Immigrant Petition for Alien Worker as a Member of the Pro(essions Holding an Advanced 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 hiw not establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law ot poli.cy to your case pr if you seek to present new facts for consideration, you may file a motion tb reconsider or a niotiori to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-2908) within 33 days of the date of this decision.. Please review the For,m I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, tiling locathm, - ~~«1 other requirements. See also 8 C.F.R. § 103.5 .. Do not tile a motion directly with the AAO. www.uscis.gov
DISCUSSION; The Director, Nebraska Service Center, denied the immigrant Visa petition apd the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
Th~ petitioner is a dairy farm. It seeks to employ the beneficiary perrtlanently in the United States as an agricultural technologist. As required by statute, ETA Forin 9089, Application for Petrnanent Employment Certification, approved by the United States Department of Labor (DOL), accompanied the petition. The director detefinined 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 an,cJ denied the petition accordingly on August 8, 2013.
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. The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 F3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.1 lp pertinent part, section 203(b )(2) of the Act provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States. An advanced degree is a United States academic or professional degree or a foreign equivalent degree above t_he baccala_ureate leveL 8 C.F.R. § 204.5(k)(2). The regulation further states: ''A United States baccalaureate degree or a foreign_ equivalem · degree followed b.y at least five years' of progressive experience in the specialty shall be considered th~ equivalent of a master's degree. l_f a doctoral degree is customarlly required by the -specialty , the alien must have a United States doctorate or a foreig11 equivalent degree.'' !d. .
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 tiine the priority date is established . and continuing ul)til 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 ·submission of additional evidence on appeal is (l.llowed by the instructions to the Form I-290B, which are incorporated into the regulations by the reg-ulation at 8 C.F.R. § 103.2(a)(1). The record in the i_nstant case provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). ' p. 3 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 Fonn 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 Corilrtl'r 1977). Here, the ETA Form 9089 was accepted on May 31, 2012, which establishes the priority date. The proffered wage c:ts ~tc:tted on the ETA Form 9089 is $52,894.40 per year. The ETA Form 9089 states that the position require's a person with a Master's degree in Agricultl.l!e, Agrono111y or related and 24 months of experience in the job offered as an agricultural technologist. The acceptable alternate field of study is also described as agriculture, agronomy or related. The job duties described on H.11 of the ETA Form 9089 entail the study of nutrition and development of farm animals, utilizing cattle breeding technology, preventing disease, increasing milk production and improving the efficiency of the farm operation.
The record indicates the petitioner is structlired as a general partnership and filed its tax returns on IRS Form 1065, U.S. Return of Partnership Income. 2 On Part 5 of the petition, the petitioner claimed to have been ,established in 1951 and to currently employ four workers~ It claims a gross annual income of$1,035,589 and a net income of -$46,573.
According to the tax returns in the record, the petitioner's fiscal year is based on a standard calendar year. On the ETA Form 9089, signed by the beneficiary on March 25, 2013, the beneficiary claims to have worked for the petitioner from October 1, 2007 to OCtober 01, 2013. 3 The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA F onn 9089 labor certification application establishes a priority date for any irilrtligrant 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, witil.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 ofGreat Wall, 16 I&N Dec. 142 (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 fmancial resources sufficient to pay the beneficiary's proffered wages, although the overall circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Collliil'r 1967).
In determining the petitioner's ability to pay the proffered wage during a given period, USCIS ·will first examine whet.her 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 tbe petitioner's ability to pay the proffered wage during that period. In the instant Case, the petitioner has provided two Wage and Tax Stiiitements (W-2s) that it issued to the beneficiary, representing wages paid to the beneficiary in 2010 and 2011. In 2010 the beneficiary was paid $33,176 and in 2011, the beneficiary was paid $33,176. On appeal, counsel mentions a W-2 that reflects wages paid of $32,109.25, but this W-2 has not been submitted to the record. Therefore, no W-2 evidence of annual wages paid in the year of the priority date or onward is contained in the record. 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 fedend income tc:p<. 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 Cit. 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. ElatosRestaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N,Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1.305 (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); Ube_da v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), aff'd, 703 F.2d 571 (7th CiL 1983). Reliance on the petitioner's wage expeose is mispl~ced . 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 depreci(ltion dedu.ction is a ~ystematic allocation of the cost of a tangible long-term asset and does not represent a specific cash expenditure during the year claimed. Furtheqnore, the AAO indicated th;lt 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 e.ither the dimin~tion 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 d.o not · represent current use of cash, neither do.es 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 "r~al" 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 Especialv. Napolitano, 696 F._ Supp. 2d at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses). The petitioner, through counsel, assert_s on appeal that the petitioner's line of credit should be considered. In calculating the al>ility to pay the proffered sa_Iary, USCIS will not augment the petitioner's net income or net current assets by adding irt the petitioner ' s credit limits, bank lines, or lines of credit. A ''bank line" or "line of credit" is a bank's unenforceable commitment to make loans to a particular borrower up to a specified maximum during a specified time period. A line of credit is not a contractual or legal obligation on the part of the bank. See John bownes and Jordan Elliot Goodman,
Barton 's Dictionary of Finance and Investment Terms 45 (5th ed. 1998).
