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:
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.usds.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 Director, Tex as Service Center, denied the immigrant visa petitiOn and dismissed a subsequent motion. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed .
The petitioner describes itself as a diamond and jewelry wholesaler. It seeks to permanently employ the beneficiary in the United States as a marketing analyst. The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).
At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
Procedural History
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). 1 The priority date of the petition is January 3, 2012. 2 Part H of the labor certification states that the offered position has the following rmmmum requirements:
H.4. Education: Master's degree in business administration.
H.5. Training: None required.
H.6. Experience in the job offered: 12 Months.
H.7. Alternate field of study: None accepted.
H.8. Alternate combination of education and experience: None accepted.
H.9. Foreign educational equivalent: Accepted.
H.lO . Experience in an alternate occupation: None accepted.
H.14 : Specific skills or other requirements: None.
Part J of the labor certification states that the beneficiary possesses a Master's degree in business administration from India, completed in 1990. The record contains a copy of the beneficiary's diploma and transcripts from . India, issued in 1990.
The record also contains an evaluation of the beneficiary's educational credentials prepared by for on September 19, 2012. The evaluation states that the beneficiary's combination of an Indian bachelor's and master's degree are the educational equivalent in the United States of a Master of Business Administration Degree. The record also contains an evaluation of the beneficiary's educational credentials prepared by Dr. for 1 See section 212(a)(5)(D) of the Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). p. 3 on September 20, 2012. The evaluation states that the beneficiary ' s master ' s degree is the educational equivalent in the United States of a Master of Business Administration Degree. On appeal, the petitioner states, through counsel, that the director erred in not accepting the education evaluation of Dr. Counsel maintains that the beneficiary 's master's degree is equivalent to a master's degree awarded from a U.S. college or university. Counsel states that the director erred in not accepting the beneficiary's bachelor's degree as a four year degree supporting the beneficiary's master 's degree . In support of his assertions, counsel provided another opinion from Dr. dated October 23, 2012.
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis. 3 The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.
A petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the director does not identify all of the grounds for denial in the initial decision. 5
Law and Analysis
The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) of the Act, which provides:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that-(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time 3 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
It is significant that none of the above inquiries assigned to the DOL, or the regulations implementing these duties under 20 C.F.R. § 656, involve a determination as to whether the position and the alien are qualified for a specific immigrant classification. This fact has not gone unnoticed by federal circuit courts :
There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise . See Castan eda Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14) .6 ld. at 423. The necessary result of these two grants of authority is that section 212(a)(14) determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority.
Given the language of the Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act , we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14) . If DOL is to analyze alien qualifications , it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212( a)(14) determinations.
Madany v. Smith, 696 F.2d 1008 , 1012-1013 (D.C . Cir. 1983). Relying in part on Madany , 696 F.2d at 1008, the Ninth Circuit stated:
[I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b ), 8 U .S.C. § 1154(b ), as one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status.
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following:
The labor certification made by the Secretary of Labor ... pursuant to section 212(a)(14) of the [Act] is binding as to the findings of whether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job.
(Emphasis added.) !d. at 1009. The Ninth Circuit, citingK.R.K. Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating:
The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. !d. § 204(b ), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983).
The INS, therefore , may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer.
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984).
Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification . Eligibility for the Classification Sought
Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(l).
The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as:
[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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.
A "profession" is defined as "one of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 10l(a)(32) of_ the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries."
The regulation at 8 C.F.R. § 204 ~ 5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by:
(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i).
Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. In the instant case, the petitioner relies on the beneficiary's three-year Bachelor of Business Administration from India, followed by a Master of Business Administration from India as being equivalent to a U.S. master's degree.
On August 15, 2013, the AAO sent the petitioner a notice of intent to dismiss the appeal (NOID) with a copy to counsel. The NOID sought additional evidence establishing that the beneficiary possesses the foreign equivalent of a master's degree from a U.S. college or university, evidence of the petitioner's continuing ability to pay the proffered wage, and evidence of the beneficiary's claimed work experience. The AAO informed the petitioner in the NOID that failure to submit p. 7 requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103 .2(b)(14) .
The petitioner responded to the AAO 's NOID on September 17, 2013, through counsel. Counsel stated that the AAO voiced general concerns about the beneficiary's education and did not take into account the specific evaluations in the record. The petitioner failed to provide any response to address the AAO ' s concerns about the beneficiary's work experience or the petitioner 's ability to pay the proffered wage from the priority date.
The record contains two opinions by Dr. one dated September 20, 2012 and the second dated October 23, 2012. Dr. states that the beneficiary's three year bachelor of business administration degree is similar to the highly structured first three years of undergraduate studies in many five-year programs in the United States leading to a combined B.A./M.B.A. degree after five years of study. Dr. indicates that many prestigious United States universities accept the Indian three-year bachelor of business administration degree into the master of business administration programs. 7 He concludes that the beneficiary ' s three year bachelor of business administration and two year master of business administration is the equivalent of a master of business administration in the United States.
The record also contains a credentials evaluation from dated September 19, 2012 .
