The Petitioner, a provider of software development services. seeks to employ the Beneficiary as a "senior member technical staff.'' It requests his classification as a member of the professions holding an advanced degree under the second-preference. immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(2)(A). 8 U.S.C. ~ 1153(b)(2)(A). This employment-based. ''EB-2'' category allows U.S. businesses to sponsor foreign nationals for lawful permanent resident status if they have master's degrees. or bachelor's degrees followed by five years of experience.
The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish the Petitioner as a successor in interest of the employer listed on the accompanying labor certification. Specifically, the Director found that: the timing of the Petitioner's acquisition of the employer's business years before the labor application's filing barred the claimed successorship: the position's location, and thus the job opportunity. had changed: and the Petitioner did not demonstrate its ability to pay the proffered wage.
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in his successorship determination. The Petitioner contends that the labor certification authorized the position's relocation and that the Director disregarded the totality of circumstances in determining the Petitioner's ability to pay.
Upon de novo review, we will dismiss the appeal.
The Employment-Based Immigration Process
Employment-based immigration generally follows a three-step process. First an employer tiles a labor certification application with the U.S. Department of Labor (DOL). See section 212(a)(5 )(A)( i) of the Act, 8 U.S.C. ~ 1182(a)(5)(A)(i). The DOL must determine whether the United States lacks able, willing, qualified, and available workers for an offered position, and whether employment of a foreign national would hurt the wages and working conditions oflJ.S. workers with similarjobs. /d.
If the DOL certifies a foreign national to permanently fill an offered position. the employer must submit the certification with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. ~ 1154. If USCIS approves a petition. a p. 2 foreign national may finally apply for an immigrant visa abroad or. if eligible. adjustment of status in the United States. See section 245 of the Act. 8 U.S.C. ~ 1255.
The Petitioner's Claimed Successorship in Interest
The Director denied the petition finding that the Petitioner had not established itself as a successor in interest to the employer listed on the labor certification. Unless accompanied by an application for Schedule A designation or documentation of a beneficiary"s qualifications for a shortage occupation. a petition for an advanced degree professional must include a valid. individual labor certification. 8 C.F.R. § 204.5(k)(4)(i). A labor certification remains valid only for the ''particular job opportunity'' stated on it. 20 C.F.R. § 656.30(c)(2).
A business may use another employer's labor certification. however. if the business establishes itself as the original employer's successor in interest. See Matter of" Dial Auto Repair Shop. Inc.. 19 I&N Dec. 481.482-83 (Comm'r 1986) (requiring a successor to establish its acquisition of the rights and obligations needed to continue a labor certification employer's business). A successor must fully document its acquisition of an original employer's business. establish that the terms of the offered position otherwise remain the same as certified. and prove its eligibility for petition approval in all respects, including its ability to pay the proffered wage. !d.
Here, the Petitioner asserts itself as the successor of the labor certification employer's sothvare business. Evidence indicates that the labor certification employer and outside investors formed the Petitioner in 2013, with the labor certification employer transferring assets to the new corporation and controlling a majority of its stock. The labor certification employer continued to operate other businesses and filed the certification application for the offered position in 2016.
A. The Timing of the Petitioner's Acquisition
The record indicates the Petitioner's acquisition of the business of the labor certification employer more than three years before the labor application's filing. The Director found that the acquisition's timing barred the Petitioner's successorship. We agree.
Neither USCIS nor the DOL recognize a successorship formed before the start of the immigration process. USCIS has stated: "For successor-in-interest purposes. the transfer of ownership may occur at any time afler the filing or approval of" the original lahor certification with !the] DOL." USCIS Policy Memorandum PM-602-0005. L Evaluation of" Evidence Suhmilled lrith Certain Form I-140 Petitions: Revision to the Adjudicator ·s Field Manual (AFM) Chapter 22.2 23 (Dec. 22. 201 0). https://www.uscis.gov/laws/policy-memoranda (emphasis added) (last visited Aug. 17, 2017). The DOL recognizes a successorship created before a labor certification· s filing. but only if an employer DOL
Under the current labor certification process, employers test the U.S. labor market by advertising an otlered position before filing an application for labor certification. 20 C.F.R. ~ 656.17(e). was acquired or merged after it began advertising a position for labor certification purposes.
Malter ofP-S-, Inc.