Counsel's assertion that the petitioner's non-current assets including depreciable assets should have been CO!lsidered in the determination of the ability to pay the proffered wage as a source of collateral for a loan is not persuasive. These assets include depreciable assets that the petitioner uses in its business, including real property. Those depreciable assets will not be converted to cash during the ordinary course of business and will not, therefore, become funds available to pay the proffered . wage. Rather, as set forth above, USCIS will consider net current assets as an alternative method of demonstrating tpe ability to pay the proffered wage.
The petitioner has submitted copies ofits 2011 and 2012 federal income taJ.C return. The petitioner's tax returns stated its net income as detailed in the table below.
In 2011, the petitioner' •s IRS Form I 065 stated net income of$16,124 4 4 As the petitioner's tax return for 20 II predates the priority date of May 31, 2012, it is not as relevant as the 2012 return for this discussion. However, as part of the petitioner' overall financial profile,. it will be considered . . For a general partnership, where the partnership's income is exclusively from a trade or business, USCIS considers net income to be the figure shown ort Line 22 of page orte of the petitioner's IRS Form 1065, U.S. Return of Partnership Income. However, where the partnership has income, credits, deductions or other adjustments from sources other than ·a trade or business, they are reported on Schedule K. If the Schedule K has relevant entries for additional income or addjt_iona_l credits, deductions or other adjustments, net income is found on page 5 (2008·201Z) of IRS Form 1065 at line 1 of the Analysis of Net Income (Loss) of Schedule K. See Instructions for Form 1065, at http://www.irs.gov/pub/irs-pdf/i1065:pdf (indicating that Schedule K is a sumll).~ry schedule of all partners' shares of the partnership's income, deductions, credits, etc.}. In the instant p. 6 In 2012, the petitioner's IRS Form 1065 stated net income of -$69. r.
Therefore, for 2012, the petitioner did not establish that it had sufficient net income to pay the proffered wage.
If the net income the p~titioner 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.5 A partnership's yea..r-end current a.ssets are sbown on Schedule L, lines 1(d) through 6(d) and indude cash-on"'hand, inventories, and receivables expected to be converted to cash within one year. Its year-end current liabilities ate shown on lines 15( d) through
17( d). If the total of a partnership's end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to or grec,lter than the proffered wage, the petitioner is expected to be able to pay the proffered wage using those net current assets. The petitioner's tax returns stated its net current assets as detailed in the table below. In 2011, the petitioner's IRS Fottn ,I 065 stated net current assets of -$33,095.
In 2012, the petitioner's IRS Forni 1065 Stated net current assets of-$4,300.
Therefore, for the year 2012, the petitioner did not establish that it had sufficient net current assets to pay the proffered wage.
Thus, froin the date the ETA Form 9089 was accepted for processing by toe 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, ot its net income or net current assets.
USCIS may considerthe overall magnitude of the petitioner's business activities i_n its determination of the petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). The petitioning entity in Sonegawa had been in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in tbat case, the petitioner changed business ·lofations and paid rent on both . the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. The Regional Commissioner determined that the ·petitioner's prospects for a resumption of successful business operations were well established. ·The case, the petitioner's Schedule K for both 20 ~ l and 2012 has relevant entries for additional income, credits, deductions or other adjustments and, therefore, its net income is found on line 1 of the Analysis of Net income (loss) of Schedule K of its tax return.
