Exceptional Ability Pursuant to Section 203(b)(2)(A) of the Imliiigtation aM Nationality Act, 8 u.s.c. § 1153(b)(2)(A) I .
ON BEHALF ()p PETITIONER:
INSTRUCTIONS:
Enclos.ed please find the deCision of the Administrative Appeals Office (AAO) in your case. This i.s a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAo' incorrectly applied current law or policy to yoQr case or if you seek to present new facts for consideratiOn, you may fil~ a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I~290S) within 33 days of the date of this decision. Please review .the Fotr.n, · l-2_90P instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements .. See also 8 C.F.R. § 103.5. Do not file a motion directly with theAAO.
Thank you,
/V~
Ron Rosenberg
Chief, Administrative Appeals Office www..uscis;gov
DISCUSSION: The. Director, Texas Service Center (director), denied the employment-based, immigrant visa petition. The matter is now before the Administrative Appeals Office (AAO} on appeal. After corisulta:tion with the U.S. Department of Labor (DOL), the director's decision will be withdrawn. The appeal will be remanded to the. director .for further action, consideration, and the . entry of a new decision in accordance with below.
The petitioner provides software development services. It seeks to permanently employ the beneficiary i.n the United States as a programmer analyst. The petitioner requests classification of the beneficiary as a member of t.he professions holding an advanced degree of an alien of exceptional (lbijity pursuant to section 203(b)(2)(A) of the lnlmigration a.nd Nationality Act (the Act), 8 U.S.C. § 1153(b)(2)(A). An ETA Form 9089, Application for Permanent Employment Certification (labor certification), whi'ch the DOL certified, accompanies the petition. The priority date of the petition, which is the date the DOL accepted the labor certification for processing, is August 4, 201l.See 8 C.F.R. § 204.5(d).
The director's decision denying the petition concludes that the petitioner failed to establish a bona fide job Offer and its intent to einplpy the beneficiary in the offered position. The director-also found that the petitioner fraudulently represented information to government officials. Accordingly, on July 2, 2012, the direc,::tor denied the petition.
The record shows that the appeal is properly filed and makes a specific allegation of error in law or fact. The procedural history in this case is documented by the record and ~ncorporated into the decision. Further elaboration of the procedural history will be made only as necessary.
The AAO conducts appellate review on a de novo basis. See Soltane v. Dep 't of Justice, 381 FJd 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted on appeal 1
The director's findings Stein from differing addresses of the petitioner on the labor certification and the petition. The labor certification states the petitioner's address in Massachusetts as the area of intended employment. ETA Forin 9089 Part H.1, regarding the proposed worksite, also states: ''Future Locations May Vary.'' In addition, ETA Form 9089 Part fL14, regarding $peda1 requirements, states that a worker in the offered position "[m]ust be willing to travel/relocate to anywhere in the US on short notice for extended periods oftime.'' ·
On t.be FoiTQ 1-140, Petition for Alien Worker, the petitioner states its address in Boston, Massachusetts. Form 1-140, Part 6.4., which asks for tbe address where the beneficiary will work if it differs from the petitioner's address; states: "Futu:re locations may vary."
On May 1, 2012, the director issued a Request for Evidence (RFE) to the petitioner. Citing online inform<~.tioll, the RFE asserted that the petitioner; s president lives in a house at the 1ddress stated on tbe labor certification. The RFE also asserted that two of the petitioner's three addresses oii its Website - including the address stated on the Fon:n 1-140- constituted ''virtual offices,'' which were work spaces, already Staffed and equipped, that the petitioner leased and used on an "as-needed'' basis. In the RFE, the director expressed doubt that the petitioner intended to elllploy a full-time programmer analyst at the addresses stated on the labor certification, the petition, and its website, and req~ested busin.ess, financial, tax, payroll, recruitment and immigration dOCUineiitation to demonstrate the petitioner's intent to employ the beneficiary in the offered position.
