Degree or an Alien of Ex:Ceptional Abi.lity Pursuant to Section 203(b )(2) of the Immigration arid Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BElfALF OF PETITIONER:
INSTRUCfiONS:
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~ptecedent decisions. If you believe the AAO incorrectly applie<f <:tJrrent law or policy to your Ca$e. or if you seek to present new facts for consideration, yo(! may file a motion to reconsider or a motion to reopen, respectively. Any motion mt~st be filed on a Notice of Appeal or Motion (Forl11 I~290a) within 33 days of the <fate of this decision. Please review the F9tlll. 1~290.8 i11st.ructions at . http://www.uscis.gov/forms for the latest information on fee, filing location, ~nd other requirements. See al$o 8 C.P.R.§ l03.5. ·Do not file a motion d'irectly with the AAO.
Thank you, k,
)ol"- r f~
Ron Rosenberg
Chief, Administrative Appeals Office www.usds.gov
. Page 2
DISCUSSION: The Director, Tex:as Service Center (director), denied t;he immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal wi.ll be dismissed.
The petitioner describes its business a,s software service; consulting and "BPO." It see~s to pen:nanent.ly employ the beneficiary in the United States as a software engineer. The petitioner requests classification of t_he beneficiary as an advanced degree profession~! ptusuant 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 has the minimum experience required to perform the proffered position, as stated on the labor certification. · ·
Procedural History
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Petrnanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). 1 The priority date of the petition is September.9, 2011.2 · Part H of the labor certification states that the offered position has the following minimum requirements:
H.4.
H.5.
H.6.
H.7.
H.8.
H.9.
H:lO.
H.l4.
Education: Bachelor's degree in computer science, math, engineering, business ot related. Training: None required.
Experience in the job offered: None required.
AlteQJ.;J.te field of study: Computer science, math, engin~ering, business or related.
Alternate c01nbinatioll of education and experience: Master's degree and three years of experience.
·Foreign educational equivalent: Accepted.
Experience i.n a11 alternate occupation: 60 months in . any .suitable software engineering oceupatiort. .
Specific skills ot other requirements: "Bachelor's degree (Computer Science, Math, Engineering, Business or related) plus 5 years progressively-responsible experienq~ in l3izTalk Server, C#, Visual Studio, Windows Server, and 3 years in BizTalk Business Activity Monitoring, BizTalk custom pipelines and custom ~dapters, SQL Server, VB.Net, and · WCF, 2 years in Microsoft Host Integration . Server, and 6 months in BizTalk Multi:Server Environment, BizTalk Server Accelerator for Rosetta Net, Microsoft ISA Server, SharePoint Server, and ShatePoint Services. In the alternative, employer will accept a related Masters degree plus 3 years experience in BizTalk Server, C#, Visual Studio, Windows Server, BizTalk Business Activity .Monitoring, BizTalk custom pipelines and 1 See section 212(a)(5)(b) of the Act, 8 U.S.C. § i182(a)(5)(D); see also 8 C.P.R.§ 204.5(a)(2) , 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.P.R. § 204.5(d).
Pagt! 3
~ustom adapters, SOL Server, VB.Net, and WCF, 2 years in Microsoft Host Integration Server and 6 months in BizTalk MultiServer Environment, BizTalk Server Accelerator for Rosetta Net, Microsoft ISA Server, SharePoint Server, and SharePoint Services."
Part J of the labor certification states that the beneficiary poss.esses a master's degtee in engineering science from conipleted in 2004. The record contains a copy of the beneficiary's and transcripts from issued in 2004.
Part K of the labor certification states. that the .beneficiary possesses the following employment experience:
- Software Engineer wit] in Troy, Michigan from February 15, 2010 until September 10, 2010;
- Microsoft. Tech Specialist with in Stamford, Connectietit from February 5, 2009 until January 22, 2.010:
- BiZTalk DevelOper with in Mountain View, California from May 7, 2008 until February 4, 2009; and
- Software
Engineer Witt ln Troy, Michigan from April 1, 2005 until M.c,ty 1, 2008.
