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:
SELF-REPRESENTED
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. § 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.
Thank you,
Ron Rosenberg
Acting Chief, Administrative Appeals Office
DISCUSSION: The employment-based immigrant 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 seeks to classify the beneficiary pursuant to section 2o3(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), which 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.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. If a doctoral degree is customarily required by the specialty, the alien must have a United
States doctorate or a foreign equivalent degree." ld.
The director determined that the petitioner failed to demonstrate a continuing ability to pay the proffered wage beginning on the priority date. The director further determined that the petitioner failed to establish that it is conducting business at ------~-----------~ 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 December 7, 2011 denial, the first 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. ·
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 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.
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, Application for Permanent Employment Certification, 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 (A~. Reg. Comm. 1977).
Here, the ETA Form 9089 was accepted on July 16, 2008. The proffered wage as stated on the ETA Form 9089 is $53.68 per hour ($111,654.40 per year). The ETA Form .9089 states that the position requires a Master's degree.
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 an S corporation. On the petition, the petitioner claimed to have been established in 2001 and to currently employ 90 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 September 30, 2009, the beneficiary claimed to have worked for the petitioner since 2007. 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.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. In the instant case, the petitioner has not established that it paid the beneficiary the full proffered wage during any relevant timeframe including the period from the priority date of July 16, 2008 or subsequently. In 2008, the beneficiary was paid $106,780.96, and, in 2009, he was paid $88,074.70.
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 wi·ll 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 (1 Cir. 2009); Taco
Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), a.ffd, No. 10-1517 (6th Cir. filed Nov. 10, 2011). Reliance on federal income tax returns as a basis for determining a 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). p. 4 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), aff'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 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 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 find 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).
The record before the director closed on October 18, 2011 with the receipt by the director of the petitioner's submissions in response to the director's request for evidence. As of that date, the petitioner's 2011 federal income tax return was not yet due. Therefore, the petitioner's income tax return for 2010 is the most recent return available. The petitioner's tax returns demonstrate its net income for 2008, 2009, and 2010, as shown in the table below.
- In 2008, the Form 1120S stated net income 2 of $12,888.
- In 2009, the Form 1120S stated net income of $31,424.
- In 2010, the Form 1120S stated net income of $117,265.
While the net income covers the difference betw~en beneficiary's proffered wage and wages actually paid, the petitioner has at least twenty-two additional I-140 petitions pending or approved before USCIS. The petitioner has not demonstrated its ability to pay the proffered wage for each I-140 beneficiary from the priority date until the beneficiary obtains permanent residence. See 8 C.P.R. § 204.5(g)(2). The petitioner's net income cannot establish its ability to pay the proffered wage to the beneficiary and an additional twenty-two workers.
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may review the petitioner's net current assets.
Net current assets are the difference between the petitioner's current assets and current liabilities. 3 A corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are shown on lines 16 through 18. If the total of a corporation's end-of-year 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 using those net current ~sets. The petitioner's tax returns demonstrate its end-of-year net current assets for 2008, 2009, and 2010, as shown in the table below.
- In 2008, the Form 1120S stated net current assets of $1.8 million.
- ~ 2009, the Form 1120S stated net current assets of $2:2 million.
- In 2010, the Form 1120S stated net current assets of $4.8 million.
On appeal, the petitioner merely stated that USCIS has abused its discretionary powers and that it did no.t need to comply with the · director's request for evidence because it employs over one hundred employees.
