Degree or an Alien of Exception~l 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 ple~e find the qeeisioo of the Adminisir~tive Appeals Office (AAO) in your case. This Is a non-precedent decision. The AAO d_oes .IJO.t anno\,lJ}ce new eoilstructions of law nor establish agency . policy through non-precedent decisions. If you believe the AAO incorrectly applieq 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 Ijlotjoil to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) withill 33 days of the date of this decision. Please r~view the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, 3_iid other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
~~/!It~.
Ron Rosenberg
Chief; Administrative Appe(J.Is Office www.uscis.gov
NON-PRECEDENT DECISiON
DISCUSSION: The approval of the preference visa petition was revoked by the Director, Texas Service Center. The subsequent appeal w~s dismissed by the Administrative Appeals Office (AAO). The matter is now before the AAO on a motion to reopen aJ1d reconsider. The motion to reopen and reconsider will be granted. The previous decision of the AAO will be aff.irmed, and the petition will be denied.
The petitioner is a computet technology compa_ny. It see.k_s to employ the beneficiary permanently in the United States as an engineer. As requited by statute, the petition is accompanied by ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (POL). The director determined that the petitioner had not established that it had the continuing abili~y to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director revoked the approval of the petjtion accordingly.
Tbe regul~Jion ~t 8 C.F.R_. § 103.5(a)(2) states, in pertinent part: "A motion to reopen must state the new facts to be provideq i_IJ the reopened proceeding and be supported by affidavits or other do~umentary evidenee." Additionally, a mqtion to reconsider must state the reasons for reconsideration (lnd be supported by any pertinent precedent decision~ to establish that the _decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of tbe initial decision. Further, aparty seeking to reopen a proceedJng be<Us a "heavy burden." INS v. Abudu, 485 U.S. at 110. The record shows that the motion is properly filed, timely, and provides new facts supported by evidence. The petition is reopened. 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 ditectot' s Ju~y 18, 2012 revocation, the single 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 obt~in_s lawful permanent residence. - -Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(3)(A)(ii), provides for tbe granting of preference classification to qualified immigrants who hold baccalaureate degrees and are inemt>ers of ~he professions.
The regulation 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 tb-at 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.
NON-PRECEDENTDECISION
Pag~3
The petitioner must demonstrate the contintting ability tQ 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 employlllept 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 BTA Form 9089, Application fot Permanent Employment Certification, as certifi~d by t.he 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 November 24, 2009. The proffered wage as stated on the EtA Form 9089 is $36.00 per hour ($74,880 per year). The ETA Folill 9089 states that the position requires a master's degree in computer science, engineering, IT, bUsiness, math or a related fi~ld , or in tbe alternative a bachelor's degree in one of these fields and five yeats of progressive experience as a S.Qftware engin~er.
The AAO conducts appellate review oil a de novo basis. See Soltane v. DOJ, 38l F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the recotd, including new evidence properly submitted upon appeal. 1
The evidence in the tecotd of proceeding shows that the p~titioner is strttctured as a C corporation. On the petition, the petitioner · claimed to have been established in 2004; tQ h.ave a gros~ annual incqme of $1.5 million, and to currently employ 20 workers. According to the·.tax returns in the record, the petit_ioner ' s fiscal year is based on th~ calendar year. ~ The petitioner must establish that its job offer to the benefjciary is a realisti.c one. Because the filing of an ETA Form 9089 labor certification application estab.lishes a priority date fqr any immigrant petition later based on the ETA Form 9089, the petitioner must establish that the job offer was realistic a.s of t.he priority date and that the ·offer remained realistic for each yeat thereafter, until the beneficiary obtains lawful pellllanent residence. The petitioner's ability to pay the proffered wage is art 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't 1977); see also 8 C.F.R. § 4.04.5(g)(2), bi eval{Jating whether a job offer is realistic, United States Citizenship and llllniigratioii Services (USCIS) requires the petjtioner to demonstrate financial resourc.es sufficient to pay the beneficiary's proffered wages, l:l.ltbo\lgh the totality · of the circumstances affecting th~ petitioning business will be considered if the evidence warr(!nts such consideration. See Matter ofSonegawa, 12 I&N Dec. 612,614-15 (Reg'l Comm'r: 1967).
