The Petitioner, a researcher, developer, and manufacturer of generic drugs, seeks to employ the Beneficiary as a finance manager, planning, analysis, and advisory. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This category allows a U.S. business to sponsor a professional with an advanced degree or its equivalent for lawful permanent resident status.
The Director, Nebraska Service Center, denied the petition and the Petitioner's following motion to reopen. In both decisions, the Director concluded that the Petitioner did not demonstrate its ability to pay the proffered wage.
The matter is now before us on appeal. The Petitioner submits additional evidence and asserts its ability to pay on a variety of bases, including its employment of more than 100 worhrs, the amounts in its bank accounts, the availability of funds used to pay discretionary expenses, and the scope of its business activities.
Upon de novo review, we will dismiss the appeal.
Law and Analysis
A. The Erpployment-Based Immigration Process
Employment-based immigration is generally a three-step process. First, a prospective U.S. employer must obtain an approved ETA Form 9089, Application for Permanent Employment Ce1iification While this appeal was pending, U.S. Citizenship and Immigration Services (USCIS) approved another Form 1-140, Immigrant Petition for Alien Worker, filed by the Petitioner for the Beneficiary.· Despite the approval of the later petition in the same requested classification, we will not dismiss this appeal as moot. See Matter (~(Luis-Rodriguez, 22 I&N Dec. 747, 753 (BIA 1999) (holding that, as a matter of prudence, an administrative tribunal may dismiss an appeal as moot). The appeal retains practical significance because its sustention would accord the Beneficiary an earlier priority date for an immigrant visa. See 8 C.F.R. § 204.5(e) (entitling a beneficiary of multiple petitions to the earliest priority date). p. 2 (labor 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). By approving the labor certification in this case, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position of finance manager. See section 212(a)(5)(A)(i)(l) ofthe Act. The DOL also certified that the employment of a foreign national in the position will not adversely affect the wages and working conditionsofdomesticworkerssimilarlyemployed. See-section212(a)(5)(A)(i)(Il).
Next, the employer must file a Form I-140 with USCIS. See section 204(a) of the Act, 8 U.S.C. § 1154(a). In visa petition proceedings, USCIS must determine whether the Beneficiary meets the requirements of the offered position certified by the DOL. USCIS must also determine whether the Petitioner and the Beneficiary qualify for the requested benefit, including whether the Petitioner demonstrated its ability to pay the proffered wage. See, e.g. Tongatapu Woodcraji Haw., Ltd. v Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984) (holding that the immigration service "makes its own determination of the alien's entitlement to [the requested] preference status").
Finally, if USCIS approves the petition, a foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.
B. The Petitioner's Ability to Pay the Proffered Wage
A petitioner must demonstrate its continuing ability to pay a proffered wage from a petition's 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. Id.
In this case, the labor certification states the proffered wage of the offered position of finance manager as $91,520 per year. The petition's priority date is June 4, 2014. This is the date the DOL received the labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date)..
In determining ability to pay, we first examine whether a petitioner paid a beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage each year, we next consider whether it generated sufficient annual amounts of net income and net current assets to pay any difference between the wage paid and the proffered wage. 'rf a petitioner's net income and net current assets are also insufficient, we may consider the overall magnitude of its business activities. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 2 Comm'r 1967).
Federal courts have upheld our 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, 118 (I st Cir. 2009); Estrada-Hernandez v. Holder, I08 F. Supp. 3d 936, 942-43 (S.D. Cal. 20 15); Rivzi v. Dep 't o f Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), aff'd, 627 Fed. App'x. 292 (5th Cir. 20 15).
------------------
Matter ofN-L-, Inc.
Here, the record indicates the Petitioner's employment of the Beneficiary since April 11, 2011. The Petitioner submitted copies ofiRS Forms W-2, Wage and Tax Statements, for 2014, the year of the petition's priority date, and 2015. The Forms W-2 indicate that the Petitioner paid the Beneficiary wages of $66,633.49 in 2014 and $77,906.39 in 2015. Neither of these amounts equals or exceeds the annual proffered wage of $91,520; therefore, the Forms W-2 do not establish the Petitioner's ability to pay the proffered wage.