Although the petitioner had significant net current assets in 2008; 2009, and 2010, the petitioner has filed for almost 2 dozen other beneficiaries. The petitioner must provide 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 of its pending petitions, as of the priority date of each petition and continuing until the beneficiary of each petition obtain lawful permanent residence, See 2Wbere an ·S corporation's income is exclusively from a trade or business, USCIS considers net irtcome to be the figure for ordinary income, shown on line 21 of page one of the petitioner's IRS Form 11208. However; where an S corporation has income, credits, deductions or other adjustments from sources other than a trade or business, they are reported on Schedule K. 3 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets" consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current liabilities" are obligatiOJ)S payable (in most cases) within one year, such accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. · ·
Matter ofGreat Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977) . . The petitioner has not demonstrated its ability to pay the proffered wage for each 1-140 beneficiary from the priority date until the beneficiary obtains permanent residence. See 8 C.P.R. § 204.5(g)(2). The regulation at 8 C.P.R. § 204.5(g)(2) states that the director may request additional evidence in appropriate cases. Although specificallv and clearlv reouested bv the director. the petitioner declined to provide copies of its lease for The director further requested a list of all petitions filed and the names of the beneficiaries. These documents could have established the petitioner's ability to pay the proffered wage and establish the work location of the job opportunity. This is in line with normal USCIS operating procedures when there is a question concerning the work location and a petitioner's ability to pay the proffered wage. The petitioner's failure to submit these documents cannot be excused. The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.P.R.§ 103.2(b)(14).
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 8 C.P.R. §§ 103.2(b )(8) and (12). As in the present matter, where a petitioner has been put on notice of a deficiency in the evidence ~d has been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal.Evidence submitted too late Specifically, the petitioner only offered evidence of concurrently filed Foirn I-140s and associated proffered wages for the first time on appeal. Additionally, the petitioner has never offered any .evidence of a lease for conducting business as requested by the director. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence. /d. Under the circumstances, the AAO need not, and does not, consider the sufficiency of the evidence submitted on appeal.
Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988), states:Inconsistencies in the record
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 explain or reconcile the conflicting accounts, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice.
Finally, the petitioner has maintained that it employs over 100 workers. However, the evidence provides inconsistent and ·conflicting claims to the number of employees. On May 10, 2010 the petitioner asserted to the DOL that it employed 50 workers; on June 10, 2010 the petitioner asserted to USCIS that it employed 90 workers; on October 14, 2011, the petitioner asserted to the director that it employed over 100 workers. On January 5, 2012 the petitioner asserted to the AAO that it employed over 100 workers. These assertions are inconsistent and conflict with evidence which purports that it only paid 93 employees in 2011. Thus, based on these inconsistencies and the absence of evidence that could have been provided to the director during the pendency of the form I -140, a shadow of doubt is cast of the authenticity of all evidence contained within the record. Thus p. 7 the petitioner has failed to establish its ability to pay the proffered wage. It is noted that USCIS may . accept a letter in leiu of other required evidence when an employer employs over 1 00 workers. 8 C.F.R. § 204.5 (g)(2). It is not required to do so.
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 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 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 the instant case, the petitioner has demonstrated that it had significant assets in each of the years in question. However, it refused to provide the director with evidence pertaining to simultaneously pending petitions and has provided inconsistent claims regarding the size of its workforce. This undermines the credibility of the evidence in the record. 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.
Next the petitioner certified under penalty of perjury to USCIS in the Form 1-140 that all work would be conducted at On October 5, 2011, the director requested a copy of the lease between the worksite owner and the petitioner. The ...... t1t1nn ... ,. h~~ never provided a copy of the lease for _ to the director or the AAO. Based on the petitioner's failure to.provide a copy of the lease, we find it more likely than not that the petitioner does not conduct business or have a legitimate worksite at ...., . _ The regulation at 8 C.F.R. § 204.5(c) provides that "[a]ny United States employer desiring and intending to employ an alien may file a petition for classification of the alien under ... section 203(b)(2) of the Act." In addition, the DOL regulation at 20 C.F .R. § 656.34 states:
Emplf?yer means a person, association, firm, or a corporation which currently has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ a full-time worker at a place within the United States or the authorized representative of such a person, association, firm, or corporation.
Further, a labor certification is only valid for the particular job opportunity stated on the application form. 20 C.P.R.§ 656.30(c). In this case, the petitioner has failed to establish the actual worksite at which the company would employ the beneficiary.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 l&N Dec. 774 (BIA 1988); Matter of SooHoo, 11 I&N Dec. 151 (BIA 1965).
The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.