In det~rmin;ing the petitioner's ability to pay the proffered wage during a given period, USCIS will first examine whether the petitioner employed and paid tbe beneficiary during that period. If the · petitioner establishes by documentary ev'idenc~ tha.t it employed the beneficiary ~ at a salary equal to or greater than the proffered wage, the evidence will be considered prima. facie proof . of t.b~ peti(ioner's ability to pay the proffered wage. In the instant case, the petitioner: has not established 1 Tbe submission qf additional evidence on appeal is allowed by the instructions to the Form I~290B, which are incorporated into the regull,ltion at 8 C.F.R. § 103.2(a)(1 ). The record in the instant case provides no reason to preClude consideration of any of the documents newly s:ubmi~ted on flppeaL Se~ Matter of Soriano, 19 I&N De~. 764, 766 (BIA 1988). p. 4 that it employed and paid the beneficiary the full proffered wage from the priority date.Evidence submitted too late However, the record does contain two Forms W -2 issued by the petitioner to the beneficiary in the amount of $28,000 (2009) and $49,500 (2010).2 · · .
If the petitioner does not establish that it employed and paid the beneficiary an ~mount at least equal to the proffered wage . during that period, USCIS will next examine the net income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or other (!xpenses, . River St. [)onuJ$, LLC v. Napolitano, 558 F.3d 111, i18 (1st Cir. 2009); iaco Especial v. Napolitano, 696 F. Supp. 2d 873, 880 (E.D. Mich. :ZOlO), a.ff'c/, 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 Ch(Jng v; Thornburgh, 719 F. Supp. 532, 531 (N.D. Tex. 1989); K.C.P. Food Co., Inc. v. Savq, 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 sales and profits and wage expense is misplaced. Showing that the petitioner's groS$ sales a.nd profits · 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., Inc. v. Sava, 623 F. ·supp. at 1084, the court held that the Immigration ~nd Naturalization Service, now USCIS, had properly relied on the petitioner's net income figure, as stated on. the petitjoner'~ corporate income tax returns, rather than the petitioner's gross income. The court specifically r(!jected the argument t.h.at the Servjce sho~ld have considered Income before expenses were paid rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross profits ove.rstate an employer's ability to pay because it ignores other necessary expenses). With respect to depreciation, the court in River Stre{!t 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 <hiring 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 metbods .. .Nonetheless, the AAO explained that depreciation represents an a.ct~al cost of doi.ng busines$, . which could represent either the diminution in .value of buildings and equipment or the ~ccun:mJation of ·funds necessary to replace perishable equipment and buildings. Accordingly, tbe · 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 2 The deficiency betwee1.1 the proffered wag(! and the amount paid .is :-$46,880 in 2009 and .,$25,380 in2010. · p. 5 depreciation back to net income. Namely, that the amount spent on a long tenn tangible asset is a ''real" expense.
River St. Donuts, $58 F.3q &t 118. "[USCIS] and judicial precedent support the use of tax returns and the net income fi'gut~s in detennining petitioner) ability to pay. Plaintiffs' argument that these figures Should be revised by the court by adding back deprecia.tion is without support.'' Chi-Feng Chang, 719 F. Supp. at 537 (emphasis added). . .
For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the IRS Forin 1120, U.S. Corpor<J.tion Income T<J.x Return. The record before the director closed on December 19, 2011 with the receipt by the director of the petitioner's su,b.missions in response to the director's notice of inten.t to revoke. As of that date, the petitiorter' ·s 2011 federal income tax retl.lrn was not yet due. Therefore; the petitioner's income tax return for 2010 is the most recent return available. The petitioner's tax returns demonstrate its net income for 2009 and 2010, as shown in the table below.
- ln 2009, tb~ Foqn 1120 sta_ted net income of $10,276.
- In 2010, the Form 1120 stated net income of $3,891.
Tberefore, for the ye_&rs 2009 and 2010, the petitioner did ·not have sufficient net income to pay the difference between the proffered wage and tbe '!..ri10unts. paid to the beneficiary.
If the net income the petitioner demonstrates it had available during that period, ifany, added to t.be wages paid to the beneficiary during the period, if any, do not equal the amount of the . proffered wage or more, USClS will review the petitioner;s net current assets. Net current assets are the difference betw~en the petitioner's current assets and current liabilities. 3 A corporation's year-end current assets are shown on Scbedule L, lines 1 through 6 and include cash-on-hand. Its year-end cu~rent liabilities are shoWn on lines 16 through 18. If the total of <J. corpora.tion'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 petitioner's taX. returns demonstrate its end-of-year net c.urrent assets for 2009 and 2010, as shown in the table below.
- In 2009, the Foim 1120 stated net current ·assets of $33,624.
- In 2010, the Form 1120 stated net current assets of $0.
Therefore, for the years 2009 and 2010, the petitioner did not have sufficient net current assets to pay the difference between the proffered wage and the amounts paid to the beneficiary.
Counsel asserts in his brief accompanying the motion that there is another way to determine the petitioner's continuing ability to pay the proffered wage from the priority date. Counsel requests consideration of the beneficiary's leave of absence in 2010. Counsel states that the petitioner paid the beneficiary rnore than the proffered wage for the months worked.