The Petitioner also submitted copies of the Beneficiary's 2014 payroll records from May 26 to December 21. As previously noted, the Petitioner need only demonstrate its ability to pay the proffered wage from the petition's priority date of June 4, 2014. We will therefore examine the payroll records to determine whether the Petitioner paid the Beneficiary the $52,800 portion ofthe 2014 annual proffered wage that accrued after the June 4 priority date. indicate the Beneficiary's bi-weekly receipt of $2884.62 from May 26 (the beginning of the pay period which June 4, 2014) to December 21, a total of $43,269.30. That amount does not equal or exceed the prorated 2014 proffered wage of $52,800. Thus, the record does not establish the Petitioner's ability to pay the proffered wage based on its payments to the Beneficiary.
Nevertheless, we credit the Petitioner's payments to the Beneficiary. The Petitioner need only demonstrate its ability to pay the annual differences between the annual proffered wage and the 4 amounts paid to the Beneficiary, or $24,886.51 in 2014 and $13,613.61 in 2015.
The Petitioner provided copies of its federal income tax return and audited financial statements for 2014. On appeal, it also submits copies of its audited financial statements for 2015. Both the Petitioner's tax return and audited financial statements for 2014 reflect negative annual amounts of net income and net current assets. The r~cordtherefore does not demonstrate the Petitioner's ability to pay the proffered wage in 2014 based on its net income or net current assets. The audited financial statements for 2015 reflect annual net income of $17,012,920 and annual net current assets of $7,178,247. Both of these amounts exceed the annual proffered wage. The record therefore would appear to establish the Petitioner's ability to pay the proffered wage in 2015; however, as noted in the Director's request for evidence (RFE), USCIS records indicate the Petitioner's filing of multiple Form 1-140 petitions. The records indicate the Petitioner's filing of at least five petitions The annual proffered wage of$91,520 equates to a weekly wage of$1760. The period from June 4, 2014, to December 31, 2014, consisted of about 30 weeks. By multiplying $1760 by 30, we calculated the prorated, proffered wage of $52,800. 4
We calculated the annual differences by subtracting the wage amounts on the Forms W-2 for 2014 and 2015 from the annual proffered wage. 5
USCIS records identify the five pending petitions by the following receipt numbers: and Since responding to the Director's RFE in
January 2016, USCIS records indicate the Petitioner's filing of three additional petitions for other beneficiaries. USCIS records identify these three petitions by the following receipt numbers: , and Because the Director did not request information about these three additional petitions, we will not consider them in this decision. In any future filings in this matter, however, the Petitioner must provide information about the three additional petitions and demonstrate its ability to pay their proffered wages. for other beneficiaries that remained pending after this petition's priority date ofJune 4, 2014. The 2014 payroll records
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files from the petition's priority date onward. 8 C.F.R. § 204.5(g)(2). The Petitioner must therefore demonstrate its ability to pay the combined proffered wages of this petition and its other petitions that remained pending after this petition's priority date. The Petitioner must demonstrate its ability to pay the combined proffered wages for all sponsored beneficiaries from this petition's priority date of June 4, 2014, until the other beneficiaries obtained lawful permanent residence, o~ until their petitions were denied, withdrawn, or revoked. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a petition where the petitioner did not demonstrate its ability to pay the proffered wages of multiple, pending petitions).
The Petitioner provided proffered wage amounts for its five other pending petitions. Including the proffered wage of this petition, the record indicates that the Petitioner must demonstrate its ability to 6 We next consider whether the Petitioner's net income or net current assets are sufficient to pay the difference between the total wage obligation and the wages paid to the pending beneficiaries. Here, the Petitioner's audited financial statements for 2015 reflect sufficient annual amounts of net income and net current assets to pay all of the pending beneficiaries. The record therefore establishes the Petitioner's ability to pay the proffered wage in 2015. As previously noted, however, the Petitioner's federal tax return and audited financial statements for 2014 reflect negative annual amounts of net income and net current assets. The record therefore does not establish the Petitioner's ability to pay the combined proffered wages in 2014.
