The Petitioner. a provider of information technology services. seeks to employ the Beneficiary as a computer software engineer. applications. It requests his classification as a member of the professions holding an advanced degree under the second-preference. immigrant category. S'ee Immigration and Nationality Act (the Act) section 203(b)(2)(A). 8 U.S.C. ~ 1153(b)(2)(A). This employment-based. ·'EB-2'" category allows U.S. businesses to sponsor foreign nationals for lawful permanent resident status if they have at least master's degrees. or bachelor's degrees follmved by five years of experience.
The Director of the Nebraska Service Center denied the pet1t10n and the Petitioner's following 1 The Director concluded that the Petitioner did not demonstrate its required ability to pay the combined proffered wages of this petition and others that were pending or tiled after the priority date.
On appeal, the Petitioner submits additional evidence and asserts its ability to pay the combined proffered wages of all applicable petitions. Upon de novo review. we will withdraw the Director's decision and remand this matter for further proceedings consistent with the following opinion.
The Employment-Based Immigration Process
Employment-based immigration generally follows a three-step process. First. an employer applies for certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act. 8 U.S.C. ~ 1182(a)(5)(A)(i). DOL must determine whether the United States has able. willing. qualified. and available workers for an offered position. and whether employment of a f(xeign national would hurt the wages and working conditions of U.S. workers with similar jobs. !d.
The instructions to Form 1-2908. Notice of Appeal or Motion. allow combined motions to reopen and reconsider. See 8 C.F.R. ~ I03 .2(a)( I) (incorporating form instructions into the regulations). combined motions to reopen and reconsider.
If DOL certifies a foreign national to permanently till an otTered position. the employer must next submit the certification with an immigrant visa petition to U.S. Citizenship and Immigration Services (USerS). See section 204 of the Act 8 U.S.C. § 1154. If USerS approves a petition. the foreign national may finally apply for an immigrant visa abroad or. if eligible, adjustment of status in the United States. See section 245 of the Act. 8 U.S.C. § 1255.
Ability to Pay the Proffered Wage
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's 2 priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2).
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or audited financial statements. !d. In determining ability to pay, USClS examines whether a petitiOner paid a beneficiary the full protTered wage each year from a petition's priority date. If a petitioner did not annually pay the profTered wage, users considers whether it generated annual amounts of net income or net current assets sufficient to pay any ditTerence between the protTered wage and wages paid. If net income and net current assets are insufficient USCIS may also consider other factors affecting a petitioner's ability to pay a protTered wage. See Matter ojSone;{awa. 12 I&N Dec. 612, 614-15 (Reg'! Comm'r 1967):'
Here. the accompanying labor certification states the proffered wage of the otJered positiOn of computer software engineer as $92,000 per year. The Petitioner did not submit evidence of its payment of wages to the Beneficiary.
The Petitioner's federal income tax returns for 2015 reflect net income of $582.082 and net current assets of $1,878.323. Both of these amounts exceed the annual profTered wage of $92.000. The record therefore appears to demonstrate the Petitioner's ability to pay the proffered wage in 2015.
This petition's priority date is January 9, 20 I5, the date the DOL received the accompanying labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). The Beneficiary. however, may immigrate using the priority date of a prior petition approved on his behalf See 8 C.F.R. § 204.5(e) (entitling a beneficiary of multiple. approved petitions to the earliest priority date). Federal courts have upheld USCIS· method of determining a petitioner's ability to pay a proffered wage. See. e.g.. River St. Donuts, LLC v. Napolitano, 558 F.3d Ill. I 18 (I st Cir. 2009); Estrada-Hernande:: v. Holder. I08 F. Supp. 3d 936. 942-43 (S.D. Cal. 20 15); Riv::i v. Dep 't of Homeland S'ec.. 37 F. Supp. 3d 870. 883-84 (S.D. Tex. 20 14). aff'd. 627 Fed. App'x. 292 (5th Cir. 2015).
-l The Petitioner files its federal income tax returns as an S corporation. S corporations that receive incomes, deductions. credits. or other income adjustments from sources outside their trades or businesses reconcile their income on Schedule K to IRS Form 1120S, U.S. Income Tax Return for an S Corporation. See Internal Revenue Serv. (IRS). "Instructions to Form 1120S," https://www.irs.gov/pub/irs-pdt/ill20s.pdf(last visited Dec. 13, 2017). The Petitioner's 2015 Schedule K reports deductions and expenses. We therefore consider line 18 of Schedule K of its 20 I5 tax return to retlect its net income amount.
Matter olS-C-. Inc.
As the Director found, however, USCIS records indicate the Petitioner's tiling of multiple Forms I-140, Immigrant Petitions for Alien Workers. A petitioner must demonstrate its ability to pay the protlered wage of each petition it files until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore demonstrate its ability to pay the combined proffered wages of this petition and others that were pending or filed after its priority date. The Petitioner must demonstrate its ability to pay the combined proffered wages from this petition·s priority date until the beneficiaries of the other petitions obtained lawful permanent residence. See Patel v. Johnson. 2 F. Supp. 3d 108. 124 (D. Mass. 2014) (affirming a petition's revocation where. as of the tiling's grant the petitioner did not demonstrate its ability to pay the combined proffered wages of multiple pending and approved petitions).
