U.S. Depart~ent of Homeland Security
U.S. Citizen~~ip and Immigration Services
Administrative Appeals Office (AAO)
DATENAR 2 5 2013 Office: TEXAS SERVICE CENTER
INRE: Petitioner:
Benefi~iary :
20 Massachusetts Ave., N,W., MS 2090
Washineton. DC 20529-2090
·u.s. Citizenship and Immigration
Services
FILE:
PETITION: Immigrant Petition for ~ien Worker as a Member of the Professions Holding an Advanced 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 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 yqu 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 r~quirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile 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.
Thank you, (
Qf/0
Ron Rosenberg
Acting Chief, Administrative Appeals Office www .uscis.gov
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(b)(6)Page2
DISCUSSION: The preference visa petition 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 church. It seeks to employ the beneficiary permanently in the United States as an assistant pastor. As required by statute, the petition is accompanied by an 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 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 January 26, 2011 denial, the 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 equivalent degree above the baccalaureate level. 8 C.P.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. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States." The regulation at 8 C.P.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered."
The regulation at 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 p. 3 t~ ... 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 labor certificate 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 September 24, 2009. The proffered wage as stated on the ETA Form 9089 is $13.36 per hour based upon a forty hour work week ($27,778.80 per year). The ETA Form 9089 states that the position requires a master's degree in divinity and 24 months of experience as an assistant pastor.
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 record of proceeding shows that the petitioner is structured as a tax-exempt organization under Section 501(c)(3) of -·the Internal Revenue Code. On the petition, the petitioner Claimed to have been established in 1987 and to currently employ five workers. On the ETA Form 9089, the beneficiary did not claim to have worked for the petitioner.
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 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.P.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 ofthe 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 1 The submission of additi~nal evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(1).
Page 4 . 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.
If, as in this case, the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage throughout the designated period, then 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 (1st Cir. 2009): Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'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. l982), aff'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitione~'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 relied on the petitioner's net income figme, 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 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 p. 5 PageS 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 proffered wage is $27,788.80. The petitioner submitted audited financial statements in support of its ability to pay the proffered wage in 2009. The petitioner submitted financial statements for 2008 which are dated prior to the priority date. Although the director, in denying the petition, took into consideration the petitioner's financial documents pertaining to 2008, this evidence was prior to the priority date; and therefore, the director's decision with respect to such evidence is withdrawn except when considered in the context of the totality of the circumstances. In response to the AAO's Request for Evidence (RFE) dated September 24, 2012, counsel submitted the petitioner's compiled financial statements for .2010. The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those financial statements must be audited. An audit is conducted in accordance with generally accepted auditing standards to obtain a reasonable assurance that the financial statements of the business are free of material misstatements. The unaudited financial statements that counsel submitt.ed with the petition are not persuasive evidence. The accountant's report that accompanied those financial statements makes clear that they were produced pursuant to a compilation rather than an audit. As the accountant's report ,also makes clear, financial statements produced pursuant to a compilation are the representations of management compiled into standard fo~. The unsupported representations of management are not reliable evidence and are insuffi~ient to demonstrate the ability to pay the proffered wage.Claims not backed by documents The petitioner submitted audited financial statements in support of its ability to pay the proffered wage in 2009 and 2011. The proffered wage is $27,788.80. The petitioner's audited financial statements demonstrate its net excess as shown in the table below.2
- In 2009, the audited financial statement stated an excess of $10,193.00.
- In 2011, the audited financial statement stated an excess of $28,467.00.
The petitioner's net revenue is not sufficient to pay the proffered wage in 2009; Although the net revenue amount for 2011 exceeds the proffered wage amount, USCIS electronic records indicate that the petitioner has filed multiple immigrant petitions since it was established in 1987. Consequently, USCIS must also take into account the petitioner's ability to pay the beneficiary's wages in the context of its overall recruitment efforts. Presumably, the petitioner has filed and obtained approval of the labor certifications. pn the representation that it requires all of these workers and intends to employ them upon approval of the petitions. Therefore, it is incumbent 2 In this matter, the petitioner's net income is reflected on the audited financial statements as total operating expenses subtracted from the total receipts. p. 6 upon the petitioner to demonstrate that it has the ability to pay the wages of all of the individuals it is seeking to employ. If we examine only the salary requirements relating to the 1-140 petitions, the petitioner would need to establish that it has the ability to pay combined salaries of the beneficiaries.
