sonegawa. Unlike Sonegawa, the petitioner has not submitted any evidence reflecting the company's reputation or historical growth since its inception in 2000. Nor has it included any evidence or detailed explanation of the corporation's milestone achievements. Finally, the presence of simultaneously pending immigrant and nonimmigrant petitions in light of the petitioner's modest business size calls into question its ability to pay the proffered wage to the beneficiary. As discussed above, the petitioner could not have paid all of its immigration wage obligations in 2007. The job offer does not appear realistic, evaluating the totality of the circunistances. Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage .
. The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden.
ORDER: The appeal is dismissed.