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 1-2908) 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 . § 1 03.5. Do not file a motion directly with the AAO.
Thank you,
AI£~
Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The preference visa petition was denied by the Director, Tex as Service Center (the director) and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a software consulting firm . It seeks to employ the beneficiary permanently in the United States as a programmer analyst. 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 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 . The director denied the petition accordingly.
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. 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 May 8, 2014 denial, an issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence .
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 AAO conducts appellate review on a de novo basis . See Soltane v . DOJ, 381 F.3d 143, 145 (3d Cir. 2004) . The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.'
Ability to Pay
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospectiv e e mployer to pay wage. Any petitiOn filed by or for an emplo yment-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. The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B , which are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(l). The record in the instant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988).
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, Application for Permanent Employment Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977).
Here, the ETA Form 9089 was accepted on September 3, 2010. The proffered wage as stated on the ETA Form 9089 is $70,000.00 per year. The ETA Form 9089 states that the position requires a Master's degree in computer science and 6 months of experience in the proffered position, as a programmer analyst.
The evidence in the record of proceeding shows that the petitioner is structured as a single member limited liability company and taxed as an S corporation. On the petition, the petitioner claimed to have been established in 2004 and to currently employ 22 workers. On the ETA Form 9089, signed by the beneficiary on April 20, 2011, the beneficiary claimed to have worked for. the petitioner since April 5, 2005.
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, 144 (Acting Reg'l 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 o[Sonegawa, 12 I&N Dec. 612,614-15 (Reg'l 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 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, as reflected in the table below, the petitioner demonstrated that it has paid the beneficiary partial wages in all relevant years as of the priority date in 2010. Thus, the petitioner must demonstrate that it can pay the difference between wages actual! y paid to the beneficiary and the proffered wage since 201 0. In the instant case, the record reflects that the petitioner paid the beneficiary $38,871.42 in 2010, $36,455.26 in 2011, $52,544.07 in 2012 and $72,334.13 in 2013. We find that the petitioner paid the beneficiary the proffered wage in 2013. The petitioner must show that it had the ability to pay the difference between the actual wages paid and the proffered wage from 2010 through 2012?
On appeal, counsel asserts that the petitioner has paid the beneficiary a wage within 5 percent of the proffered wage, which is the allowable difference. On March 28, 2005, pursuant to 20 C.F.R. 2 This amounts to $31,128.58 in 2010,$33,544.74 in 2011 and $17,455.93 in 2012. p. 4 § 656.17, the Application for Permanent Employment Certification , ETA Form 9089 replaced the Application for Alien Employment Certification, Form ETA 750. The new Form ETA 9089 was introduced in connection with the re-engineered permanent foreign labor certification program (PERM), which was published in the Federal Register on December 27, 2004 with an effective date of March 28, 2005. See 69 Fed. Reg. 77326 (Dec. 27, 2004). According to pre-PERM 20 C.F.R. § 656.40(a)(2)(i) , the wage set forth in the labor certification application shall be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages. However, the requirement that the petitioner be able to pay the proffered wage never permitted such a variance. The petitioner must be able to show that it has the ability to pay the full proffered wage as listed on the labor certification. 20 C.F.R. § 656.40(a)(2)(i) merely permitted a petitioner to list a proffered wage which is within 5 percent of the prevailing wage. Further, the instant petition involves a labor certification under the PERM regulations and 20 C.F.R. § 656.40 is no longer applicable. The petitioner originally submitted an Internal Revenue Service (IRS) Form W-2, Wage and Tax Statement, reflecting payment of $52,544.07 in wages to the beneficiary in 2012. The petitioner contends that the actual wages paid to the beneficiary in 2012 are $62,544.07. In support of this assertion, the petitioner initially submitted an IRS Form 1099, Miscellaneous Income, reflecting an additional payment of $10,000.00 to the beneficiary. On appeal, counsel submits a new 2012 IRS Form W -2 for the beneficiary reflecting payment of $62,544.07 and a letter from a CPA stating that the $10,000.00 was paid to the beneficiary as salary arrears for 2012 and the company was issuing a revised Form W-2. However, in order to amend a Form W-2 already issued to an employee , an IRS Form W-2c, Corrected Wage and Tax Statement, must be filed. Further, there is no evidence reflecting the actual payment of the $10,000.00 in arrears. Moreover, the petitioner must submit independent, objective evidence reflecting the true amount paid to the beneficiary in 2012, such as a certified, amended Form W-2. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.Inconsistencies in the record Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Finally, even if we accepted that the petitioner paid the beneficiary $62,544.07 in 2012, the petitioner's net income and net current assets for 2012 were insufficient to pay the proffered wages to the instant beneficiary and the proffered wages to beneficiaries of other Form 1-140 immigrant petitions filed by the petitioner. According to the petitioner and reflected in the table below, the petitioner has filed five (5) Form I-140 immigrant petitions on behalf of other beneficiaries.3 Accordingly, the petitioner must establish that it has had the continuing ability to pay the combined proffered wages to each beneficiary from the priority date of the instant petition. See Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977).