· 5 According to Barron's Dictionary of Accounting Terms 117 (3rd ed. 2000), "current assets'' consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). !d. at 118. p. 7 petitioner was a fashion designer whose work had been featJ.u:ed in Time and Look magazines. Her clients 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 le9tured on fashion design at design and fashion shows throt~ghout the United States and at colleges and universities in California: The Regional Commissioner's determin~t.ion in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, USC IS may, at its discretion, consider evidence relevant to the petitioner's finMcial ability that falls Ol1t.side of~ petition~r's net income and net current assets. USCIS may consider such factors as the humber of years the petitioner has been doing business, the established historical growth . of the petitioner'S business, the overall number of employees, or the occurrence of any uncharacteristic business expenditures or losse~.
In the instant case, although the petitiOner is a long-standing dairy fatrn, the two tax returns submitted to the record show tbat its gross income declined by approximately six percent ftom 2011 to 2012 a.nd its net farm profit was reported as losses in both years. Although showing a modest net income in 2011, it was substantially less tha.n the proffered wage and wa.s reported as a loss in 2012. Both yea.rs' net current assets were represented as losses. . It is unclear how tbe petitioner reported wages paid to its four workers as neither return reflected deductions for salaries a.nd wages. Tbe record does . not indicate that analogous and unique circumstances are present in this case that are similar to those that prevailed in Sonegawa. Thus, assessing the overall circumstances in this individual case, it is concluded that the petitioner has not established th_at it has had the continuing ability to pay the proffered wage.
The evidence su.bmitted does not esta.bljsh that the petitioner had the continuing ability to pay the proffered wage beginning on the priority date.
Beyond the decision of the director, the petitioner has not established that the beneficiary possesses the advanced degree required by the terms of the labor certification and visa classification because none of the educational credentials in the foreign language are accompanied by a certified English translation as required by the terms of 8 C.F.R. § 103.2(b )(3):
Tra.nslations .. An~ document cont~ining foreign lan~age su_pmitted to [USCIS] shall be a.ccompamed by a full English language translatiOn whtch the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English.
Additionally, the petitioner nas not demonstrated that he possesses the required two years of work experience as required by the terms of the labor certification See 8 C.F.R. § 204.5(g)(1). The petiti?ner musL'demonst~a~e that, on the priority pat~, the b~nefid~ry ha.d the_ ~ualifica.tion.ssta~ed on its ETA Form 9089 as certtfted by the DOL and submttted wtth the mstant petition. Mattet of Wzng's Tea House, 16 I&N Dec. 158 (Acting Reg'l Comm'r 1977). The employment verification documents contain the following defiCiencies:
1. Undated letter from agricultural firm, affiliate stating the
August 2001 to July 2003 period that the beneficiary worked for it as a head agriculturist and describing his duties, but it fails to specify whether the employment is part-time or full-time and fails to identify the author's name in accordance with C.F.R. § 204.5(g)(1), 2. May 12, 2009 "Archival Certificate" stating that the beneficiary worked for the agricultural firm as a head agriculturist from January 26, 2000 to M&tch 25, 2000. The certificate is signed by the head of archives but th~ certificate fails to describe the beneficiary;s duties or state whether employment was part-time or full-time in accord .a.nce with C.F.R. § 204.5(g)(l).
3. Ma 25, 2009 "Archival Certificate" stating that the beneficiary worked for the from April5, 1999 to January 13, 2000 as the head of agricultural team. The certificate is signed by the head of archives b11t the certificate fails to describe the beneficiary's duties or state whether employment was part-ti.me or full-time i.n ~ccordance with C.F.R. § 204.5(g)(1) .
. Based on the current record, the AAO does not find that. the . petitioner has .established that the beneficiary possessed two full-time years Of work experience in the job o{fered. Going on .record witbo11t Sl!pporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190(Reg. Comm. 1972)).
In view of the foregoing, it is concluded that the petitioner has· failed to estaiJlish that it b~s the continuing ability to pay the proffered wage, from the priority date onward, and has failed to establish that the beneficiary has the educational credentials and the employment experience in the job offered to qualify for the advanced degree. professional visa classification. l An applicatiOn or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initi'!-.1 decision. See Spencer Enterprises, Inc. v. United States, 299 F. Supp . . 2d 1025, 1043 (E.D. Cal. 2001) , aff'd. 345 F.3d 683 (9th Cir. 2003); see also, Soltane v. DOJ, 381 F.3d l43, 145 (3d Cir. 2004)(recognizing de novo review authority of the AAO).
The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. 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 b¢en met.
ORDER: The