Degree 6r an Alien of Exceptional Ability Pursuant to Section 2Q3(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 must 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. § 10~.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 reconsi9er or reopen.
[DO·
Ron Rosenberg .
Acting Chief, Administrative Appeals Office
DISCUSSION: The preference visa petition and subsequent motion to reopen/reconsider was denied by the Director, Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed;
The petitioner is a gem grading, technology and related services company. It seeks to employ the . beneficiary permanently in the United States as a product development manager. As required by statute, the petition is accompanied by ETA 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. according} y.
. 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 .May 3, 2012 and August 10, 2012 denials, the prilnary issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence.
Section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153 (b)(~), 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.
The regulation 8 C.P.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 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 fiD.ancial 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.P.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 (Acting Reg'l Comm'r 1977). ·
Here, the ETA Form 9089 was accepted on December 1l, 2007. The proffered wage as stated on the ETA Form 9089 is $47.84 per hour ($99,507 per year). The ETA Form 9089 states that the position requires a master degree and one year of experience in an alternate occupation. · p. 3 The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 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 reoord of proceeding shows that the petitioner is structured as a C corporation. On the petition, the petitioner claimed to have been established in 1998, to have a gross annual income of $39,757, and to currently employ three workers. According to the tax returns in the record, the petitioner's fiscal year is a calendar year. On the ETA Form 9089, signed by the beneficiary on February 7, 2008, the beneficiary claimed to have worked for the petitioner from January 7, 2001 to October 7, 2002.
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition later based on the ETA Form 9089, the petitioner mll$t 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'l Comm'r 1977); see also 8 C.F.R. § 2045(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 Matt~r ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 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. In the instant case, the petitioner has not established that it employed and paid the beneficiary the full proffered wage from the priority date. -However, the r.ecord does contain Forms W-2 from a contracted customer of the petitioner's, indicating wages paid to the beneficiary in 2007, 2008, 2009, 2010, and 2011 for $62,604, $62,604, $62,684, $65,460, and $67,272 respectively. These wages will be considered in the analysis of the petitioner's federal income tax returns below since the record establishes that these funds actually originated with the petitioner. The p~titioner paid the beneficiary $4,318 directly in 2011._ . · If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage during that period, USCIS will next examine the net income figure reflected on the petitioner's federal income . tax return, without consideration of depreciation or other expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (151 Cir. 2009); Taco Especial v. 1 .The submission ,of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulation at 8 C.F.R. § 103.2(a)(l) .. The record in the instant case provides no. reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (JJIA 1988).
Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), ajf'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), ajf'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross sales and profits and wage expense . is misplaced. Showing that the petitioner's gross sales and profits 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 relied on the petitioner's net income 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 the Service 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 depreciation 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 represent current use of cash, neither does it represent amounts available to pay wages.
We fmd that the AAO has a rational explanation for its policy of not adding depreciation back to net income. Namely, that the amount spent 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).
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages paid to the beneficiary . during the period, if any, do not equal the amount of the proffered wage or more, USCIS will review the petitioner's net current assets. Net current assets are the p. 5 (b)(6)Page5 difference between the petitioner's current assets and current liabilities . 2 A corporation's year-end current assets are shown on Schedule L, lines 1 through 6 and include cash-on-hand. Its year-end current liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-yeai net current assets and the wages paid to the beneficiary (if any) are equal to or greater than the proffered wage, the petitioner is expected to be able to pay the proffered wage usirig those net current assets. For a
C corporation, USCIS considers net income to be the figure shown on Line 28 of the Form 1120, U.S. Corporation Income Tax Return. The record before the director closed on May 13, 2012 with the receipt by the director ofthe .petitioner's motion to reopen/reconsider. As of that date, the petitioner's 2012 federal income tax return was not yet due. Therefore, the petitioner's income tax return for2011 is the most recent return available. The petitioner's tax returns demonstrate its net income and net current assets for 2007 through 2011, as shown in the table below.
Tax Proffered Wages Net Total 1 · CA CL Totat2 Year Wage Paid Income · 2007 $99,507 $62,604 -$408,215 -$445,118 $282,507 -$302,217 -$56,613 2008 $99,507 $62,604 -$401,829 -$438,732 $316,482 -$304,820 -$25,241 2009 $99,507 $62,684 -$400,003 -$436,826 $349,565 -$304,504 $8.238 2010 $99,507 $65,460 -$467,179 -$501,226 $352,471 -$304,504 $13,920 2011 $99,507 $71,590 -$326,348 -$354,265 $392,184 . -$308,822 $55,445 Total 1 is the difference between proffered wage and net income; Total 2 is the difference between the proffered wage and CA plus CL (net current assets) .
In 2009, 2010, and 2011, the petitioner had sufficient net current assets to establish its ability to pay the proffered wage. However, for the years 2007 and 2008, the petitioner did not have sufficient net income or net current assets to pay the difference between the wages paid to the beneficiary and the proffered wage.
