DATE: Office: TEXAS SERVICE CENTER
NOV 2 2 2013
INRE: Petitioner:
Beneficiary:
U.S. Department of Homeland Security
U.S. Citi zenship and Immigra tion Service!
Administr ative Appeals Offic e (AAO)
20 Massachusetts Ave., N.W., MS 2090
Washingt on, DC 20529-2090
U.S. Citizenship and Immigration
Services
FILE:
PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional pursuant to Section 203(b )(3) of the Immigration and Nationality Act, 8 U.S. C. § 1153(b )(3) ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This 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 law or policy to 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 I-290B) within 33 days of the date of this decision. Please review the Form I-290B 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 the AAO . Thank you,
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The petitioner appealed the director's decision to the Administrative Appeals Office (AAO). The AAO withdrew the director's decision and remanded the matter back to the director for consideration. The director issued a Request for Evidence (RFE) to the petitioner. The petitioner failed to respond to the RFE. The director entered a new decision and certified the matter, in a Notice of Certification, to the AAO for review. The matter is currently before the AAO for consideration. The director's decision will be affirmed.
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a cook. As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien Employment Certification, approved by the United States Department of Labor (DOL). In the Notice of Certification dated September 5, 2013, 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, and that the petitioner had failed to establish that the beneficiary had met the minimum education, training or experience requirements as of the priority date. The director denied the petition for these reasons and due to abandonment.
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 Notice of Certification dated September 5, 2013, the primary 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. A second issue to be addressed is whether the petitioner has established that the beneficiary meets the job experience requirements as required by the labor certification.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(3)(A)(i), provides for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years training or experience), not of a temporary nature, for which qualified workers are not available 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 financial statements.
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the Form ETA 750 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 Form ETA 750 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 Form ETA 750 was accepted on April 12, 2001. The proffered wage as stated on the Form ETA 750 is $11.87 per hour ($24,689.60 per year). The Form ETA 750 states that the position requires two years of experience in the job offered.
We note that the case involves the substitution of a beneficiary on the labor certification. Substitution of beneficiaries was permitted by the DOL at the time of filing this petition. DOL had published an interim final rule, which limited the validity of an approved labor certification to the specific alien named on the labor certification application. See 56 Fed. Reg. 54925, 54930 (October 23, 1991). The interim final rule eliminated the practice of substitution. On December 1, 1994, the U.S. District Court for the District of Columbia, acting under the mandate of the U.S. Court of Appeals for the District of Columbia in Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994), issued an order invalidating the portion of the interim final rule, which eliminated substitution of labor certification beneficiaries. The Kooritzky decision effectively led 20 C.F.R. §§ 656.30(c)(1) and (2) to read the same as the regulations had read before November 22, 1991, and allow the substitution of a beneficiary. Following the Kooritzky decision, DOL processed substitution requests pursuant to a May 4, 1995 DOL Field Memorandum , which reinstated procedures in existence prior to the implementation of the Immigration Act of 1990 (IMMACT 90). DOL delegated responsibility for substituting labor certification beneficiaries to U.S. Citizenship and Immigration Services (USCIS) based on a Memorandum of Understanding, which was recently rescinded. See 72 Fed. Reg. 27904 (May 17, 2007) (codified at 20 C.F.R. § 656). DOL's final rule became effective July 16, 2007, and prohibits the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. As the filing of the instant case predates the rule, substitution will be allowed for the present petition. The AAO conducts appellate review on a de novo basis. See Soltane v. DO.!, 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 C corporation. On the petition, the petitioner indicates that it was established on March 12, 1983 and that it currently employs 30 workers. According to the tax returns in the record, the petitioner's fiscal year is from March 1 to February 28. On the Form ETA 750, signed by the beneficiary on July 11, 2007, the beneficiary did not claim to have been employed by the petitioner.
The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations at 8 C.P.R. § 103.2(a)(1).
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a Form ETA 750 establishes a priority date for any immigrant petition later based on the Form ETA 750, 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 of the circumstances affecting the petitioning business will be considered if the evidence warr ants 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 did not provide any evidence to show that it paid wages to the beneficiary.
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 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 (1 Cir.
2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (61h 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. Ill. 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 p. 5 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 d educted 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 incqme. Namely, that the amount spent on a long term tangible asset is a "real" expense .
River Street Donut s 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).
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 petitioner's federal income tax return for the fiscal year 2006 is the most recent tax return available for review.2 The proffered wage is $24,689.00 per year. The petitioner's tax returns demonstrate its net income as shown in the table below.
- In 2001 (March 1, 2001 to February 28, 2002), the Form 1120 stated net income of $34,909.00.
- In 2002 (March 1, 2002 to February 28, 2003), the Form 1120 stated net income of $42,630.00.
- In 2003 (March 1, 2003 to February 28, 2004), the Form 1120 stated net income of $42,946.00.
- In 2004 (March 1, 2004 to February 28, 2005), the Form 1120 stated net income of $50,307.00.
- In 2005 (March 1, 2005 to February 28, 2006), the Form 1120 stated net income of $32,493.00.
- In 2006 (March 1, 2006 to February 28, 2007), the Form 1120 stated net income of $50,081.00.
Although the net income amounts exceed the proffered wage amount in 2001, 2002 , 2003, 2004, 2005, and 2006, as noted by the director in the RFE to the petitioner dated December 27, 2012 and in the Notice of Certification, USCIS electronic records indicate that the petitioner has filed multiple immigrant petitions since the priority date of April 12, 2001. USCIS must 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 on the representation that it requires all of these workers and intends to employ them upon approval of the petitions. 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 of its 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 750B job offer, the predecessor to the Form ETA 750 and ETA Form 9089). See also 8 C.F.R. § 204.5(g)(2).
