Advanced Degree or an Allen of Exceptional Ability Pi.Irsua11t to Section 203(b )(2) of the Immigration and Natiomdity Act, 8 U.S.C. § 1153(b)(2) · ON BEHALF OF PETITIONER:
S~LF REPRESENTED
INSTRUCTIONS:
Enclosed please find the deCision of the Achllinistrative Appeals Office (AAO) in your case. This is - ~- 110n-precedent decision. The AAO does not anno-ynee 11.¢\v cons.tructions of law nor establish . (lgency policy through non-precedent .decisions. If you believe the AAO incorrectly applled current law or policy to your case ot if you seek to present new facts for consideration, you may' file . a: motiQ!l to .reconsider on! wotjqn to reopen, respectively. Any motion must be fil~ on a; Notie¢ of Appeal or MotiQJJ (Form I-290B) within 33 days of the date of this d,ecision, Please review the Form I•290b instructions at http:ljwww.uscis.gov/fottns for the httest information on tee, filing _location, ailcJ other requiremet~ts. See also 8 C.F.R. §-103.5. Do noi file a motion directly with t;h~ A,AO. ·· ·R,on RQ~enb~rg
Chief, Administra:tive;Appe(lls Office
' www.lis<:is.gov jt'
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NON-PRECEDENT DECISION
DISCUSSION: The Director, Texas Setvice Center (director), d~nied the employment-based immigrant visa petition. The petitioner filed a motion to· reqpen or reconsider that decision, which was granted and the original decision affitm.ed. The subsequent appe~ wa$ dismissed by th.e Adm.inistratlve Appeals Office (AAO). The petitioner filed an appeal ofthat decision, whicb was rejected by the MO. The matter is now before the AAO on motions to reopen and reconsider. The motions will be granted, t.he previous decision of the AAO will be affirmed, and the petition will remain denied.
The petitioner , describes it$elf as a business and tax consulting services company. It seeks to permanently employ the beneficiary in the United States a.s a management analyst. As requited by statute, the petition is accompanied by an ETA Fortn 9089, Application for Peqnanent Employment Certificati.Oil approved by the United States Department of Labor (DOL). The director determined that the petitioner hacJ not establi$1Jed that jt had the continuing ability to pay the beneficiary the· proffered wage beginhing on the priority date of t.he visa petition. The director denied the petition according! y. . ··
The petitioner filed a motion to reo~ri a.nd recon_sjder the director's . decision, in which the director affirmed the previous fmdihgs~ On June 13, ZOlZ, the AAO dismissed the appeal, holding that the petitioner failed to 'establish its .ability to pay the proffered wage· from . the priority date onwards. The petitioner .theri filed ·an appeal Of the· AAO decision. The re~u_Iting February ·21, 2013 decisjo_n rejected the appeal as no right to appeal ali AAO .decision exists. The petitioner then submitted the instant motion to reopen antl reconsider. We will accept the motion to reopen the matter based on the new infOQllatiQn submitt~d. Thus, the motion to reopen is granted. The procedural histoty in this case is documented by the record and incorporated into the clecision. Further elaboration of the proced11ral histoty will be made only as necessary, The tecotd shows that the motion is properly filed, timely and makes a specific allegation· of error in law or fact. 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 evide11ce in the record, including new evidence properly submitted upon appeal.1 As set forth in the director's October 19, 2007 and May .26, 2010 decisions and the AAO's JUile 13, 2012 decision, the issue in this case is whether the petitioper has established his ability to pay tbe proffered wage as of the priority date and continuing until the beneficiary obtains lawful perlila,nent residence, · 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 . ernployrneilt-based immigrant which reqQires ~.11 ·offer of employment must be 1 The submission Of additional evidence on appeal is allowed by t.he inst.ructions to the Fotni I-290B, which are incorporated into the regulations by the regulation at 8 C.l".R .. § lO~.Z(a)(l). T.he record in the instant case provides no reason to preclude consideration of any of the documents · newly submitted on appeal. See Matter o/ Soriano, 19 I&N Dec. 764 (BIA 1988). p. 3 NON-PRECEDENT DECiSION · accomp~ed by evidence that the prospective United States employer has tbe ability to pay tbe proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until· the beneficiary obtains lawful peiliianent residence. Evidence of this ability !ih~l be either in the fo11ll of copie~ of annual reports, federal tax return~, or audited financial statements.
The petitioner must demonstrate the continuing ability to pay the proffered w~ge beginning on the priority date, which. is the date the ETA Form 9089 was actepted for processing by any office within the employment .system of th,e DOL. See 8 C.F.R. § 204.5( d). Here, the ETA Forlil 9089 . was accepted on February 8, 2007. . The proffered wage as stated on the ETA Form 9089 is $3LZO per hour ($64·,896.00 per year).