Therefore, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage in 2007 and 2008 through an examination of wages paid to the beneficiary, or its net income or net current assets.
Counsel requests that USCIS prorate the proffered wage for the portion of the year that occurred after the. priority date. We will not, however, consider 12 months of income towards an ability to pay a lesser period of the proffered wage any more than we would consider 24 months of income towards paying the annual proffered wage. While USCIS will ~rorate the proffered wage if the ---------------------.~ .
t. record contains evidence of net income or payment of the·beneficiary's wages specifically covering the portion of the year that occurred after the priority date (and only that period), such as monthly income statements or pay stubs, the petitioner has not submitted such evidence. · Counsel asserts that the director should have · considered the petitioner's bank accounts, lines of credit, numerous financial documents from other independent corporations, shareholder's assets, legal precedent, and a review of the petitioner's total circumstances in establishing its ability to pay the proffered wage. · ·
Counsel's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as submitted by the petitioner . that demonstrates that the petitioner could not pay the proffered wage from the day the ETA Form 9089 was accepted for processing by the DOL.
Counsel's reliance on the balances in the petitioner's and other corporations' bank accounts is misplaced. First, bank statements are not among the three types of evidence, enumerated in 8 C.F.R: § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases," the petitioner in this case has. not demonstrated why the documentation specifi~g at 8 C.P.R. § 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show the amount in an accou,nt on a given date, and cannot show the sustainable ability to pay a proffered wage. Third, no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow reflect additional available funds that were not reflected on Its tax return(s), such as the petitioner's taxable income (income minus deductions) or the cash specified on Schedule L that were p. 7 will increase the petitioner'sliabilities and will not improve ·its overall financial position. Although lines of credit and debt are an integral part of any business operation, USCIS must evaluate the overa,ll 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 of Great Wall, 16 I&N Dec. 142.
Because a corporation is a separate and distinct legal entity from its owners and shareholders, the assets of its shareholders or of other enterprises or corporations cannot be considered in determining the petitioning corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no legal obligation to pay the wage." Therefore, counsel's argument that the shareholder could have contributed additional capital is not persuasive.
Counsel is citing Ranchito Coletero, 2002-INA-104 (2004 BALCA), for the premise that entities in an agricultural business regularly fail to show profits and typically rely upon individual or family assets. Counsel does not state how the DOL's Board of Alien Labor Certification Appeals (BALCA) precedent is binding on the AAO. While 8 C.P.R. § 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administration of the Act, B~A decisions are ,not similarly binding. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.P.R.§ 103.9(a). Moreover, Ranchito Coletero deals with a sole proprietorship and is not directly applicable to the instant petition, which deals with a corporation. · On appeal, counsel argues that the petitioner's net current assets are actually higher than what was disclosed on the
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Moreover, given the claim that the petitioner has an inconsistent view of current and long term liabilities and assets, the · AAO has further scrutinized the petitioner'.s Statements 3 to its 2007 and 2008 Forms 1120. These statements further describe the petitioner's claimed "other current assets." According-to these statements, most of the petitiorier?s other current assets (approximately $150,000) for these years oonsist of obligations due to the petitioner from other business organizations~ Importantly, these obligations, despite being described as "current" assets, appear year after year and were not satisfied within one year. Therefore, it appears more likely than not that these "current" assets were not available to pay the proffered wage in 2007 and 2008. In view of petitioner's inconsistent characterization of its various assets and liabilities in its tax returns, it has not been established that the petitioner had sufficient net current assets to pay the proffered wage in 2007 or 2008. .Inconsistencies in the record
Matter of Ho, 19 I&N Dec. 582,591-592 (BIA 1988), states:
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a ·reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition ... [i]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. Attempts to explaiil or reconcile the conflicting accounts, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. '
The Administrative Appeals Office is never bound by a decision of a service center or distric~ director. See Louisiana Philharmonic Orchestra vs. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 2000), aff'd, 248 F. 3d 1139 (51h Cir. 2001);cert. denied, 122 S.Ct. 51 (2001).
USCIS may consider the overall magnitude of the petitioner's business activities in its determination of the petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612. The ·petitioning entity in Sonegawa had been in business for over 11 years and routinely eained 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. USC IS 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 beneficiary is p. 9 replac~g a former employee or an outsourced service, or any other evidence that USCIS deems. relevant to the petitio~er's ability to pay the proffered wag~.
In the instant case, the petitioner has been in business since 1989 and · claims to employ three workers. However, its federal income tax returns establish that.its revenue has been in declined and had a huge loss in 2010 without explanation. From 2007 to 2010, the petitioner did not compensate any of its officers and only. paid a total of $98,576 to three employees over five years of reported . salaries and wages. Additionally, the record is silent concerning the petitioner's reputation in its industry, occurrence of any uncha~acteristiC business expenditures or ·losses, historical growth, or its replacement of a foriner employee or an outsoui-ced resource. 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. Therefore, the evidence submitted does not establi~h 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.