The Director asked the Petitioner for information on all of its petitions tiled in 2014 and 2015. USCIS records. however. indicate the Petitioner's tiling of additional I-140s. both before 2014 and after 2015, that were pending or tiled after this petition's priority date of .January 9. 2015.
On remand. the Director should ask the Petitioner for information on all of its I-140s that were pending or filed after January 9. 2015. including any tiled before 2014 or after 2015. The Petitioner. however, need not demonstrate its ability to pay a proflered wage: after a beneficiary obtains lawful pennanent residence: before the priority date of a beneficiary's petition: or where a petition was withdrawn. revoked. or denied without a pending appeal or motion.
Requested evidence should include:
- A list of all receipt numbers of I-140 petitions pending or tiled smce January 9. 2015. (including those tiled before 2014 or after 2015):
- The name o f each beneficiary:
- The protlered wage for each beneficiary:
- The priority date of each petition;
- The status of each petition and the date of any status change (i.e., pending, approved. denied. withdrawn. revoked. on appeal or motion. beneficiary obtained lawful permanent residence):
- Wages paid to each beneficiary for each year starting from the priority date of the current Form I-140 petition or the priority date of the I-140 petition tiled on behalf the other beneficiary. whichever is later;
- Documentary evidence of any wages paid for the relevant years, such as: the beneficiary's IRS Form W-2. Wage and Tax Statements: the benc1iciary's IRS Form 1099-MISC, Miscellaneous Income: and the beneficiary's pay vouchers or payroll records. specifying the length of the pay periods and showing the beneficiary's gross or net pay. year-to-date income, income tax deductions. and tax withheld:
- Copies of annual reports, federal tax returns. or audited financial statements for 2016 and. if available. 2017: and
- Any evidence in support of the factors stated in Malter ofSonegawa. 12 I&N Dec. at 612.
The Director should afford the Petitioner a reasonable opportunity to respond. Upon the Petitioner's timely response, the Director should review the entire record.
To determine whether the Petitioner has established its ability to pay multiple 1-140 beneficiaries, for each year at issue, the Director should: (a) calculate any shortfalls between the protlered wages and actual wages paid to the primary Beneficiary and the other beneficiaries; (b) add these amounts to calculate the total wage deficiency; and (c) review the Petitioner's tax returns, audited financial statements, or annual reports to find whether its net income or net current assets exceed the total wage deficiency. If the Petitioner's net income and net current assets are insutticient, the Director should also determine whether the SonegaH!a factors establish the Petitioner's ability to pay.
After determining the Petitioner's ability to pay. the Director should enter a new decision.
We note that on appeal, the Petitioner asserts that, for 2015, it need not demonstrate its ability to pay the proffered wages of six petitions. Upon receipt of lawful permanent residence by the petitions· beneficiaries, the Petitioner states that it will employ the foreign nationals at their current client sites. The Petitioner submitted evidence that another company employed them in 2015, paying them more 5 than their aggregate proffered wages.
As the Director found, however, even if the beneficiaries will continue to work at the same client sites, the other company's payment of their proffered wages does not demonstrate the Petitioner's ability to pay their wages. The regulations require "the prospective United States employer.. to demonstrate its ability to pay. 8 C.F.R. § 204.5(g)(2). A federal court rejected a similar argument asserting that a corporation's director could personally pay a beneficiary's proffered wage. See Sitar Rest. v. Ashcrofi, No. Civ. A.02-30197-MAP. 2003 WL 22203713 *2 (D.Mass. Sept. 18. 2003) (holding that ''nothing in the governing regulation, 8 C.F.R. § 204.5, permits the [immigration service1to consider the financial resources of individuals or entities who have no legal obligation to pay the wage''). The Petitioner must therefore demonstrate its ovvn ability to pay the proffered wages ofthe six petitions in 2015.
Ill. CONCLUSION
The Director correctly found that the Petitioner must demonstrate its continuing ability to pay the combined proffered wages of multiple beneficiaries. But the Director did not ask the Petitioner for information on all of its petitions that were pending of tiled after this petition's priority date of January 9, 2015.
Public records indicate that the other company and the Petitioner share a common corporate officer. The other company's president is the Petitioner"s chief executive officer. See Kan. Sec'y of State. Business Entity Search, https:!/www.kansas.gov/bess!tlow/main')execution=eIsI (last visited Dec. 13. 2017): Conn. Sec·y of State, Business lnqu1ry, https://www.concord.sots.ct.gov/CONCORD/ online')sn=Publiclnquiry&cid (last visited Dec. 13, 2017).
Matter of,)'-C-. Inc.
ORDER: The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing opinion and f(.H' the entry ofa new decision.
Cite as Matter of'S-C-. Inc., ID# 799006 (AAO Dec. 21, 2017)