The record .contains an experienCe letter from the Vice President of stating that the beneficiary was employed as a software engineer from April 2005 to May 2008 and from March 2010 to September 2010; a letter from the Vice President of Operations .of ~ stati.ng that the beneficiary was employed as a Microsoft Technolo~es Specialist from February 5, 2009 until January 22, 2010; and a letter from the IT Director, stating that the beneficiary was employed as a Biztalk Developer "for almost a year."
The director's. qecision denying the petition stated that the petitioner had not established that the beneficiary had the required experienCe as stated on the labor certification .and that the petitioner had not established its ~bility to pay all of its sponsored Form 1-140 beneficiary's the prevailing wage. The di.rector also found that the beneficiary willfully misrepresented his claimed experience. Oh appeal, the petitioner states that the beneficiary did not misrepresent his experience, that the beneficiary possesses the required experience and that the petitioner has established its ability to pay the beneficiary the proffered wage.
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 3 See 5 U.S.C.: 557(b) ("On appeal from or .review of the initial decision, the agency has c,tll the powers which it would have irt making the initial decision except as it may limit the issues on notice or by rule."); see also Jan.hl 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 couft&. See, e.g., Soltane v. p. 4 the reco-rd, including new evidence properly submitted upon appeal.4 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 (lll of the grounds for denial in the initial decision. 5 II. lAW AND ANALYSIS
The petitioner must establish that the beneficiary satisfied all of the educational, training, experi~nc.e and any other requirements of the offered position by t_h~ priority date. 8 C.P.R. § 103.2(b)(l), (12). See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. Comm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45·, 49 (Reg. Comm. 1971). In evaluating the job offer portion of tbe la,bor certification to deterinine the required qualifica,tions for the position, USCIS rnay not ignore a: term of the labor certification, nor may it impose additional requirements. See M~dany, 696 F.2d at 1008~ K.RK. Irvine, Jnc., 699 F.2d at 1006; Stewart Infra-Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
Where th~ job requirements in a labor certification are not otherwise unambiguously prescribed, e.g., by tegulatio _n, USCIS must exa.m_ine ''the language of_the labor certification job requirements" iD order to determine what the petitioner must demonstrate about the beneficiary's qualifications. Madt:my, 696 F.Zd 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 Linde.tl Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) (emphasis added). USClS's interpr¢tation of thejob's requjrements, as stated on the labor certification must involve "reading a.nd applying the plain languag~ Of the [labor certification]." /d. at 834 (emphasis added). USCIS ca.n11ot a.nd should not reasonably be expected to look beyond the pla.ill la.nguage of the labor certification or otherwise a,ttempt to divine the employer's intentions through sorne sort of reverse engineering of the labor certification. Eve11 though the labor certification may be prepared with the beneficiary in mind, USClS has an independent role in determining whether the beneficiary meets the labor certifica.tjon requirements. See Snapnames.com, Inc. v. Michael Chettojf; 2006 WL 3491005 *1 (D. Or. Nov. 30, 2006).
In the instant case, the labor certification states tha.t the offered position requires a master's degree and three years of experience, or a bachelor's degree and five years of experience. As noted above, the benefici_ary possesses a master's degree. Therefore, the petitioner ifitJ,st also establish that the beneficiary possesses the required thtee years of experience.
DOJ, 381 F.3d 143, 145 (3d Cir. 2004). . .
P<~.ge5
Eyidence relating to qualifying experience must be in the follll of a letter from a current or former ~IJlployer and must include the name, address, and title of the writer, and a specific description of the duties performed by tbe beiJeficiary. 8. C.F.R. § 204.5(g)(1). If such evidence is unavailable, USCIS may consider other documentation relating to the benefici~ryis e~perience. !d.
As noted above, tbe beneficiary claims the following experience: in Troy, Micbigap from February 15, 2010 • Software Engineer with uiJtil Sept~rober 10, 2010; ------------------
- Microsoft Tech Specialist wit:
2009 until January22,2010:
- BizTalk Developer with
February 4, 2009; and
- Software
Engineer with ln Stamford, Connecticut from February 5, iri Mountain View, California from May 7, 2008 UIJtil in Troy, Michigan from April1, 2005 UIJtil May 1, 2008.