The evidence in the record of proceeding shows that the petitioner is structured as a sole proprietorship. On the petition, the petitioner claimed to currently employ six workers. On the ETA Form 9089 the beneficiary <;laims to have been employed by the petitioner for 32 hours per week since November 30, 2006. ·
In the AAO's June 13, 2012 decision, we specifically reviewed evidence of the petitioner's ability to pay 'both the proffered wage and his personal household expenses in the form of Internal Revenue ServiCe (IRS) ForiilS W•2 from 2007 through ZOIO apd the petitioner's IRS Forms 1040. Tbe AAO's decision stated that the petitioner did not establi~h its ability to pay the proffered wage in any of the ye~s for which evidence was submitted.. In addition to Forms W "'2. stating wages paid by the petitioner to the beneficiary of $39,144.08 in 2007, $39,837.83 in zoos, and $38,584.92 -in 2009 and 2010 paystubs Stating wages paid through J11ne of $18,510.30, the AAO de~ision examined the petitioner's adjusted gross income to detetliline whether it was an amount sufficient to allow the petitioner to meet the llousehold obligations and pay the proffered wage.2 Specifically, the AAO deCision cited inconsistencies in the household expenses claimed by the petitioner such as a failure to consistently list education expe11ses, auto~obile insurance expense, or credit ca_rd expenses for t]le relevant years and a discrepancy between the medical expenses, property tax, and .state tax listed on the h.o11_sehold expenses when compared to the sole proprietor's Forms 1040 Schedule A fot the relevant years. the AAO's previous decision cited Matter of'Ho, 19 I&N Dec. 582 (BIA 1988), and requested evidence to resolve the discrepancies.Inconsistencies in the record No suc_h evidence was submitted with the instant motions.
(b)(6) NON-PRECEDENT DECISION
· In addition, the previous AAO decision stated that the petitioner had not demonsttated its ability to pay the proffered wage because USC IS electronic records indicate that the petitioner has filed additional ·irmnigrant ~d non-immigrant petitioiJ..~ which have been pending simultaneously. The previous AAO decision specifically stated that the petitioner must derru:mStrate its ability to pay the proffered wage to all sponsored workers. No such evidence was submitted with the instant motio11.
With the iilstaiit motion, the sole proprietor submitted IRS Fotms W-2 reflecting that he paid the beneficiary $42,170.30 in 2010, $43,680.00 in 2011, and $46,166.76 in 2012. These amounts are all less than the proffered wage; in 201 O, the deficiency is $2~, 72S, 70; in 2011, th~ deficiency is $21,216.00; in 2012, the deficiency is $18,729.24. The .sole proprietor al~o ·submitted his 2010 and 2011 IRS Form 1040 stating adjusted gross income of $153,737 and $161,411, respectively. The petitioner did not submit a ~tement o{ household expenses for those years nor did it submit evidence of the other .sponsored workers' proffereli and actual wages so that we are unable to determine whether the petitioner had the ability to pay the proffered wage to the instant beneficiary for these years. 3 · With the motion, the petitioner argues that the company's net income should be used to calcUlate the petitioner's ability to pay the proffered wage. As stated above, the petitioner is a sole proprietor. As a result, the company's funds are not separate from its owner; income, credit, ded11ctions, f;Uld the lilce ~e reported on the personal tax return, the IRS Form 1040. the sole proprietor, therefore, must demonstrate his ability to meet all of b.i.s ho11sehold fiiumcial obligations as well as · the obligation to pay the profiered wage. The company's net inco_me cannot be considered in · isolation. As stated above, the sole proprietor did not submit evidence dei;JlOIJ.s1nlting his . ability t.o meet his ho'usehold obligations as well as his obligation to pay the proffered wage to the instant beneficiary or tb.e other sponsored workers. · USC IS may consider .the overall magnitude of · the petitioner's . business activities ifi its detennination of the petitioner's ability to pay Uu: proffered wage. See Matter of Sonegawa, 12I&NDec. 612. The petitioiling entity in Sonegawa had been in businessfor over 11 ye~s apd routinely earned a gross annual income of about $1 00,000. During the year. iii 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 mont:b.s. There were large moving costs and also a period' of time when the .petitioner was umible to do regular business. The Regiollal Corr:tmjssiqner deterinlned that the petitioner's prospects for a resurnption''' of successful b.usiness operations were well established. The petitioner was a fashion designer whose work had been featOted in Time and Look magazines. ffer c;lients 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 3 As the petitioner did not resolve the inconsistencies betWeen his Schedule A expenses a.I.ld statement of household expenses noted in the previous AAO decision, we Will not extrapolate from the expenses in 2007 through 2010 to determine whether he had ~u.ffi.cj{!I)t AGI to cover l;>oth the proffered wage and his personal household expenses in 2011.
NON-PRECEDENT DECiSION 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 fi.nCll1ci~ ability that falls outside of a petitioner's net iJJ.com~ and net current assets. USCIS may consider such factors ~ 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 ind~try, whether the beneficiary is replacing a fop:ner employee or an outsourced service, or any ot1)er evidence that USCIS deems relevimt to the petitioner's ability to pay the proffered wage.
In a.ssessing the totality of the circu:mstances in tbis ca.se, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered wage. As stated in the previous AAO decision, there are no facts paralleling those 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. Nor has the petitioner demonstrated the occurrence of any lincharacteristic bu.siness expenditures or losses d\l.riilg the relevant years_. · The petitioner has not submitted evidence to establish that the beneficiary is replacing a former employee whose primary duties wei:e described in the ETA Fonn 9089. Showing that the company's net inCOille exceeds the proffered wage is :inSufficient as a sole proprietor must also demonstrate his ability to meet his household financial obligations as welL Finally, the record contains unresolVed inconsistencies pertaining to the petitioner's. claimed annual household expenses and his failure to account for the simultaneously pending immigrant petitions. Thus, assessing the totality of the cii:cUiilstances in this. individual ca,se, it -is concluded ,that the petitioner has not established that it had the continuing ability to pay the proffered wage.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner ha.s not met th.at burden.
ORDER: The motion to reopen is grililted and the decision of the AAO dated June 13, 2012 is affil1lled, The petition remains denied.