Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degt~e 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 (AAO) in yout case. Thjs is 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 hiw or policy to . . . J your case or if · you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form l-':?90a) within 33 days of the date of this decision. Please review the Form l-290:8 instructions at \ .. ... . http://www.uscis.gov/forf.lls for the I~test information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly witb. tbe MO .
. Thankyou,
Ron Rosenberg
Chief, Administrative Appeals Office
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The Administrative Appeals Office (AAO) s~bsequently dismissed the appeal, and dismissed the petitioner's rpotion to reopen and reconsider. The petitioner has filed a second motion to reopen and motion to reconsider. Tbe motions · will be dismissed, the previous decisions of the director ;md the AAO will be affirmed, and the petition will remain denied.
The petitioner is a physicians network firm. It seeks to employ the beneficiary permanently in the United States as a cHnicC:J,l director.1 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 dire.ctor determined th.~t the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date Of tbe visa petition.
On January 5, 2010, the director denied the petition. Following an examination .of the petitioner's finanCial information submitted, including its 2008 all(l ~009 corporate tax returns, the beneficiary's , compensation paid by the petitioner in 2008 and 2009, the petit.ioner's unaudited financial statements, ~d ·counsel's assertions that the petitioner's net curtent ·assets and net income should be considered in combination, the director found that neither the petitioner's net income -nor net current assets could cover the difference between the actual wages paid to the beneficiary and the full $124,800 proffered wage in either 2008 or 2009.
Tbe petitioner filed an appeal. On Part 2 of the Form I-290B, Notice of Appeal or Motion, the petitioner checked "B," indicating that a brief and/or additional evidence would be submitted to the AAO within30 days. On April 27, 2012, the AAO summarily dismissed the appeal, noting that no further documentation had been received to its office e~,nd that 8 C.P.R. §§ 103.3(a)(2)(vii) and (viii) require that any brief should be submitted directly to the AAO.
The petitioner filed a motion to reopen and a motion to reconsider the AAO's April 27, 201Z, _decision, asserting that the brief had been sent to the Nebraska· Service Center in an attempt to connect it with the file. On December.27, 2012, the AAO di_smissed the petitioner's motions. The AAO found that the petitioner, not the Service, was responsible for the petitioner's error in sending its brief to the wrong location. It noted that the regul~tion and the instructions for the Form I-290B provided that a brief and/or additional evidence could be submitted with tbe Forrn I-290B or could be s~nt directly to the AAO within 30 days of filing the appeal and that the AAO's address was provided in the instructions. The AAO additionally found that the petitioner had not presented a basis for its filing to be considered a motion to reopen. The AAO further determined that the petitioner's filing could not be approved as a motion to reconsider because it was not Service error 1The record reflects that the petitioner bas filed two other Immigrant Petitions for Alien Worker (Form I-140s) on behalf of the beneficiary. was filed seeking to classify the beneficiary as an outstanding researcher. The director denied it on January 4, 2010. was filed seeking to classify the beneficiary as a second preference, advanced degree professional, as in the instant case. It was denied on July 8, 2013 and a subsequent motion to . reopen and reconsider was dismissed on August 30, 2013.
PageJ wb_ic.h caused the misfiling and that reasons for reconsideration Were not supported by any pertinent precedent decisions tb.~t established that the AAO's April 27, 2012, dismissal was ba$ed on an incorrect application of law or [USCIS] policy.
Through counsel, the petitioner submitted another motion to reopen and a motion ,to reconsider the AAO's December 27, 2012, decision. The regulation at 8 C.F.R. § 103.5(&)(3) provides that a motion to n::consider must offer the reasons for reconsideration and be supported by pertin~pt leg<d authority showing that the decision was based on an incorrect application o( law or United States Citizenship apd Immigration Services (USCIS) policy. It must also demonstrate that the dedsion was incorrect based on the evidence contained in the record at the time of the initial decision. A motion to reopen must state the new facts to be submitted in the reopened proceeding and be supported by affidavits or other do·cw.nentary evidence. 8 C.P.R.§ 103.5(a)(2). · .
In this filing, cou:nsel states that the AAO erred in not considering the "totality of circumstances" in adjudicating the issue of the petitioner's ability to pay the proffered wage. Counsel submits copies of three older cases2 relating to the petitioner's ability to pay where the appe~ was sustained. Counsel's brief reiterates tbe argument made in the first motion relevant to the reason that the appell&te brief was not sent to the AAO. The rem~der of the brief addresses the petitioner's ability to pay the proffer~d wage.