The record contains ail experience letter frOIIl the Vice President of stating that the beneficiary was employed as a softWare engineer from April 2005 to May 2008 and from March 2010 to September 20l0; a letter from the Vice President of Operations of stating t:hat the beneficiary was eiilployed lis a Microsoft Techn~es Specialist from February 5, 2009 until January 22; 2010; and a letter from the IT Director, stating that the be.netic,:ia,ry was eiJlployed as a Biztalk Developer "for almost a year."
The letter from ioes not cont_aiiJ the begin.qing and end dates of employment al)d t_herefore this letter is insufficient to establish t:hat the beneficiary has the claimed experience. Ftuthetrnore, the letter states that the beneficiary gained exp~rience in BizTalk Server, C#, Visual ~tudio; Windows Setvet, SQL Server, :ijizTalk: MultiServer Environment, BizTalk Server Acceietator for Rosetta Net, Microsoft ISA Server; however, as the letter does not contain the dates of employment; tbe letter is not suffici~nt to establlsh that the beneficiary had the required number of years of experience in the listed Specific skills, ·as required by the terms of H.i 4 of the labor certification. We do note that the petitioner submitted the beneficicrry's Form W-2 Wage and Tax Statement Transcript that was certified and issued by the Internal Revenue Service (IRS) showing that the beneficiary was paid during the 2008 and 2009 calendar years.· However, this does not provide information on the dates of employment and cannot serVe to confitm the actuallen~h of employment.
The letter frolll meets the requirements of the regulation and corroborates the experience chtimed on the labor certification. As such, the letter serves as evidence that the beneficiary has 11 months and two Weeks of experience with this elllployer as a Microsoft Tech Specialist; which is less than tbe 36 months required by the labor certification. Specifi_cally the letter, which ·only attests to 11 month and two weeks of experienc,:e, notes that the beneficiary has experience with BizTalk Server, C#, Windows Server, SQL Server, VB.Net, SharePoint Server, and ShatePoint Services. This satisfies the labor certification requirement of 6 months of experience iiJ SharePoint Server and SharePoint Services but does not meet the requi_rements of three years of p. 6 ~xperience in BizTalk Server, C#, Visual Studio, Windows Serve~, BizTalk Business Activity Monitoring, BizTalk c1,1stom pipelines and custom adapters, SQL Server, VB,Net, and WCF, the requirement of two years' experience in Microsoft Host Integration Server Of the r_equirement of six months' <;:xp~rience with BizTalk MultiServer Environment, BizTalk Server Accelerator for Rosetta Net, and Microsoft ISA Server.
Regarding the beneficiary's experience with tbe director identified several inconsistencies in the record and notified the petitioner of the inconsist~ncies a11d discrepancies in a notice of intent to deny (NOID).Inconsistencies in the record Specifically, on the labor certification the beneficiary states that he worked for from February 15, 2010 until September 10, 2010; however, the director notes that wa.s r~gistered in the State of Michigan on March 13, 2007 a_n.d was automatically dissolved on July 15; 2011 for faih~re to file their 2009 through 2011 annual reports, While may have failed to file their annual report for 2010, it was still an actiVe corporation in Michigan in. 2010, as it was not dissolved until July 15, 2011. The petitioner has also submitted other documentary evidence of existence as an operational compnay, including its corporate tax returns for 2009 and 2010, annual reports for 2009 to 2011, copy of renter's instJra,nce policy, paystubs and Forms W-2 showing _>aying the beneficiary wages and evidence of other H-1Bs filed by with USCIS in 2010. The evidence in the record indicates that it is more likely than not that ' was conducting business in 2010 when the benficiary clai_ms to have worked there. 6
The director further noted that the experience letter from states that the beneficairy began working there in March 2010, not in February 2010 as reported on the labor certification. The tecotd contains an affadavit from the beneficiary dated. February 24, 2012 which states that the benficiary worked for from March 2010 to September 2010. The record does not cop.tain a,n e~planation for this inconsistency. It is incumben.t upon the petitioner to resolve any inconsistencies i11 the record by independent objective evid~nce, 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). In response to the director's NOID, the petitioner submited paystubs from showing that the beneficiary was first paid on May 18, 2010 for a pay period running from March l, 2010 to March 31, 2010 and last paid on October 6, 2010 for a pay period running September l, 2010 to Septemebr 15, 2010. the petitioner also submitted the benefiicary's bank account statements showing electronic deposits froro starting on May 18, 2010 (the payday for the March 1, 2010 to March 31, 2010 pay period) and ending on October 6, 2010. The petitioner futher submitted certified Wage and Income Transcripts