The petitioner timely responded to the RFE with more than 1,000 . pages of documentation. In an affidavit, its president acknowledged that he lived at the address, where he purpQrtedly worked from an office in his home. H.e stated that the offered position involves telecommuting and working at the si.tes of unlrnown, future clients across the United States. He asserted that the petitioner followed case law cmd POL guidance by both filing the labor certification and advertising the offered . position ip the area of his home office in He stated there was "no particular reason" the petitioner used its address on the Form 1-140. "For business and marketing purposes," he stated that the petitioner had "recently tried to route much of [its] correspOndence through the address," where the office purportedly has mail collection and telephone-answering services. The director found that the petitioner failed to provide all of the documentation requested in the RFE. Specifically, he fotifld that the petitioner's RFE response lacked: copies of its lease agreements for the virtual offices in evidence of re~lar business activity at its office; and telephone records for the phone number it listed on the Form 1-140. The director COAclucied tbat the petitioner failed to establish its intent to employ the beneficiary in the Offered position @d fraudu1ently represented information on the labor certification and in the petition. On appeal, the petitioner denies th!lt it misrepresented any information to the DOL or U.S. CitiZenship and lriitfiigtatioii Services (USCIS). It provides copies of its lease agreements for the offices in and and claims that it included copies of these agreements with its RFE response.2 The petitioner provides IiO evidence of its regular business activity at the office, reiterating that most of its employees work at client sites and not iii its offices. The petitioner also st!ltes that it mistakenly provjded telephone records for company phone numbers other than the number specified in the RFE. On appeal, the petitioner provides copies of monthly bills for the specified ntmiber from December 2010 through April2012. The petitioner's president also s~tes that he uses the specifieqphone number 2 The AAO found a copy of the lease agreement for the office in the petitioner's RFE res oilse, which appeared to be out-of-order · in the case file. The AAO did not find !l copy of the office agreement in the response, although the response included other information about the office. p. 4 as a "lcmdlin~" at his home 'office and does not consider it to be the company's primary business number.
A labor certification remains valid only for the particul1:1r job opportunity, the alien worker, and the area of intended employment stated on the ETA Form 9089.20 C.P.R. § 656.30(c)(2). The DOL defines tile term ''area of intended employment" as "the area within normal colllilJ.uting distance of the place (addre~s) of i.ntended employment.'' 20 C.F.R. § 656.3. If the proposed worlcsite is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical. Area (PMSA), tbe area of intended employment includes any place within the MSA or PMSA. /d.
If the offered position involves work at various sites across the U.S. tbat the employer cannot anticipate, the employer properly files the labor certification and properly recruits tor the position in the area of its beadquarters or main office. Matter of Amsol, Inc., 2008-INA .. 00112, 2009 WL 2869970 at * *7 -8 (BALCA Sep. 3, 2009) (citing Memorandum from Barbara Ann Farmer (Farmer memo), DOL.Emp't & Training Admin'r for Reg'l Mgtpt., to Reg'l Admin'rs, § 10 (May 16,1994); Matter of elJusiness Applications Solutions, Inc., 2005-INA-00087, 2006 WL 4519119 at **6-7 (BALCA Dec. 6, 2006). Employers should also State on their labor certification applications that the aliens will b~ working at ''various unanticipated locations throughout the U.S." Farmer memo at § 10.
PageS metropolitan area." The petitioner also submits copies of DOL online wage surveys showing that the prevailing wage for the offered position in was higher than the position's prevailing wage in .. where the beneficiary was working on a client site when the petitioner filed the labor certific~tion.
Petitions involving "virtual offices" qe_serve scrutiny. in eBusiness, the Board of Alien Labor Certification Appeals (BALCA) considered the case of~ New Jersey company that created a virtual of:fice in Deiaware to which it ·nominally assigned workers for labor certification purposes. e/JY,siness, 2006 WL 4579779 .at *7. The BALCA affirmed the denial of 10 ofthe company's labor certifications, noting that it had stated its New Jersey headquarters as its legal address and place of business on the H-1B work visa petitions of the labor certification beneficiaries. ld. at *2. Also, 36 of the 50 businesses on the client list that the compapy submitted to DOL were located in New Jersey, and none were in Delaware. /d. The BALCA stated that it suspected the employer created the Delaware office to avoid testing the relevant labor market for qualified U.S. workers and to reduce the processing times of its labor certification applications. /d. at *8. The BALCA stated that "[t]he fact that the 'new economy' frequently includes jobs without fixed work sites does not mandate that the Department of Labor accept a fictionalized location for a job offering as the basis for a labor certification application." /d.