Proffered
Wage Wage 2010 Wage 2011 Wage 2012 Wage 2013
$75,000.00 $107,167 .30 $70,579.77 $95,488.46
$82,584.49
$75,000.00 $84,725.30
$78,294.14 $86,672.02 $101,471.58
$75,000.00 $75,000.00 $75,000.00 $75,000.00 $75,000 .00 .
$75,000.00 $75,000.00 $75,000.00 $75,000.00 $75,000.00 $75,000.00 $75,000.00 $75,000.00 $75,000.00 $75,000.00 Total Wages
Owed $225,000.00 $225,000.00 $225,000.00 $225,000.00 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 St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Taco Especial v. Napolitano , 696 F. Supp. 2d 873, 880 (E.D. Mich. 2010), aff'd, No. 10-1517 (6th Cir. 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 Rest. Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Haw., Ltd. v. Feldman , 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh , 719 F. Supp. 532, 537 (N.D. Tex. 1989); K.C.P. Food Co. v. Sava, 623 F. Supp. 1080, 1084 (S.D.N.Y. 1985); Ubeda v. Palmer , 539 F. Supp. 647, 650 (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., 623 F. Supp. at 1084, the court held that the Immigration and Naturalizati on 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 also Taco Especial, 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 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 4 The petitioner did not withdraw the immigrant petition until April 25, 2014. The petitioner must, therefore, show its ability to pay the proffered wages to this beneficiary from 2011 through 2013. 5 See Footnote 3.
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 St. 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).
For an S corporation , USCIS considers net income to be the figure shown on Line 21 of the Form 1120S, U.S. Income Tax Return for an S Corporation . 7 Ifthe net income the petitioner demonstrates it had available during that period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, USCIS will review the petitioner 's net current assets. Net current assets are the difference between the petitioner's current assets and current liabilities. 8 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 table below reflects the information provided by the petitioner regarding its ability to pay the proffered wage:
NON-PRECEDENTDEC~JON
Calculation Balance of Net Due Balance Total
Tax Current Instant Due to Remaining
Year Net Income Assets W-2 Wage Case Other I-140 Balance 2010 $79,307.00 -$1,073,957.00 $38,871.42 $31,128.58 $225,000.00 $256,128.58 2011 $150,474.00 -$890,861.00 $36,455.26 $33,544.74 $225,000.00 $258,544.74 2012 $14,942.00 -$879,868.00 $52,544.07 $17,455.93 $225,000.00 $242,455.93 2013 UNKNOWN UNKNOWN $72,334.13 $0.00 NIA N/A
Therefore, for 2010, 2011 and 2012, the petitioner did not pay the full proffered wage and did not have sufficient net income or net current assets to pay the proffered wages to the beneficiary and the beneficiaries of other petitions filed on their behalf by the petitioner. The petitioner has failed to provide documentation to establish that it had sufficient net income or net current assets in 2013 to pay the proffered wages to the beneficiary and the beneficiaries of other petitions filed on their behalf by the petitioner.