the record of proceeding fails to establish the beneficiary's start date, as he evidence provid~d only indicates a pay period Of March 1 to March 31, 2010, and not the actual first day of employment. · The director also qu~stioned role as the beneficiary's former emplo er. The d.irector noted that during the time the beneficia,ry claims to have worked for he was actually working at third party client sites. The director concludes tba,t a,s did not exceriSe contrOl over the beneiciary'swork, it was the third party clients, not that woJ,J,ld be considered the beneficiary's prior employer and which would have first-hand knowledge of the beneficiary's work experience and skills. We also note, that as the record does I!Ot establish that was in a position to attest to the beneficiary's experience, the letter does not serve as su,f{icient evidence that the beneficiary has the required experience in the specific skills listed in section H.14 of the labor certification.
On appeal, the petitioner ~ubmits a letter from an Account Executive at , dated February 16, 2012 sta,ting that he had personal knowledge of that he partnered with from March 15, 2010 to September 12, 2010, that employees provided software development to from March 15, 2010 to Septemebr 12, 2010, and that he witnessed the benefj~iary providing services pursuant to the agreement between The petitioner also submits a letter from a Manager at the · dated February 15, 2012, stating that the beneficia,ry had been serving as a contractor on their project based in Lake Oswego, Oregon since Marc_h 15, 2010. the letter describes the beneficiary's day..,to-da,y-duties but also states ''please note that no employer"employee relati~nship between exists between [the beneficairy] and has cOntracted with the firm which placed [the beneficiary]."
It appears that contracted with who placed employees, including the beneficiary, with from March 15, 2010 to September 12, 2010. While the letter {ro111 denies any employment relationship with the beneficiary, it appears to indicate tha:t was the beneficiary's employer. At best, the record is ooclear as to which company was actually controlling the beneficiary's work and which has the knowledge to attest to the beneficairy's experience. Furthermore, the letter from is dated February 15, 2012 and states that the beneficiary has been employed "since March 15, 2010." This is inconsistent with the other dates of employment in the record. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independ.¢!lt objective evidence. Any attempt to explain or reconcile such inconsistencies .,will not suffice unless the petitioner submits competent objective evidence pointing to wbere the truth lies. Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988).
Therefore, the evidence in the record is insufficient to establish that the beneficiary has the claimed experience with from March 2010 to September 2010.
Regarding the beneficiary's employment with from April 1, 2005 to May 1, 2008, the director states th.at was not the beneficiary's actual employer during that time period and _ also concludes that the beneficiary willfully misrepresented the dates of his employment. On the labor certification, the beneficiary daims to have been employed by from April1, 2005 to May 1, 2008. The experience letter from . confirms these dates of employment. In th~ director's NOID, the director notified the petitioner that according to the bendicia,ry's non imm_igr'!,nt record, the beneficiary stated on an H-1B filing that he began working fof in Match 2006. From this, the director found that the beneficiary had misrepresented his prior experience on the ETA 9089. On appeal, counsel asserts that the beneficiary started working for in H.-1B status in March 2006 and that prior to that he worked for in OPT tsatus. CoOilsel states that he while he does not have access to the benficiary's non-immigrant filings, the questions aSked on the requited H-lB Form ].,.129 pertain to tbe beneficiary reporting prior H-lB status; not a history of employment. As the beneficiary Was granted H.,.1B status in March 2006, .it is likely this date that he reported and this information therefore does not contradict the prior employment claimed on the ETA 9089. Counsel's assertions are supported by the ben-eficiary's non-immigrant record and we find that there. has been insufficient development of the facts in order to support a finding of willful misrepresentation. Furthermore, the petitioner has submitted paystubs, bank retards, and IRS Wage and Tax Transcripts for the beneficiary from 2005 through 2008, confirming that the beneficiary was first paid by on M"'Y 10, 2005 for the pay period run,ning April 1, 2005 to April 30, 2005. Therefore, the petitioner has provided objective documentary evidence that appears to overcome the dire~tor's doubts about the beneficiary's employment start date.