Unli~e the employer In eBusiness, however, the inStant petitioner submits sufficient evidence that it did not establish a virtual office O\ltside the area of its headquarters for labor certification purposes. The petitioner provides evidence tbat the home office of its president in Massachusetts was its legal and pri.Iilaty business address. The petitioJ}er submits numerous business documents that state its address in including copies of: its 2011 corporate annual report; its 2010 and 2011 federal income tax returns; the beneficiary's H-1B visa petition, which it filed in June 2010; the lease agreemenJs for its offices, dated July 6, 2010 and November 29, 2011, respectively; telephone bills from December 2010 -through July 2012; and an April 2006 contract with the client that the beneficiary served in In addition, copies of the petitioner's annual federal unemployment tax returns, which also state its address in show that some of its employees worked in Massachusetts each year from 2008 through 2011.
Tbe record also contains documents that state the petitioner's address in including copies of: email messages {rom its president from March 2011 through June 2012; an amended client contract, dated May 1, 2011; and the beneficiary's pay stubs from October 2011 and May 2012. Most of these documents are more recent than the documents with the address and seem to confirm the statement Qf the petitioner's presiqent that the company has recently tried to funnel most of its correspondence to the office. ·
Whether the address constitutes the petitioner's headquarters or m.ain offi~e, however, does not appear to affect the validity of the labor certification. Copies of the petitioner's recf1litment materials show that it advertised the offered position in Sunday editions of The newspaper. largest newspaper and consistently ranks:aiJlong the nation's top 10 Su.nday newspapers in circtllation. See "About Us" · at -···r·" ---- ------.~-----cr~ ~------~ - -~ - - --· . -- ~. . .. • . (accessed Aug. 28, 2013). The p. 6 advertisements state that the position requires a willingness to travel and relocate. Therefore, even if the petitioner's address, rather than its address, was its legal and primary business address, the petitioner would have advertised the offered position in the relevant labor market. As discussed above, the DOL found that the {>etitioner did not gain a Wage advantage by stating as the area of intended employment? The AAO therefore finds that the petitioner di4 not establish its office solely for the labor certification or other immjgration purposes.
The record also shows that the petitioner's employees work at various client sites across the United . States. Copies of the petitioner's federal unemployment tax returns show that its employees, from 2008 through 2011, worked in Massachusetts, North Carolina, Arizon;:t, New Jersey, New York, Florid;:t, Tennessee and Illinois. The AAO therefore finds that the record deroopstrates that the petitioner could not anticipate the beneficiary's worksite and properly filed the labor certification from the area of its headquarters pursuant to case law and DOL guidance. The AAO also finds that the petitioner has established a bona fide job offer to the benefici;:try and its intent to employ the bepe(iciary in the offered position ·under the terms of the labor certification. 4 In his decision, the director stated that the petitioner ''submitted falsified documents iii order to obtain a benefit under [the Act] throt.J.gh fraud and misrepresentation of a material fact." The director's decision does not specify which documents were falsified or what material fact was misrepresented. the AAO does not find substantial evidence of any fct.lsified documents in the record or the misrepresentation of any material facts.
The AAO cannot find that the inconsistent addresses, which the DOL has stated do not affect the validity of the labor certification, constitute fraud or roisrepresentation of a material fact. The petitioner has established its locations and the legitimacy of it business operations. After careful review, the AAO finds that the record does not support a conclusion that the petitioner engaged in fraud or misrepresentation of a material fact.
The record, however, does not establish that the petition is immediately approvable. The petitioner has not established that the beneficiary possesses the qualifying experience for the offered position of programmer analyst.
The petitioner must establish that the beneficiary possessed all the e-ducation, training, and experience specified on the labor certification as of the petition's priority date. 8 C.P.R. §.§ 103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Corom'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor certification to determine the requirements 'for the offered position. USCIS may not ignore a term of the labor ce_rtification, nor Impose additional requirements. See Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1, 3 (1 Cir. 1981).
In the instant case, the labor certification states that the offered position requires a master's degree, or a foreign equivalent degree, in computer science, engineering, physics, math or a related field, plus 12 months of experience in the job offered or as an IT consultant, systems executive, software engineer, or lead developer. The labor certification also states that the petitioner will accept an alternate combination of a bachelor's degree and five years of employment experience to satisfy the requirements of the offered position.