Therefore, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner
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 the instant case, the petitioner has failed to provide its tax returns for 2013, preventing us from making a determination as to whether the petitioner had the ability to pay the proffered wages since 2010. In addition , there is no evidence in the record of the historical growth of the business , of the occurrence of any uncharacteristic business expenditures or losses from which it has since recovered , or of the business' reputation within its industry. The petitioner 's tax returns do not reflect growth is gross receipts or salaries and wages paid from 2010 through 2012. The record does not demonstrate that the petitioner's tax returns paint an inaccurate financial picture. 10 Thus, assessing the totality of the circumstances in this individual case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage.
Counsel urges the consideration of the beneficiary's proposed employment as an indication that the petitioner's income will increase. Counsel cites Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989) , in support of this assertion. Although part of this decision mentions the ability of the beneficiary to generate income, the holding is based on other grounds and is primarily a criticism of USCIS for failure to specify a formula used in determining the proffered wage. 11 Further, in this instance, no detail or documentation has been provided to explain how the beneficiary's employment as a programmer analyst will significantly increase profits for a consulting firm. This hypothesis cannot be concluded to outweigh the evidence presented in the corporate tax returns.
The evidence submitted does not establish that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date and continuing to the present.
Beneficiary Qualifications and Petitioner's Location Beyond the decision of the director, 12 the petitioner has also not established that the beneficiary is qualified for the offered position . The petitioner must establish that the beneficiary posse ssed all the education, training, and experience specified on the labor certification as of the priorit y date. 8 C.F.R. § 103.
2(b)(l), (12) . See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg ' I Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In 10 Public records indicate that the petitioner has recently had multiple federal and State tax liens filed against it. Any future filings must also address these liens.
evaluating the beneficiary's qualifications, users mus.t 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 Madany v. Smith, 696 F .2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra RedCommissaryofMassachusetts , Inc. v. Coomey, 661 F.2d 1 (1 Cir.1981).
In the instant case, the labor certification states that the offered position requires a master's degree in computer science and six (6) months of experience in the proffered position, as a programmer analyst. No alternate field of study is allowed, based on the terms of the labor certification. On the labor certification, the beneficiary claims to qualify for the offered position based on a master's degree in computer science from _ _ _ India, completed in 2003. The record contains a copy of the beneficiary's Master of Computer Applications (MCA) diploma and transcripts from India, issued in 2003.
We have 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 institutions and agencies in the United States and in over 40 countries around the world." See http://www.aacrao.org/ About-AACRAO.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." http://edge .aacrao.org/info.php. Authors for EDGE must work with a publication consultant and a Council Liaison with AACRAO 's National Council on the Evaluation of Foreign Educational Credentials. 13 If placement recommendations are included, the Council Liaison works with the author to give feedback and the publication is subject to final review by the entire Council. !d. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies. 14 13 See An Author's Guide to Creating AACRAO International Publications available at http:/ /www.aacrao.org/Libraries/Publications _Documents/GUIDE_ TO_ CREATING_ INTERN A TIO NAL PUBLICATIONS 1.sflb.ashx.
According to EDGE, a Master of Computer Application (MCA) represents the "attainment of a level of education comparable to a master's degree in the United States," but that this degree is "[ c ]omparable to a degree in computer application, not computer science." The University's Faculty of Science, from which the beneficiar earned his Master's degree, also offers degrees in Computer Science , which indicates that distinguishes between the fields of computer science and computer applications. We do not find EDGE's use of the term "computer application" to refer to a specific degree program but to computer fields that involve the practical application of theoretical computer knowledge. Accordingly , we find EDGE's credential advice to indicate that the beneficiary's MCA is comparable to U.S. Masters' degrees in Management Information Systems or Computer Information Systems, rather than Computer Science. No evidence in the record distinguishes the beneficiary's MCA from a U.S. Master of Science in one of the preceding fields, which are not equivalent to a degree in Computer Science.
The record does not establish that the beneficiary's MCA is the foreign equivalent of a Master ' s degree in Computer Science issued by a regionally accredited U.S. college or university.Degree not shown to be a U.S. advanced degree equivalent Accordingly, the evidence in the record does not establish that the beneficiary possessed the required education set forth on the labor certification