However, as was discussed above, the evi{ience in the record does not establish that was the beneficiary's actual employer with the first-hand knowledge to attest to the benefiicary's claimed experience. The director therefore found that the letter from was not sufficieP-t that the beneficiary had the required experiepce, because it was not clear from the record that controlled the beneficiary's work or that the signatory Was in a position to attest to the· beneficiary's experience and skills. In response to the director's NOID, the petitioner StJhmitted an affadavit from a former BizTalk Developer with dated February 11,
2012, stating t_hat be witnessed the beneficiary providing ·IT consulting services to _ between August 2006 and February 2008, and that · he had personal knowledge of the business activity of '
The letter states that the beneficiary worked at _ from August 2006 to February 2008;
Ther~fore; the submitted experience letters do not establish that the beneficia..ry··possessed the required experience for the offered position. We concur with the director's finding that the petitioner has not established that the beneficiary has the required 36 months of experience in the job offered and further note that the record does not establish that the beneficiary has. the a..mount of experience in the special skills that were required in box H.14 of the labor certification. However, the director's finding of fraud will be Withdrawn. The petitioner failed to establish that the beneficiary passessed the mln1mum requirements of the offen!d positio~ set forth on the labor certification by the priority date. Accordingly, the petition must be denied for this reason.
. . . '
The . petitioner must also establish its ability to pay tbe beneficiary the proffered wage from the priority date onward. 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 a..n offer of employment must be accompanied by evidence that the prospective United States employer bas tbe 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 i.n the form of copies of annual reports, federal tax returns, or audited financial statements.
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 circUinstances affecting the petitioning business will be considered if the evidence warrants such consideration. See MattetofSonegawa, 12 I&N Dec. 612 (Reg'lComm'r 1967).
IJJ. determining the petitioner's ability to pay the. proffered wage during a given period, USCIS will --first examine whether the petitioner employed and p~id 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 ~bility to pay the proffered wage. In the instant case, the petitioner demonstrated that it paid the beneficiary $83,500.12, in 20q and $65,088.92 in 2012, which is $8,499.88 a,n,d $26,911.08, respectively, less than the proffered wage.7 Thus; the petitioner must demonstrate that it can pay the difference between wages actually p~id to the beneficiary and the proffered wage in 2011 and 2012.
If the petitioperdoes not establish that it employed ~.nd p~id 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. Napolitqno, 558 F.3d 111 (151 Cit. 2009); Taco Especial v. Napolitano , 696 F. Supp. 2d 873 (E.D. Mich. '2010), aff'd, No. 10-1517 (6th Cit. filed. Nov. 10, 2011 ). Reliance on federal income tax returns as a basis for detenn.ir_ring a petitioner's ability to P<lY the proffered wage is well established by judicial precedent. Elatos Restau,ran_t Corp. v. Sava, 632 F. Supp. 1049, 10$4 (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. Tex.~s 1989); K.C.P; Food Co., Int. v. SCI:vtl, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. IlL 1982), aff'd , 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's gross receipts exceeded the proffered wage is in~ufficient. Similarly, showing that the petitioner paid wages in excess of the proffered wage is insufficient.