On appeal, the Petitioner asserts that the petition's denial would conflict with the "true purpose" of ability to pay determinations. Citing the U.S. Court of Appeals for the Seventh Circuit, the Petitioner states that the ability to pay requirement was "intended to prevent the form of immigration fraud in which an employer sponsors an alien but does not intend to employ him." Constr. & Design in 2015. The Petitioner states that one beneficiary resigned from the company on June 5, 2015. The Petitioner, however, did not submit corroborating evidence of the beneficiary's resignation or of the Petitioner's withdrawal of the beneficiary's petition. See Matter ofSoffici, 22 1&N Dec. 158, 165 (Comm'r 1998) (citation omitted) (holding that uncorroborated assertions do not meet the burden of proof in visa petition proceedings). The Petitioner must therefore demonstrate its ability to pay that beneficiary's full proffered wage in 2015. 7 On appeal, the Petitioner asserts that it paid the pending beneficiaries more than the required proffered wages in 20 14 and 2015. But the Petitioner's calculations indicate that it prorated some of the proffered wages without demonstrating that its payments occurred after the respective priority dates. The Petitioner may not disproportionately use actual wages paid over a 12-month period to demonstrate its ability to pay proffered wages over lesser, prorated periods. The Petitioner therefore did not demonstrate that its wage payments to the beneficiaries in 2014 and 2015 equaled or exceeded their proffered wages for either year in question. pay total proffered wages of$324,885 in 2014 and $433,253 in 2015. the Petitioner's total wage payments to the pending beneficiaries of $291 ,402.82 in 2014 and $390,490.15 in 2015. We credit those payments and subtract them from the total proffered wage amounts of the relevant years. Thus, the Petitioner must demonstrate its ability to pay the. differences of$33,482.18 in 2014 and $42,762.85 in 2015.
Four ofthe petitions, including this petition, remained pending in 2014 after June 4. All six petitions remained pending Forms W-2 of record indicate
Co. v USCJS, 563 F.3d 593, 594 (7th Cir. 2009). The Petitioner states that it "cannot imagine that USCIS genuinely fears immigration fraud in this case." Because the Petitioner does not intend to employ the Beneficiary in the jurisdiction of the Seventh Circuit, the ·Construction and Design decision does not bind us in this matter. Moreover, administrative case law indicates a different rationale for the ability to pay requirement: to ensure a "realistic job offer" at the time of a petition's priority date. Matter ofGreat Wall, 16 I&N Dec. 142, 144-5 (Acting Reg'l Comm'r 1977). In Great Wall, the Acting Regional Commission ofthe former Immigration and Naturalization Service held: "The petitioner in the instant case cann9t expect to establish a priority date for visa issuance for the beneficiary when at the time of making the job otTer and the filing of the petition with this Service he could not, in all reality, pay the salary as stated in the job offer." ld. at 145. Similarly here, the record does not establish the Petitioner's ability to pay the proffered wage in the year ofthe priority date. Pursuant to Great Wall, we determine the Petitioner's ability to pay primarily to assess whether the job offer is realistic and whether the petition's priority date is validly established. We are therefore. not persuaded by the Petitioner's assertion that the petition's denial would conflict with the purpose of ability to pay determinations.
The Petitioner also asserts that the Director abused his discretion by discounting a statement from the Petitioner's chief financial officer (CFO) as proof of the company's ability to pay the proffered wage. Where a petitioner employs at least 100 people, the Petitioner notes that a "director may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage." 8 C.F.R. § 204.5(g)(2). On the Form J-140, which was filed on October 14, 2015, the Petitioner indicated its employment of 84 people. The Petitioner's CFO stated that, about 2 months later, the company acquired a pharmaceutical plant, 8 adding 81 workers. we agree with the Director that it did not demonstrate its ability to pay the proffered wage fi:om the petition's priority date of June 4, 2014. See Great Wall, 16 I&N Dec. at 144-45 (finding that a petition whose petitioner could not pay the proffered wage at the time of the priority date should not later become approvable "under a new set of facts"). Moreover, we do not believe that the Director abused his discretion by discounting the CFO's letter. As previously noted, the Petitioner must demonstrate its ability to pay the combined proffered wages of multiple, pending petitions. Under these circumstances, a brief statement from a financial officer does not reasonably establish a petitioner's ability to pay. We therefore reject the Petitioner's assertion that the CFO's statement should establish the Petitioner's ability to pay.
To fund the proffered wage in 2014, the Petitioner also contends that it could have used a portion of $2.5 million in management fees that it paid its parent company· that year. An affidavit from the parent's chief executive officer states that the management fees were "entirely discretionary and determined solely by the management" of the companies. As the Petitioner states, we have allowed employers to demonstrate their abilities to pay proffered wages with funds that they allocated to pay discretionary expenses, such as officer compensation amounts. But the record here does not establish the Petitioner's 2014 management fees as discretionary expenses. As noted in the In its appellate brief, the Petitioner states that the acquisition added only 53 employees.