The petitioner did not submit paystubs to establish thc!.t tbe beneficiary earned the proffered wage durin the months worked in the year that the beneficiary took a leave of absence. Nor is the leave of absence documented. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these pioceedings.Claims not backed by documents Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg' I Comin'r 1972)). Thus, the AAO does not find that the petitioner paid the beneficiary the full proffered wage in 2010, the year that the claimed leave of absence occurred. Further, counsel cla.ims that the · petitioner has paid the beneficiary more than the prevailing wage; however, the record cont<lins no evidence of this c.lctiro, Without documentary evidence to support the claim, the aSsertions of Counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do not constitute evidence. · Matterof Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of Laurecmo, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). · Therefore, from t.be d(!te the ETA Form 9089 was accepted for processing by the DOL, the petitioner had not establisbed tba:t it h(!.d the contipuing ability to pay the beneficiary the proffered wage in 2009 and 2010 through an examination of wages pa.id to the beneficiary, or its net income or net current assets.
Counsel al~o requests consideration of the petitioner's bank statements, Counsel's reliance on the balanc;e in the petitioner's bank account is misplaced. First, bank statements are not among the three types of evidence, ¢nu_merated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered Wage. While this regulation allows a.dditional material "in appropriate cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.ER. § 204.5(g)(2) is inapplicabie or otherwise paints an inaccurate financial picture of the petitioner. Second, bank stateme]Jts sbow the amount in an account on a given date, and cannot show the sustainable ability to PliY a proffered wage. Third, no evidence was submitted to demonstrate that the funds reported on the petitioner's b~ smtemt:mts somehow reflect additional available funds that were not reflected on its taX retum(s), such as the petitioner's taxable income (income minus deductions) or the cash specified on Schedule L was considered above in determining the petitioner's net current assets.
Counsel also asserts that the beneficiary will earn sufficient income from the contracts that the beneficiary will work under to pay for his salary against the projection of future earnings, Matter of Great Wall, 16l&N Dec.142, 144-145 (Acting Reg'i Comm'r 1977), states:
I do not feel, nor do I believe the Congress intended, that the petitioner; who admittedly could not pay the offered wage at the time the petition was filed, should subsequently become eligible to have the petition ~pproved under a new set of facts hinged upon probability and projections, even beyond the information presented on appeal.
NON"PRECEDENT DECISION
Therefore, tb~ AAO cannot accept the petitioner's ability to earn future income from the servi&s of the beneficiary to establish it.s ability to pay the current proffered wage.
USCIS may consider the overall maghitude of the petitioner's busjn~ss activities in its determination of the petitioner's ability to pay the proffered wage . . See Sonegawa, 12 I&N Dec. at 614-1.5. The petitioning entity in Sonega.w(l had been in business for over 11 years and routinely earned a gross afifiilal income of about $100,000. l)uring the y~ar in which the petition was filed in that case, the petitioner · changed business locations and paid rent on both tbe old and new locations for five months. There were large moving costs artd also a period of time wben the petitioner was unable to do regular business. The Regional Commissioner detetniined that the petitioner's prospects for a resumption of Sl,lccessful business operations were well established. The petitioner was a fashion designer whose work had been featured 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 lect.ure<;l on fashion design at design and fashion shows throughout the United States ana at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sou,nd business reputation and o1,1tstanding reputation as a couturiere. As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioner's finMcial ability that falls outside of a petitioner's net income and net current assets. US CIS may consider such factors as the number of yea.rs the petitioner has been doing business, the established historical growth of the peti.tjoner's business, the overaU n.uwb(!r 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 ail outsourced service, or any other evidence that USCIS deems rei evant to the petitioner's ability to pay the proffered Wage.
In the instant case, tbe petiHoner has been in business since 2004 and employs 20 workers. The record does hot contain enough evidence to establish the · petitioner's historical growth, uncharacteristic business expenditures or losses, the petitioner~s reputation within its industry, or whether the beneficiary may be replacing a fotmer employee or an outsourced service. 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.
The evidence submitted does not establish that the petitioner· had the continuing ability to pay the proffered wage beginning on the priority date. Further, counsei provided no additional federal income tax returns fot 2011 and 2012 with the filing of the motion before the AAO.
Further, according to USCIS records, the petitioner has filed ten 1•140 petitions on behalf of other beneficiaries. Accordingly, the petitioner rnust 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 ofGre(lt Wal/)6 I&N Dec. 142, 144-145 (Acting Reg'l Comm'r 1977).