In K.C.P. Food Co,, Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigtat.ion and Naturalization Service, now USCIS, had properly relied on the petitioner's net income figure, as stilted on the petitioner's corporate income tax returns, rather than the petitioner's gross income. The co:urt spedfically rejected the argument that USCIS should have considered income before expens.es we.-e paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. Zd 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:
Page 1l
NON-PRECEDENT DECISION
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 depredation represents an actual cost of doing business, which could represent either fbe diminution in value of buildingS and eq1.1ipment or the accumulation of funds necessary to replace perishable equipment and buildip.gs. 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 expl~nation for its policy of not adcii:ng depreciation b~ck to net income. Namely, that the amount spent on a long term tangible asset is a "real" expense. ·
River Street Donuts at 118, ''[USCIS] and judicial precedent sl.lpport the use of tax returns and t.be net income figures in determining petitioner's ability to pay. Plaintiffs' argument that these figures shol.lld be revised by the court by adding back depreciation is without support." Chi~Feng Chang at 537 (emphasis added).
Tb_e record before the director closed on March 8, 2012 with the receipt by the director of the petitioner's submissions in response to the director's notice of intent to deny. As of that d~te, t.he petitioner's 2012 federal income tax return was not yet due. In response to an request for evidence from the AAO, the petitioner subsequently submitted its 2012 tax returns. Therefore, the petitioner's income t~ return· for 2012 is the most recent return available. The petitioner's tax returns demonstrate its net income for 2011 and 2012, as shown in the table below.
- ln 2011, the Form 1120S stated net income8 of $2,360,819.
- In 2012, the Form 1120S stated net income of $1,618,291.
Therefore, for tbe years 2011 and 2012, it appears that the petitioner may have had sufficient net . iricome to pay the proffered wage to the instant beneficiary.
However, a~rdi11g to USCIS records, the petitioner· has filed over 200 1·140 petitions on behalf of other beneficiaries. 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 ofGreat Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977).
The record contains a chart documenting the priority date, proffered wage, wages paid, status of the petition and. whether or not a beneficiary has become a legal permanent resident, for '!,ll other sponsor.ed beneficiaries for 2010 and 2011. The record also contains IRS Forms W-2 issued to each ~enefici(!,fy l;lS evidence of the wages paid in those years. The priority dt.~te for the in_~tant petition is in 2011, therefore, the information for 2010 is not material.
In the chart submitted by the petitioner for 2012, there are 289 Form I-140 petitions sponsored by the petitiouer. In the chart previously submitted, the petitioner only disclosed 108 Form 1-140 petitions.
The discrepancy appears to be that the chart covering 2010 and 2011 only includes those petitions that were filed in 2010 and 2011, and does not i.ncluae an analysis of all of the petitioner's outstapding wage obligations to beneficiaries whose petitions were filed prior to 2010 but who had not yet become legal permanent residents. Therefore, the information StJbmitted for 2011 is incomplete and does not establish that the petitioner had the ability to pay in that year. Also, i.n the 2012 chart, while it appears to be a more complete catalog of the petitioner's sponsored beneficiaries, the petitioner &ttempts to exclude all of the wages owed to beneficiaries who hCJ.ve · become legal permanent residents and who are no longer employed by the petitioner.
This is p. 13 users may consider the overall magnitude of the petitioner's business activities in its determin(ltio.o of the petitioner's ability to pay the proffered wage.9 In the instant case, as noted above, the record does not contain sufficient evidence concerning the petitioner's financial obligatio11s to all its sponso~ed beneficiaries. This lack of information precludes the AAO from conducting a totality of circumstances analysis. ·
Conclusion
In sunimary, the petitioner failed to est(lblish that the beneficiary possessed the experieiJ.Cf:! and specific skills required by the terms of the labor certification. Therefore, the beneficiary does not qu.ali.fy for classification as a member of the professions holdi11g an advanced degree under section 203(b)(2) of the Act. However; the facts in the record do not support a finding of fraud. The directoris decision denying the petition is affirmed in part and withdrawn in part.
The appeal will IJe 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 est(lblish eligibility for the immigration be:p.efit. sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Oti~~tie, 26 I&N Dec. 127, 128 (BIA 2013). Here, tha.t burden has not been met. ()RI>ER: The appeal is dismissed.
FURTHER ORDER: The director's finding of fraud is withdrawn.