Because the Petitioner did·not employ at least 100 people until December 2015, p. 6 Director's decision on the Petitioner's motion, the notes to the Petitioner's audited financial statements for 2014 state that the management fees reflect monthly invoices for "accounting and advisory services" provided by the parent company. If the management fees reflected monthly bills for services rendered, the Petitioner has not explained how their payment was optional. See Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of record by independent, objective evidence).
In addition, the Petitioner asserts that copies of its monthly bank statements demonstrate its ability to pay the proffered wage in 2014. On appeal, the Petitioner submits copies of monthly statements from May 2014 through December 2014 for two accounts. The statements of one account reflect month-end balances of at least$19,000; the statements ofthe other reflect month-end balances of at least $118,000. Current assets include cash and other assets that may be liquidated within a year. Joel G. Siegel & Jae K. Shim, Barron's Dictionary ofAccounting Terms; 117 (3d ed. 2000). We therefore presume that the current asset amounts indicated in the Petitioner's federal income tax return and audited financial statements for 2014 include the funds in the two bank accounts. The record does not indicate that the funds were excluded from those amounts, which we included in our net current asset analysis. Thus, because we have already considered the Petitioner's current assets, the bank account statements do not establish the Petitioner's ability to pay the proffered wage in 2014.
As urged by the Petitioner and previously noted, we may also consider a petitioner's ability to pay a proffered wage beyond its amounts of net income and net current assets. Under Sonegawa, we may consider such factors as: the number of years it has conducted business; its number of employees; the growth of its business; the occurrence of uncharacteristic expenses or losses; its reputation in its industry; a beneficiary's replacement of a current employee or outsourced service; or other evidence of its ability to pay.
In Sonegawa, the petitioner demonstrated the aberrational nature of its poor financial performance during the year of the petition's filing. The record indicated that the petitioner supported herself and four to eight employees for the prior 11 years "without any evidence of financial difficulties." Sonegawa, 12 I&N Dec. af614.
Here, the record indicates the Petitioner's continuous business operations since 2006 and its current employment of more than 100 people. As in Sonegawa, the Petitioner asserts its incurrence of uncharacteristic business expenses during the year of the petition's filing. The Petitioner provided a copy of an April 29, 2014, agreement indicating its purchase of eight pharmaceutical products from its parent company for $32 million. The Petitioner asserts that this purchase encumbered about $17 million of its assets, required it to obtain about $15 million in loans, and prevented it from demonstrating its ability to pay the proffered wage in 2014. However, the Petitioner has not documented that its financial losses in 2014 materially differed from prior years. The record contains tax returns or audited financial statements for only 2 years: 2014 and 2015. The record therefore does not detail the Petitioner's financial results before 2014. Moreover, the 2014 tax return indicates a net operating loss carryover amount of more than $9 million, indicating the Petitioner's p. 7 recording of losses in prior years. See 26 U.S.C. § 172(b) (allowing businesses to apply net operating losses to future tax returns). Except for 2014, the Petitioner asserts its generation of positive annual amounts of net current assets from 2010 through 2015. But the record lacks reliable, unbiased financial documentation from 20 I 0 through 2013 -such as income tax returns or audited financial statements- to support that assertion. See Sojjici, 22 I&N Dec. at 165 (holding that uncorrobonited assertions do not meet the burden of proof in visa petition proceedings).
As previously noted, the Petitioner's audited financial statements for 2015 reflect significant amounts of net income and net current assets. But, without a $60 million sale of pharmaceutical products to another company that year, the Petitioner would not appear to have earned a profit. The income statement indicates a "net operating loss before other income" of more than $22 million. Presumably because ofthe $60 million sale, the Petitioner's "other income" soared from $138,108 in 2014 to $50.45 million in 2015. Because ofthis apparent one-time sale, the record does not establish the Petitioner's profits in 2015 as typical.