Counsel's motion is only relevant to the AAO's December 27, 2012 decision in that it again addresses the re&son that· it failed to foilow the regulation, the instructions to Form I-490l;l, and its own designation on the Form I-290B that a brief and/or additional evidence should be sept directly to the AAO if it was not being sqbmitted with the Form I-290B. As these instructions ate clear, the AAQ again concludes that as it was not Service error responsible for the materials being selit to the wrong location, the AAO's dismissal of the appeal was entirely proper. Neither the AAO's decision of April 27, 2012 summarily dismissing the appeal; nor its decision of December 27, 2012 upholding this dismissal was incorrect. Counsel's instant motion does not establish that the AAO's decision was based ....... . . .. . . . . ,. . · . . . . . . - .... .. .. . I on an incorrect application of law or [USCIS] policy. The three precedent decisions provided with this motion ate not relevant and do not discuss facts based on a petitioner's error in failing to follow appellate procedure. Therefore, the motion filed herein does not qualify as a motion to reconsider. Nor does it qualify as a motion to reopen, as counsel bas not presented any new evidence consisting of affidavits or other documentary evidence, which would show that Service error was the reason that the petitioner failed to follow appellate procedute.3
20nly one case involves an appeal, which wa.s susta.ined based on a review of the "totality' of circumstances.'' Further, it is not a precedent decision. While 8 C.P.R. § 103.3(c) provides that precedent decisions of USCIS are binding on all its employees in the administr<oltiop of the Act, unpublished decisions are not similarly bipdmg. Precedent decisions must be designated and published in bound volumes or as interim decisions. 8 C.P.R.§ 103~9(a).
Motions for the reopening or reconsideration of immigration proeeedings are disfavored for the same reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence, See INS v. Doherty, 502 U.S, 314, 323 (1992)(citing 1NS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current motions, the movant has not met that burden. Based on the foregoing, the petitioner's motions do not qualify as ~ motion to reopen or a motion to reconsider and _will be dismissed.
The burden of proof in thes.e proceedings rests solely wi.th the petitioner. Section 291 of the Act, 8 u ·.s.C. § 1361. The petitioner has not met that burden~ 11P.Gb;J.racteristicaUy unprofitable or difficult years within a framework of profitable ot successful years. :Ouring t.he year in which the petition was filed, the Sonegawa petitioner changed business locations, and paid rent on both the old and new location_s for five months. There were large moving costs and a period of time when business could not be conducted. The Regional Commissioner determined that the prospects for a resumption of successful operations were · well established. Tbe Region;J.l Commissioner determined that the prospects for a resumption of successful operations were well established. He noted th~t the petjtioner was a well-known fashion designer who had been featured in Time and Look. Her clients included movie actresse.s, society matrons and Miss Universe. The petitioner had lectured on fashion design at design and fashion shows tbroughout the l}nited States and at colleges and universities iii California. · The Regional Commissioner's determin~tion in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a cout:uriere. ·
Here, the petitioner has not shown the ability to pay the proffered wage in either of the two t~ retuf11S submHted to the record. As noted. by the director, USCIS will consider separately, but not in combination, th,e taxable income and the net current assets of a business to determine the ability of a petitioner to pay the proffered wage on the priority date. Counsel's method would duplicate revenues received by the busin~ss. The petitioner's 2008 tax return showed that neither its net income of $3,885 nor its net cuttent aSsets (lines 1 through 6 of Schedule L of the tax return minus lines 16 through 18) of $31 ,606 could cover the $122,800 difference between the benefici;J.ry' s compensation of $2000 paid in that year by the petitioner and the proffered wage of $124,800, Similarly, in 2009, neither the petitioner's net income of $75;934 nor its net current assets of $53,852 could cover the $98,401.27 deficiency when comparing the beneficiary's ~ctual compensation of $26,398.73 paid that year ~nd the full proffered wage of $124,800. Moreover, in 2008, the proffered wage represented 96 percent of the total salaries and wages pa.fci by the pet.itioner and exceeded the petitioner's net income by $120,915. In 2009, the proffered wage represented 78 percent of the total salaries and wages paid and exceeded the petitioner's net income by $48,866. No unique ot other unusual factors analogous to those which prevailed in Sonegawa have been presented by the petitioner or are evident from the re.cotd. Thus, the petition does not merit approval pursuant to Matter of Sonegawa.
C\
NON-PRECEDENT DECISION
PageS
ORDER: The motiop to reopen and motion to reconsider is dismissed. The director's decision.. of . January 5, 2012, and the AAO's decisions ofApril27, 2012 and December 27, 2012 are affirmed. . . ' .