The petitioner claims that the beneficiary qualifies for the offered position based on the alternate combination of a bachelor's degree and five years of employment experience. On the labor certificatjon, the beneficiary claims to qualify for the offered position based on his bachelor's degree in mechanical engineering followed by about 13 years of computer-rela!ed experience before the petition's priority date. The labor certification states that the beneficiary worked:
- About 24 months as a computer programmer/analyst for m India from July 20, 1998 to July 26, 2000;
- About 43 monthS as a senior systems executive/programmer for in India from July 31,2000 to March 4, 2004;
- About three months as an associate consultant/programmer for in India from M(lfch 8, 2004 to May 25, 2004;
- About 23 months as a senior analyst for in the United Atab Emirates from June 5, 2004 to April 30, 2006;
- About 16 months as a software engineer/programmer fOJ in the U.S. from August 1, 2006 to December 14, 2007;
- About 30 months as a lead developer/programmer analyst for m the U$. from December 19, 2007 to July 3, 2010; and
- About 13 months as a programmer analyst for the petitioner in the U.S. from July 4, 2010 until tl:!e filing of the labor certification on August 4, 2011.
The petitioner must support the be_neficiary's claimed qualifying experience with· letters from his p. 8 employers, giving their names, addresses, and titles, and descriptions of Ul~ beneficiary's experience. See 8 C.F.R. § 204.5(g)(1 ). The record contains letters from five previous employers of the beneficiary, including:
- A N(wember 8, 4011 letter signed by a purported divisional manager on · stationery, stating that the comp&ny employed the beneficiary from. July 31,2000 to Marcl15, 2004, most recently as a senior system executive. The letter also includes a brief description ofthe be:nefi.ciary's experience as a senior system executive.
- A November 7, 2011 letter signed by a purported senior vice president of stating that the company employed the beneficiary from March 8, 2004 to May 25, 2004; most recently as an aSSociate consultant. The letter also includes a brief description of the beneficiary's duties with the company. ·
- A May 2, 2006 letter signed by a purported vice president on stationery, Stating that the comp~ny employed the beneficiary from June 5, 2004 to April30, 2006, most recently as a senior analyst.
- A December 4, 2009 letter signed by a human resources represent&tive on stationery, stating that the comp&ny employed the beneficiary ftom June 14, 2006 to December 17, . 2007. The letter also includes a brief description of his job duties with the compap.y.
- A November 14, 2011 letter signed by a purported business partner on stationery, Stating that the company employed the beneficiary from Deeetnbet 17, 2007 to JtJly 6; 2010 and identifying his last position as lead developer analyst.
Although . the letters from . identify the projects on whiCh the be.nefici&ry
As USCIS has not afforded the petitioner an opportunity to address this isstJe, the petition will be remanded to the director for consideration of the foregoing.
Also, the petitioner has failed to establish its continuing ability to pay the beneficiary's proffered wage as of the petition's priority date. See 8 C.F.R. § 204.5(g)(2).
According to USCIS re(X)rds, ~he petitioner has filed at least 14 1-140 petitions for other beneficiaries si.nce 2002. The petitioner must estabHsb its continuing ability to pay the combined proffered wages of all b~m~ficiaries whose petitions were pending since the instant petition's priority date. See Matter of Gteat Wall, 16 I&N l)ec. 142, 144-145 (Acting Reg'l Comm'r 1977); 8 C.P.R.§ 204.5(g)(2). Although the petitioner responded to the director's request for evidence of the petitions it has filed since 2009, quota backlogs in employment-baSed preference categories might have caused petitions that it filed earlier to remain pending after the instant petition's priority date. The petitioner must therefore provide evidence of its pre-2009 petitions, as 'the record does not document-: their ptiqtity dates; proffered wages; tbe wages the petitioner paid to their beneficiaries; whether any of those petitions were withdrawn, revoked, or denied; and whether any of those beneficiaries obtained lawful permanent residence. :
As USCIS has not <J.fforded the petitioner an opportunity to submit evide11ce of i.ts earlier-filed petitions, the petition alSo will be remanded to the director for consideration Of this issue. p. 10 not approve it. Because the petition is not approvable and USCIS did not ~{ford the petitioner an opportunity to address the reasons, the petition is remanded to the director to allow the petitioner a reasonable opportunity to respond and for issuance of a new, detailed decision.