The Petitioner also asserts its possession of "an excellent business reputation." But the record does not contain documentary evidence to support this claim. See So_ffici, 22 I&N Dec. at 165. The record also does not indicate the Beneficiary's replacement of a current employee or outsourced service. In addition, unlike the petitioner in Sonegawa, the Petitioner must demonstrate its ability to pay multiple I-140 beneficiaries. Thus, upon consideration of the totality of the circumstances in this case, we find that the record does not demonstrate the Petitioner's ability to pay the proffered wage pursuant to Sonegawa.
For the foregoing reasons, the Petitioner has not demonstrated its continuing ability to pay the proffered wage from the petition's priority date onward.
C. TheBeneficiary'sPossessionoftheRequiredExperience
Although unaddressed by the Director, the record also does not establish the Beneficiary's possession of the experience required for the offered position. A petitioner must establish a beneficiary's possession of all the education, training, and experience specified on a labor certification by a petition's priority date. 8 C.F.R. § 103.2(b)(l), (12); see also Jvfatter o f Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter o_fKatigbak. 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971).
In evaluating a beneficiary's qualifications, we must examine the job offer portion of a labor certification to determine the minimum requirements of an offered position. We may neither ignore a term of the labor certification, nor impose additional requirements. See K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); A1adany v. Smith, -696 F.2d 1008, 1012-13 (D.C. Cir. 1983);Stewartlrifra-RedCommissaryofMass., Inc. v. Coomey, 661 F.2d 1,3 (lstCir.1981).
Here, the labor certification states the minimum educational requirements of the offered position of finance manager as a U.S. bachelor's degree or a foreign equivalent degree in accounting, finance, business administration, or a related field. The labor certification also states the minimum experience requirements for the position as 60 months, or 5 years, as a finance manager, accountant, account officer, or a related occupation. In addition, Part H.14 of the labor certification states that "[r]elated experience must include Internal Control, Risk Assessment, Cost Accounting, Omnergizer ERP, Tally ERP, Cost of capital and IFRS Principles."
On the labor certification, the Beneficiary attested to his possession of more than 7 years of full-time, related experience before the petition's priority date of June 4, 2014. The Beneficiary stated the following employment history:
- About 7 months as a senior accountant with the Petitioner in the United States smce November 1, 2013 ;
- About 2 years, 7 months as an accountant with the Petitioner in the United States from April 11, 2011, to November 1, 20I3; and
- About 4 years, 7 months as an account officer with m 9
India from September II, 2006, to March 3I, 20II.
A petitioner must support a beneficiary's claimed qualifying experience with letters from employers. 8 C.F.R. § 204.5(g)(l). The letters must provide the names, addresses, and titles of the employers, and descriptionsofabeneficiary'sexperiences. Id In this case, the Petitioner provided a letter on its stationery from its controller and vice president of finance dated October 9, 2015. Consistent with the information on the labor certification, the letter states the Petitioner's employment ofthe Beneficiary since April 1I, 2011, as an accountant and senior accountant. The letter also describes his job duties in each position. The letter establishes the Beneficiary's possession o f about 4 years and 5 months o f qualifYing experience; however, only about 3 years, 2 months of this experience was acquired before the petition's priority date. The Petitioner did not submit a letter from the Beneficiary's claimed former employer in India or any other documentation to demonstrate that the Beneficiary has the required experience.
Thus, the record does not establish the Beneficiary's possession of at least 5 years of qualifYing experience, as specified on the labor certification, before the petition's priority date.
A labor certification employer cannot rely on experience gained with it by a foreign national, unless the foreign national gained the experience in a position "not substantially comparable" to the offered position or the employer demonstrates the infeasibil(ty of training another worker for the position. 20 C.F.R. § 656.17(i)(3)(i), (ii). For this purpose, a "substantially comparable" position means "a job or position requiring performance of the same job duties more than 50 percent of the time." 20 C.F.R. § 656.17(i)(5)(ii). Here, the Petitioner relies on experience that the Beneficiary gained with it. The record, however, establishes that the Beneficiary gained the experience in substantially different positions.
Conclusion
The Petitioner did not demonstrate its continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the Director's decision. In addition, the record does not establish the Beneficiary's possession of the experience required for the offered position by the petition's priority date.
In visa petition proceedings, a petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. Here, the Petitioner did not meet that burden.
ORDER: The appeal is dismissed.
Cite as Matter ofN-L-, Inc., ID# 123126 (AAO Feb. 17, 2017)