As noted above , the director requested in the RFE that the petitioner submit evidence to establish its ability to pay the proffered wage for each of the other beneficiaries of its other pending petitions and to submit evidence of its ability to pay from 2007 to 2012. To date, the petitioner has failed to respond to the director's request.
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 assets. The petitioner ' s tax returns demonstrate its end-of-year net current assets as shown in the table below:
- In 2001 (March 1, 2001 to February 28, 2002), the Form 1120 stated net current assets (liabilities) of -$404.00.
- In 2002 (March 1, 2002 to February 28, 2003), the Form 1120 stated net current assets of $36,407.00.
- In 2003 (March 1, 2003 to February 28, 2004), the Form 1120 stated net current assets of $39,658.00.
- In 2004 (March 1, 2004 to February 28, 2005), the Form 1120 stated net current assets of $33,997.00.
- In 2005 (March 1, 2005 to February 28, 2006), the Form 1120 stated net current assets of $64,843.00.
- In 2006 (March 1, 2006 to February 28, 2007), the Form 1120 stated net current assets of $84,893.00.
The evidence demonstrates that for the fiscal year 2001, the petitioner did not have sufficient net current assets to pay the proffered wage to the beneficiary in this case. As noted above, although the net current asset amounts for the fiscal years 2002 through 2006 exceed the proffered wage amount, USCIS electronic records indicate that the petitioner has filed additional immigrant petitions since the priority date; and therefore, the petitioner's ability to pay the proffered wage for all beneficiaries must be assessed. Further, no evidence of record establishes the petitioner's ability to pay the proffered wage from 2007 to 2012. These issues were not addressed by the petitioner in that it failed to respond to the director's RFE.
Therefore, from the date the Form ETA 750 was accepted for processing by the DOL through 2012, the petitioner had not established that it had the continuing ability to pay the beneficiary and other sponsored beneficiaries the proffered wage as of the priority date through an examination of wages paid to the beneficiary, or its net income or net current assets. 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 this matter, the totality of the circumstances does not establish that the petitioner had or has the ability to pay the proffered wage in the relevant years. 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 years. The petitioner has not submitted evidence to establish that the beneficiary is replacing a former employee whose primary duties were described in the Form ETA 750. . Overall, it has not been established that the job offers to the beneficiary of the instant case and to the other sponsored beneficiaries at the proffered wage were realistic.
A second issue in this case is whether the petitioner has submitted sufficient evidence to demonstrate that the beneficiary had two years of experience as a cook as of the priority date. In determining whether the beneficiary is qualified to perform the duties of the proffered position, the petitioner must demonstrate that, on the priority date, the beneficiary had the qualifications stated on its labor certification application, 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).
To determine whether a beneficiary is eligible for an employment based immigrant visa, USCIS must examine whether the alien's credentials meet the requirements set forth in the labor certification. In evaluating the beneficiary's qualifications, USCIS must look to the job offer portion of the labor certification to determine the required qualifications for the position. USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm. 1986). See also, Mandany v. Smith, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); and Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
The beneficiary set forth his credentials on the labor certification and signed his name under a declaration that the contents of the form are true and correct under the penalty of perjury. On the section of the labor certification eliciting information of the beneficiary's two years of experience as a cook, he represented that he was employed by located in New York as a chef/cook from November 1997 to December 1999. The beneficiary also stated on the labor certification that he was self-employed as a cab driver from March 1999 to December 2006. As evidence of the beneficiary's employment, the petitioner submitted an employment statement dated December 1, 1999, from the office manager of who stated that the business employed the beneficiary as a chef from November 1997 to the present. Here, the employment statement does not establish that beneficiary has the experience necessary to perform the duties described in the Form ETA 750. The letter fails to specify the beneficiary's job duties or whether the beneficiary's employment was on a full-time basis. The declarant also fails to state the basis of his knowledge of the beneficiary's employment. In addition, the beneficiary stated on the Form G-325A, Biographic Information, dated April 25, 2002, that he was employed by from January 1997 to February 1999. The beneficiary stated on his Form G-325A dated July 26, 2007 that he was employed by from November 1997 to 1999, and that he was self-employed as a cab driver from March 1999 to p. 9 December 2006. These inconsistencies cast doubt on the petitioner's proof. Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the petition. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth lies, will not suffice.Inconsistencies in the record Matter of Ho, 19 I&N Dec. at 582.
The director also denied the petition due to abandonment. In the director's Request for Evidence (RFE) dated December 27, 2012, the director requested that the petitioner submit evidence to demonstrate its ability to pay the proffered wage to the beneficiary and to the other sponsored beneficiaries. The director also requested that the petitioner submit evidence to establish that the beneficiary meets the experience requirements listed on the labor certification as of the priority date. The director noted in the Notice of Certification that the petitioner had failed to respond to the RFE; and therefore, determined that the petition would also be denied due to abandonment. See 8 C.F.R. § 103.2(b)(13). The director ' s decision to deny the petition due to abandonment is appropriate.
For these reasons, considered both in sum and as separate grounds for denial, the petition may not be approved. In visa petition proceedings, it is the petitioner's bvrden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not met that burden.
ORDER: The director's decision is affirmed. The petition is denied.