The evidence in the record does not document the priority date, proffered wage or wages paid to each beneficiary, whether any of the other petitions have been withdrawn, revoked, or denied, or whether any of the other beneficiaries have obtained lawful permanent residence. Thus, it is also concluded that the p. 8 NON-PR£,CEDENT DECISION petitioner has not established its continuing ability to pay the proffered wage to the beneficiary and the proffered wages to th~ beneficiaries of its other petitions for 2009 through 2012. · Beyond the decision of the director, the petitioner has also not established that the beneficiary is qt:~:~lifled for the offered position. The petitioner must establish that the beneficiary possessed all the education, training, and experience specified on th~ l~bor certification as of the priority date. . 8 C.F.R. § 103.2(b)(i), (12). See Matter ofWing ~s Tea House, 16I&N Dec. 158, 159 (Acting Reg'l. Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the beneficiary's qualifications, USClS r.nust loolc 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.2.d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. La~don, 699 F.2d 1006 (9th Cir. 1983); Stewart Infra Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1 Cir. 1981).
In the instant ca,se, the labor certification states that the offered position requires a master's degree in computer science, engineering, IT, business, math or.a related field, or in t.he alternative a bachelor ' s degr~e in one of these fields and five years of progressive experience as a: software engineer. On the labor certification, th~ beneficiary cl<Jlms to qu~ify for the offered position based on a bachelor.'s degree and expe.rience as a software engineer.
The beneficiary's claimed qualifying experience must be supported by .letters from employers giving the name, address, and ,titl~ of the ernployer, and a description of the beneficiary's experience. See 8 C.F.R. § 204.5(g)(1). The record contains two experience letters. However, these letters fail to indicate If the beneficiary's work experience was on a full-time or part,.time basis.
The evidence in the record does not establish that the beneficiary possessed the required experience · set forth on the labor certification by the priority date. Therefore, the petitioner has also failed to ~sta.blis.h that the beneficiary is qualified · for the offered position. For this additional reason the approval of the petition shodld ternain revoked. ·
Further, it is unclear that the petitioner will be the benefiCiary's employer and was a.utb.ori~ed to file the instant petition. The regulation at 8 C.F.R. § 204.5(c) provides . that "[a]ny United States employer des~ring and intending to employ an alien may file a petition for classification of the alien lJP.der, .. section 203(b)(3) qfthe Act." In addition, the Department of Labor (DOL) regulation at 20 C.F.R. § 656.3 4 stat~s: ·
~ the regulatory scheme governing the alien labor certification process contains cert~in safegu~rds to assure that petit_ipn.ing elllployers do not treat alien workers more favorably than U.S. workers. · The current DOL regulations concerning labor certifications went into effect on March 28, 2005. The new regulations are referred to by the DOL by the acronym PERM. See 69 Fed. Reg. 77325, · 77326 (Dec. 27, 2004). The PERM regulation was effective as of March 28, 2005, and applies to labor certification applic~tions for the permanent employment of aliens filed on or after that date. p. 9 Employer means a person, assoCiation, firm, or a corporation which currently has a location within the United States to which U.S. workers may be referred for employment, and which proposes to employ a full-time worker at a place within the United States or tbe apthorized· representative of such a person, association, firm, or corporation.
In this case, the petitioner has failed to establish what company would actually employ the b~neficiary. In considering whether or not one is an ''employee," U.S. Citizenship and Immigration Services (USCIS) must focus on tbe common-law touchstone of control. Such indicia of control include wheil, where, arid how a worker performs the job; tbe continuity of the worker's relationship with the employer; the tax treatment of the Worker; the provision of employee benefits; and whether the work performed by the worker is part of the employer's regUlar business. Other aspects of the relationship between tb(f parties may affect the determination of whether an employer.,.employee relationship exists. Furthermore, not aU or even a majority of the listed criteria need be met~ however, the fact .finder must weigh .and compare a combination of the factors in analyzing the facts of each individual case. The determination must be baSed on all of the circ1,1mstances in the relationsbip between the parties, regardless of whether the parties refer to it as ail employee or as an independent contractor relation.sbip. See CICl.c;kamas, 538 U.S. at 448-449; New Compliance Manual at§ 2-III(A)(l).
In the present matter, it is unclear that the petitioning entity pays any employee salaries, that it employs .anyone directly, or that it would be the beneficiary's actual employer. Thus;-the petitioner has not established itself as a United States employer a..s reql}ired.
Thus, the petition's approval will remain revoked for the above stated reasons, witb each ground constituting a separate and independent ground for ,the revocation of the approval of the petition. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 ofthe Act, 8 U.S.C. § 1~61. Here, that burden has not been met. ORDER: The motion to reopen and reconsider is granted and the decision of the director dated July l8, 2012 is affirmed. The petition's approval is revoked.