O f f i c e o f F o r e i g n L a b o r C e r t i f i c a t i o n , O F L C Frequent~v A s k e d Q u e s t i o n s a n d A n s w e r s , Advertisement Content Question #1 0. https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited Aug. 17, 2017). Neither agency has recognized a successorship created, as in this case. years before the start of the labor certification process.
In a request for evidence, the Director asked the Petitioner to explain why it used the original employer's labor certification, rather than obtaining a certification of its own. The Petitioner. however, provided no explanation.
Thus, based on the timing of the Petitioner's acquisition of the employer" s business years before the start of the labor certification process, the record does not establish the Petitioner's claimed successorship.
B. The Location ofthe Job Opportunity
The Director also found that the job opportunity does not remain the same as stated on the labor certification. The certification states the worksite of the offered position of senior member technical staff as the employer's headquarters in Massachusetts ··and various. unanticipated sites throughout the United States.'' The Petitioner, however. states that it will employ the Beneficiary in the o1Tered position at its headquarters in California. The Director found that the position's change of location "constitutes a change in the job offer.·· On appeal, the Petitioner argues that the position·s location did not change because the labor certification allows for relocation ''throughout the United States." The Petitioner cites two Board of Alien Labor Certification Appeals (BALCA) cases recognizing that the DOL considers a worksite description of "various unanticipated locations throughout the U.S." to indicate that an offered position requires relocation. See Maller q(b?f(Jsys Ltd. 2016-PER-00074. 2016 WL 2851425. at *8 (BALCA May 12, 2016); Matter o( Tech. Consultants-M4. Inc.. 2011-PER-01288. 2012 WL 2344657, *2 (BALCA June 14, 2012). The BALCA cases found that. if a position requires relocation to unanticipated locations, an employer may so state on a certification application and use the prevailing wage rate for its headqumiers. ld (citing DOL Field Memorandum No. 48-94. Barbara Ann Farmer, Admin'r for Reg'] Mgmt., Policy Guidance on Alien Labor Certification Issues 4 (May 16, 1994)); see also 20 C.F.R. § 656.1 O(c)(l) (requiring a labor certification employer to pay a foreign national at least the prevailing wage amount).
We acknowledge that the offered position involves relocation within the United States. But BAI,CA has also found that job opportunities are not hona fide if employers use prevailing wage rates for locations unrelated to actual worksites. See Matters ofParadigm Infotech. Inc.. 2007-INA-00003. 2007 WL 1798690 *5 (BALCA June 15, 2007): Matters ofeBusiness Applications Solutions. Inc., 2005-INA-87, 2006 WL 4579779, *8 (BALCA Dec. 6, 2006). In ParadiKm. for example. the employer used a prevailing wage rate covering a branch office in Pennsylvania that was $10,000 less than the rate at its headquarters in Maryland. ParadiKm, 2006 WL XXXXX at *1. Because the employer did not establish an intention to employ the foreign national in Pennsylvania and indicated p. 4 that the position involved relocation throughout the United States, BALCA found that the employer's use of the Pennsylvania prevailing wage '"was artificial and misrepresented the appropriate wage rate for this job opportunity." /d. at *5.
Similar to Paradigm, the Petitioner here has not established that it intended to employ the Beneficiary at the primary worksite listed on the labor certification. The position·s annual proffered wage of $119,226 reflects the occupation's prevailing wage at the labor certification employer's Massachusetts headquarters. Online DOL records indicate that. as of the prevailing wage determination in April 2016, the annual prevailing wage of the offered position at the Petitioner·s California headquarters was $138,362. almost $20,000 higher. ,\'ee Foreign Labor Certification Data Center, Online Wage Library. https://www.flcdatacentcr.com (last visited Aug. 17. 2017). Thus, contrary to the Act, the Petitioner's successorship would appear to allow it to employ the Beneficiary at a lesser wage than U.S. workers similarly employed near its headquarters. See section 212(a)(5)(A)(i)(II) of the Act (requiring the DOL to certify that •·the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed''); The record therefore does not establish that the offered position remains the same as described on the labor certification. Instead, the record suggests that. rather than tiling a labor certification application based on the prevailing wage of the offered position at the intended worksite in California, the Petitioner used an application based on a lower wage at the headquarters of its majority owner in Massachusetts.
C. The Petitioner's Ability to Pay the Proffered Wage
The Director also found that the Petitioner did not demonstrate its ability to pay the position's proffered wage. A petitioner must demonstrate its continuing ability to pay a proffered wage. from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 U.S.C. § 204.5(g)(2). Evidence of ability to pay must include copies of annual reports. federal income tax returns, or audited financial statements. /d.
As previously indicated, the labor certification states the annual proffered wage of the offered position of senior member technical staff as $119,226. The petition·s priority date is August 29. 2016, the date the DOL received the labor application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date).
In determining ability to pay, USCIS first examines whether a petitioner paid a beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not annually pay the full proffered wage, USCIS will consider whether it generated sutlicient annual amounts of net income or net current assets to pay the difference between the annual proffered wage and any wages paid. If net income and net current assets are insutlicient, USCIS may also consider other factors affecting a Federal courts have upheld our method of determining a petition's ability to pay a proffered wage. See. e.g.. Rin'r St. Donuts. LLC v. Napolitano, 558 F.3d Ill, I 18 (I st Cir. 2009); Estrada-Hernande:: \'. Holder. I08 F. Supp. 3d 936. 942-43 petition's ability to pay. See Matter qfSonegavra. 12 I&N Dec. 612. 614-15 (Reg'! Comm·r 1967).
Here, the Petitioner submitted a copy of an IRS Form W-2, Wage and Tax Statement. indicating its payment of wages to the Beneficiary in 2016 of$ I I4.823.01. This amount does not equal or exceed the annual proffered wage of $I 19,226. The record therefore does not establish the Petitioner's ability to pay the proffered wage based on its payments to the Beneficiary.
Nevertheless, we credit the Petitioner's payments to the Beneficiary. The Petitioner need only demonstrate its ability to pay the difference between the annual proffered wage and the wages it paid the Beneficiary, or $4,402.99.
As ofthe Director's decision, required evidence of the Petitioner's ability to pay in 2016 was not yet available. Although the financial information for 20I6 should have been available at the time the appeal was filed, the Petitioner did not submit one ofthe three forms of required regulatory evidence for that year. Absent this evidence. we cannot find that the Petitioner has the ability to pay the proffered wage in that year.
Also, USCIS records indicate the Petitioner's tiling of at least 22 petitions for other beneficiaries that were pending or filed after this petition's priority date. A petitioner must demonstrate its ability to pay the proffered wage of each petition it tiles until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore demonstrate its ability to pay the combined protlered wages of this and the other petitions that were pending or filed attcr its priority date. The Petitioner must demonstrate its ability to pay the combined proffered wages until the other beneficiaries obtained lawful permanent residence. See Patel v. .Johnson. 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming revocation of a petition's approval where the petitioner. as of the filing's grant. did not demonstrate its ability to pay the combined proffered wages of multiple. pending or approved petitions).
The record does not indicate the proffered wages of the Petitioner's other 14 petitions. or whether it paid wages to any of their beneficiaries. The record also does not indicate whether any of the beneficiaries obtained lawful permanent residence, or whether their petitions were denied. withdrawn, or revoked. In any future filings. the Petitioner must provide this information to establish its ability to pay the protTered wage.
The Petitioner provided a letter from its controller in support of its ability to pay the proffered \>..age. See 8 C.F.R. § 204.5(g)(2) (stating that a letter from a financial otticer of a petitioner with at least I00 employees "may'' establish its ability to pay). Because the record indicates the Petitioner·s filing of multiple petitions. however, the letter is insutticient to establish the Petitioner's ability to pay.
As the Petitioner argues. when determining ability to pay, we may consider factors beyond net income and net current assets. See Matter (?(SoneRawa. 12 I&N Dec. 612. 614-15 (Reg'! Comm'r (S.D. Cal. 2015); Rivzi v. Dep't of" Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014). aff"d. 627 Fed. App'x. 292 (5th Cir. 20 I5). p. 6 1967). We may consider such factors as: the number of years a petitioner has conducted business: its number of employees; the growth of its business: its incurrence of uncharacteristic losses or expenses; its reputation in its industry; whether a beneficiary will replace a current employee or outsourced service; or other evidence of its ability to pay the proffered wage. !d.
Here, without required evidence of the Petitioner's ability to pay the proffered wage in 2016, the year of the petition's priority date. we cannot fully analyze the totality of the Petitioner's circumstances. Nevertheless, the record would not establish the Petitioner's ability to pay under Sonegawa. The record indicates the Petitioner's employment of about 1.600 people in the United States and growth of its annual revenues from 2014 to 2015. The record also indicates that large. well-known U.S. corporations have invested substantial amounts in the Petitioner. evidencing its possession of a good reputation in its industry.