Therefore, the· petitioner must produce evidence that its job offers to each beneficiary are realistic, and therefore that it has · the ability to pay the proffered wages to each of the beneficiaries o:fits 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 7-50B job offer, the predecessor to the Form ETA 750 and ETA Form 9089). See also 8 C.F.R. § 204.5(g)(2). In this matter, the record is not persuasive in establishing that the petitioner could have paid the full proffered wage to each of its sponsored beneficiaries. For example, in '2011, the petitioner is required to have been able to pay the beneficiary the full proffered wage of $27,788.80; However, there were three other petitions pending at the same time The annual proffered wages were $45,906, $33,000, and $26,665; however, in 2011 the petitioner only paid these beneficiaries $34,429, $15,600, and $25,000, leaving a $30,000 shortfall. The petitioner could not have paid the beneficiary the full proffered wage in 2011, and paid the other 3 beneficiaries the differences between the wages paid and the proffered wages, from its 2011 receipts minus expenses. Furthermore, the petitioner's 2009 and 2011 audited financial statements show current assets of $27,131 and $59,791 respectively. The availability of these sums, however, is called into question for two reasons. First, a majority of these current assets are characterized by the auditor as "retirement savings." The AAO specifically asked for an explanation of this characterization in its September 24, 2012 Request for Evidence (RFE). In response, the petitioner claims that these sums represent money it sets aSide for its pastor's retifement. Nevertheless, the petitioner also claims these funds represent current assets which are available to pay the beneficiary (and, presumably, the other beneficiaries) the proffered wage(s). This claim, however, is not substantiated by any evidence that these funds are truly available and that the pastor would, or could, agree to make these sums available. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). To contrary, it appears more likely that these funds would not be available to pay the wages of other employees and should, instead, be considered sums already paid to someone else, i.e., the pastor. Second, the audited financial statements do not list any current liabilities even though the· petitioner was asked by the AAO to specifically disclose such obligations. The only obligation disclosed was its month mortgage obligation of $7,543.40. Even considering this one recurring expense, it appears that the petitioner would not have had net current assets sufficient to pay both the beneficiary's wage and the wages of the other Form 1-140 beneficiaries.
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 p. 7 proffered wage as of the priority date through an examination of wages paid to the beneficiary, or its net current assets.
On appeal, counsel asserts that the director failed to consider all of the facts and evidence in the case in order to obtain an accurate account of the petitioner's financial- ability to pay the proffered wage.
On appeal, counsel asserts that the beneficiary received a scholarship from the petitioner on September 1, 2009 and that this amount ($6,900.00), when added to the net current asset amount in 2009, assists in meeting the total proffered wage for that year. The petitioner submitted a copy of a Certificate of Scholarship issued to the beneficiary by the _ _ 1 on September 1, 2009, in the amount of $6,900.00.- However, as this sum does not appear to represent wages paid to the beneficiary, it will not be considered here.
The beneficiary did not indicate that he was employed by the petitioner on the ETA Form 9089 nor did the petitioner provide evidence of tis employing the beneficiary in 2009 ..
The evidence presented on appeal cannot be concluded to outweigh the evidence of record 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.
In response to the AAO's RFE, the petitioner submitted copies of its savings account and checking account statements. Counsel's reliance on the balances in the petitioner's 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 specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise paints ~n inaccurate financial picture of the petitioner. Second, bank statements show t,he amount in an account 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 financial statements.
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 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 animal 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 p. 8 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 beneficiary 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.
In this matter, the totality of the circumstances does not establish that the petitioner had or has the ability to pay the proffered wage since the priority date. There are no facts paralleling those found in Sonegawa that are present in the instant matter to a degree sufficient to establish that the petitioner had the ability to pay the proffered wage. The petitioner has not demonstrated the occurrence of any uncharacteristic business expenditures or losses in the relevant year. Overall, the record is not persuasive in establishing that the job offer was realistic. Finally, the presence of a number of simultaneously pending Forms 1-140 and the fact that these beneficiaries were not paid the full proffered wages in 2011 further undermines th~ claim that the job offer to the beneficiary was realistic.
Beyond the decision of the director, the petitioner has also no{ established that the beneficiary is qualified for the offered position. The petitioner must establish that the beneficiary possessed all the education, training, and experience specified on the labor certification as of the priority date.
of hours the beneficiary worked each week or the particular duties performed by the beneficiary as listed on the ETA Form 9089. See 8 C.F.R. § 204.5(l)(3)(ii)(A).
The evidence in the record does not establish that the beneficiary possessed the required experience set forth on the labor certification by the priority date. Therefore, the petitioner has also failed to establish that the beneficiary is qualified for the offered position.
Accordingly, 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.