Mr. concludes that the beneficiary's three year bachelor's degree is the equivalent of three years of university study in the United States leading to a bachelor's of business administration. Mr. stat es that based on the total number of courses and credit hours taken in both the three year bachelor's program and the two year master's program, the beneficiary's master of business administration is the equivalent of a master of business administration from an accredited university in the United States. Mr. provides no comparison between the courses required of the beneficiary in pursuit of the master's degree in India as compared to courses required in the pursuit of a U.S. Master's degree. Mr. does not explain how the beneficiary's additional two years of study in pursuit of his Master ' s degree would be equivalent to the three years required to complete a U.S. Master's (the fourth year of baccalaureate studies plus two years of Master's studies). 8
These two evalu ations contradict each other since Dr. concludes that the beneficiary's three year bachelor's degree is the equivalent of a concentrated United States bachelor's degree in business administration, and Mr. states that the three year bachelor's degree is the equivalent of three years of university study in the United States. The differences are material and cast doubt on the reliability of the evaluations. It is incumbent on 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 , in fact , lies, will not suffice.Inconsistencies in the record Matter of Ho , 19 l&N Dec. 582, 591-592 (BIA 1988) In response to the AAO's NOID the petitioner requests the AAO to consider the opinions expressed by Dr. Dr. generally reviews the number of years of study , admission requirements , complexity of work and the curricula for the Indian Master 's of Business Administration and the Master's of Business Administration obtained in the United States. He does not review the differences in the educational systems in the United States and India, state how he determined the nature and the complexity of the coursework taken in the Indian and in the United States MBA programs or how many credits each course taken by the beneficiary compares to studies at a United States university.
USCIS may, in its discretion , use as advisory opinions statements submitted as expert testimony. See Matter of Caron International , 19 I&N Dec. 791 , 795 (Commr. 1988) . However , USCIS is ultimately responsible for making the final determination regarding an alien's eligibility for the benefit sought. !d. The submission of letters from experts supporting the petition is not presumptive evidence of eligibility. USCIS may evaluate the content of the letters as to whether they support the alien's eligibility. See id. at 795. US CIS may give less weight to an opinion that is not corroborated , in accord with other inform ation or is in any way questionable. Jd. at 795. See also Matter of Soffici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Commr. 1972)); Matter of D-R-, 25 I&N Dec . 445 (BIA 2011)(expert witness testimony may be given different weight depending on the extent of the expert's qualification s or the relevance , reliability , and probative value of the testimony).
As noted above , the evalu ations submitted by the petitioner are inconsistent, with one stating the beneficiary's bachelor's degree was similar to a concentrated three year bach elor's in the United States, and the second indicating that the beneficiary 's three year degree is the equivalent of a United States baccalaureate degree. USCIS does not consider a three year degree to be equivalent to a U.S. bachelor's degree.Degree not shown to be a U.S. advanced degree equivalent Matter of Shah, 17 I&N Dec. 244, 245.
The AAO has reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 (accessed November 22, 2013). p. 9 institutions and agencies in the United States and in over 40 countries around the world." See http://www.aacrao.org/About-AAeRAO.aspx. Its mission "is to serve and advance higher education by providing leadership in academic and enrollment services." !d. EDGE is "a web-based resource for the evaluation of foreign educational credentials." See http://edge.aacrao.org/info.php. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 9
According to EDGE, the beneficiary's three-year Bachelor of Business Administration is comparable to three years of university study in the United States, and the Master of Business Administration is comparable to a bachelor's degree in the United States.
Therefore, based on the inconsistencies between the two evaluations submitted by the petitioner, and the deficiencies in the evaluations noted above, and the conclusions of EDGE as set forth above, the evidence in the record on appeal is not sufficient to establish that the beneficiary possesses the foreign equivalent of a U.S. master's degree.
After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. 10 Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b )(2) of the Act.Five years of progressive experience not documented
The Minimum Requirements of the Offered Position
In addition, the petitioner has also failed to establish that the petitioner possesses the required experience for the offered position.
The pet1t10ner must also establish that the beneficiary satisfied all of the educational, trammg, experience and any other requirements of the offered position by the priority date. 8 C.F.R. § 103.2(b )(l), (12). See Matt er of Wing's Tea House , 16 I&N Dec. 158, 159 (Act. Reg. eomm. 1977); see also Matter of Katigbak , 14 I&N Dec. 45, 49 (Reg. eomm. 1971).
In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, users may not ignore a term of the labor certification , nor may it impose additional requirements. See Madany , 696 F.2d at 1008; K.R.K. Irvine, Inc. , 699 F.2d at 1006; Stewart infra Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st eir. 1981).