Unlike the petitioner in Sonegawa, however. which conducted business for at least 10 years. the Petitioner here formed only about four years ago. Also, while the petitioner in S'onegawa incurred a loss in only one year, the Petitioner's audited financial statements indicate that it has accrued $740.6 million in losses since its inception. The record does not indicate the Petitioner's incurrence of uncharacteristic losses or expenses, or the Beneficiary's replacement of a current employee or outsourced service. Also, unlike the petitioner in Sonegawa, the Petitioner must demonstrate its ability to pay the combined proffered wages of multiple beneficiaries. Thus. under Sonegmra, the totality ofthe circumstances would not establish the Petitioner's ability to pay the proffered wage.
For the foregoing reasons, the record does not establish the Petitioner as a successor in interest of the labor certification employer.No interest from users, customers or investors We will therefore affirm the Director's decision.
The Beneficiary's Possession of the Required Experience
Although unaddressed by the Director, the record also does not establish the Beneficiary's possession of the mm1mum expenence required for the offered position and the requested classification.
As previously indicated, a beneficiary of an advanced degree petition must have a master's degree. or a bachelor's degree followed by at least five years of progressive experience in the specialty. 8 C.F.R. § 204.5(k)(2) (defining the tem1 "'advanced degree"). By a petition's priority date. a beneficiary must also possess all the DOL-certified job requirements stated on a labor certification. Matter o(Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'! Comm·r 1977).
Here, the labor certification states the minimum requirements of the offered position of senior member technical staff as a bachelor's degree and five years of experience in a computer-related occupation. The labor certification also states that experience must include work with various. specified technologies. The Beneficiary's educational qualifications are not at issue.
On the labor certification, the Beneficiary attested to his possession. before the petition·s priority date, of about 10 years of full-time, qualifying experience. He gained more than five years of that experience at a company in China that a U.S. firm later acquired.
A petitioner must support a beneficiary"s claimed experience \vith a letter from an employer. 8 C.F.R. § 204.5(g)( 1). The letter must provide the employer's name. title. and address. and describe a beneficiary's experience. !d. If required evidence is unavailable. a petitioner must document the unavailability before USCIS will accept secondary evidence. 8 C.F.R. § 103.2(b)(2)(i).
The Petitioner submitted a letter on the stationery of the Beneficiary's purported former employer in China. The letter states the company"s employment of the Beneficiary for more than five years. Contrary to 8 C.F.R. § 204.5(g)(l), however, the letter does not describe the Beneficiary"s expenence. The letter also does not indicate the Beneficiary"s experience with the required technologies stated on the labor certification. The letter therefore does not establish the Beneficiary's qualifying experience.
The Petitioner also submitted a letter from a purported supervisor of the Beneficiary at the company in China. Like the company letter, the supervisor's letter states the Beneficiary's employment for more than five years. The supervisor's letter also describes the Beneficiary's job duties during the period, including his experience with the required technologies stated on the labor certification.
The supervisor, however, states that the company no longer employs him. Ilis letter is on his personal stationery, not on the company's letterhead. The record lacks evidence ofthe supervisor's claimed, former affiliation with the company. The letter is therefore not sutliciently reliable to establish the Beneficiary's qualifying experience. Moreover. contrary to 8 C.F.R. § 103.2(b)(2)(i). the Petitioner did not demonstrate the unavailability of the required letter from the employer. We therefore cannot accept the supervisor's independent letter as secondary evidence of the Beneficiary's claimed qualifying experience.
Besides documentation of a U.S. company's acquisition of the Chinese company, the Petitioner did not submit additional evidence of the Beneficiary's experience. The record therefore does not establish the Beneficiary's possession of the minimum experience required for the offered position or the requested classification. In any future filings in this matter, the Petitioner must submit additional evidence ofthe Beneficiary"s qualifying experience.
Conclusion
The record does not establish the Petitioner as a successor in interest of the labor certification employer. The petition is therefore unaccompanied by a valid. individual labor certification. The record also does not establish that the Beneficiary has the required experience for the offered position and requested classification.
ORDER: The appeal is dismissed.
Cite as Matter alP-S-, Inc., ID# 738124 (AAO Nov. 22, 2017)