Where the job requirements in a labor certification are not otherwise unambiguously prescribed , e.g., by regulation, users must examine "the language of the labor certification job requirements" in order to determine what the petitioner must demonstrate about the benefici ary's qualifications. Madany, 696 F.2d at 1015. The only rational manner by which USCIS can be expected to interpret the meaning of terms used to describe the requirements of a job in a labor certification is to "examine the certified job offer exactly as it is completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984)(emph asis added). userS's interpretation of the job's requirements, as stated on the labor certification must involve "reading and applying the plain languag e of the [labor certification]." !d. at 834 (emph asis added). users cannot and should not reasonably be expected to look beyond the plain language of the labor certification or otherwise attempt to divine the employer's intentions through some sort of reverse engineering of the labor certification. Even though the labor certification may be prepared with the beneficiary in mind, users has an independent role in determining whether the beneficiary meets the labor certification requirement s. See Snapnames.com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006).
Evidence relating to qualifying experienc e must be in the form of a letter from a current or former employer and must include the name, address, and title of the writer , and a specific description of the duties performed by the beneficiary. 8 C.F.R. § 204.5(g)(l). If such evidence is unavailable ; users may consider other document ation relating to the beneficiary's experience. !d.
Part K of the labor certification states that the beneficiary possesses the following employment experience:
- Marketing Analyst with in New York from October 1, 2005 until January. 3, 2012.
- Market Analyst with from January 27, 2002 until December 30, 2003.
The record contains two experience letters from employers that are not included in Part K of the labor certification. In Matter of Leung, 16 I&N Dec . 2530 (BIA 1976), the Board's dicta notes that the beneficiary's experience , without such fact certified by DOL on the beneficiary's Form ETA 750B, lessens the credibility of the evidence and facts asserted .
Concerning experience with the petition er, representations made on the certified ETA Form 9089, which is signed by both the petitioner and the beneficiary under penalty of perjury , clearly indicate that the benefici ary' s experience with the petitioner or experience in an alternate occupation cannot be used to qualify the beneficiary for the certified position. Specifically, the petitioner indicates that questions J.19 and J.20, which ask about experience in an altern ate occupation , are not applicable. In response to question J.21 , which asks , "Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity request ed?," the petitioner answered "no ." The petitioner specifically indicates in response to question H.6 that 12 months of experience in the job offered is requir ed and in response to question H.lO that experience in an alternate occupation is not acceptable. In general, if the answer to question J .21 is no, then the experience with the employer may be used by the beneficiary to qualify for the proffered position if the position was not substantially comp arable and the terms of the ETA Form 9089 at H.10 provide that applicants can qualify through an alternate occupation. Here, the beneficiary indicates in response to question K.l. that his position with the petitioner was as a marketing analyst, and the job duties are the same duties as the position offered. Therefore, the experience gained with the petitioner was in the position offered and is substantially comparable as he/she was performing the same job duties more than 50 percent of the time. According to DOL regul ations, therefore, the petitioner cannot rely on this experience for the beneficiary to qualify for the proffered position. Additionally, as the terms of the labor certification supporting the instant 1-140 petition do not permit consideration of experience in an alternate occupation , and the beneficiar y' s experience with the petitioner was in the position offered, the experience may not be used to qualify the beneficiary for the proffered position.
Additionally, the record does not contain an experience letter from The AAO notified the petitioner of this deficiency in the record through its NOID. The petitioner through counsel did not respond with any evidence establishing the petitioner ' s 12 months of work experience in the job offered .
Therefore , the submitted experience letters do not establish that the beneficiary possessed the required experience for the offered position.
The regulation at 8 C.F .R. § 103 .2(b )(13) states the following: "Effect of failur e to respond to a request for evidence or appearance. If all requested initial evidence and requested additional evidence is not submitted by the required date , the application or petition shall be considered abandoned and , accordingly , shall be denied."
The petitioner failed to establish that the beneficiary possessed the minimum requirements of the offered position set forth on the labor certification by the priority date. Accordingly, the petition must also be denied for this reason.
Ability to Pay the Proffered Wage
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 (Acting Reg'l Comm'r 1977).
Here, the ETA Form 9089 was accepted on January 3, 2012. The proffered wage as stated on the ETA Form 9089 is $65,000 per year.
The record indicates the petitioner is structured as a general partnership and filed its tax returns on IRS Form 1065, U.S. Return of Partnership Income. 11 On the petition, the petitioner claimed to have been established in 2005 and to currently employ six workers. According to the tax returns in the record , the petitioner's fiscal year is based on a calendar year.
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' I Comm'r 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 ofSonegawa, 12 I&N Dec. 612 (Reg'! Comm'r 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 A general partnership consists of two or more general partners. A general partner is personally liable for the partnership's obligations. p. 13 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 record contains no evidence that the petitioner employed and paid the beneficiary in 2012.
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 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 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th 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 wage expense is misplaced. Showing that the petitioner paid wages in excess of the proffered wage is insufficient.
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, 558 F.3d 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, 719 F. Supp. at 537 (emphasis added).
In K.C.P. Food, 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 the Service 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). The record does not contain any evidence in the form of copies of annual reports, federal tax returns, or audited financial statements. Additionally, the petitioner provided no evidence of its ability to pay the proffered wage as of2012 and onwards, in response to the AAO's NOID.
Thus, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner had not established that it had the continuing ability to pay the beneficiary 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.
The evidence contained within the record does not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed.