Non-Prec~dent Decision of the Administrative Appeals Office MATTER OF S-S-S-, INC. DATE: FEB. 17, 2017 APPEAL OF NEBRASKA SERVICE CENTER DECISION PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a software development/information technology company, seeks to employ the Beneficiary as a systems analyst. I t seeks classification o f the Beneficiary as a member o f the professions holdinK an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent residence.
The Director, Nebraska Service Center, denied the petition. The Director found that the evidence of record did not establish that the Beneficiary had the requisite combination of education and qualifying experience, specifically, a bachelor's degree and 5 years of post-baccalaureate experience in the specialty, to be eligible for classification as an advanced degree professional.
The matter is now before us on appeal. The Petitioner submitted additional documentation with the appeal, as well as in response to our subsequent Request for Evidence (RFE) and a Notice of Intent to Dismiss (NOID) that also addressed the Petitioner's ability to pay the proffered wage. After completing our de novo review ofthe record, we will dismiss the appeal.
Procedural History
The Form I-140, Immigrant Petition for Alien Worker, as required by statute, was accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), which was filed with the Department of Labor (DOL) on January 1~, 2013, and certified by the DOL. In section G of the labor certification, the Petitioner stated that the protTered wage is $68,390 per year. In section K of the labor certification, the Petitioner stated that it had employed the Beneficiary as a computer systems analyst since January 15, 2010. In section H of the labor certification the Petitioner specified the following with respect to the education, training, and experience required to qualify for the job of systems analyst:
4. Education: Minimum level required: 4-B. Major Field of Study: 5. Is training required in the job opportunity?
6. Is experience in the job offered required?
Master's degree Computer Science No No
7. Is there an alternate field of study that is acceptable? 7-A. What field?
8. Is an alternate combination of education and experience acceptable? 8-A. What level'of education?
8-C. How many years of experience
9. Is a foreign educational equivalent acceptable?
10. Is experience in an alternate occupation acceptable?
10-A.: How long?
10-B. Job titles o f alternate occupations . The Director denied the petition, finding that the Beneficiary's degree from Periyar University was equivalent to a U.S. bachelor's degree, and noted that the Beneficiary must have at least 5 years of qualifying post-baccalaureate experience by the priority date of the petition to meet the alternate education and experience requirements of the labor certification and be eligible for classification as an advanced degree professional, which the Petitioner did not establish. The Petitioner appealed.
We issued an RFE requesting documentation relating to the Beneficiary's education. We also requested evidence of the Petitioner's continuing ability to pay the proffered wage of the instant Beneficiary in 2014, as well as the proffered wages of two other beneficiaries of Form I-140 petitions that were filed by the Petitioner in 2014 and 2015. The Petitioner responded with additional documentation related to both issues. Based on our review of that documentation vv·e accept that the Petitioner has established that the Beneficiary has the requisite education and experience to meet the labor certification' s alternate requirement of a bachelor' s degree and 5 years of experience.
Subsequently, we issued a NOID in which we advised the Petitioner of our intent to dismiss the appeal in part because the evidence of record did not establish its continuing ability to pay the proffered wages of its other 2 Form I-140 beneficiaries, aswell as the proffered wage of the instant Beneficiary. We requested complete information and evidence relating to the other 2 Form I-140 beneficiaries, which had not been submitted in response to the RFE, as well as copies of the 2015 Forms W-2 issued to them and the instant Beneficiary. In addition, we asked for clarification as to the inconsistent accounting methods used on the Petitioner's federal income tax returns for 2012, 2013, and 2014, a copy of the Petitioner's 2015 federal income tax return, and evidence ofthe actual employer and the worksite location of the job offered such as copies of service contracts. The Petitioner responded with a letter from counsel and copies of the Forms W-2 issued to its other 2 Form I-140 beneficiaries for 2013 and 2014 but not for 2015, the Forms W-2 issued to the instant Beneficiary for 2013, 2014, and 2015, and the Beneficiary's most recent pay statement in August 2016. The Petitioner stated that it had filed an extension for its 2015 federal income tax return. The Petitioner explained that it always used the cash method of accounting, and indicated that it mistakenly checked the accrual method box on its 2012 federal income tax return. The Petitioner submitted copies of its employment contract with the Beneficiary and a billing services contract with as well as a letter from confirming that the Beneficiary was working on a consulting assignment at a client location in Texas.
Yes
Engineering
Yes
Bachelor's degree 5 years
Yes
Yes
24 months
Programmer
Analyst, or closely related job
Analyst, Systems
Law and Analysis
The regulation at 8 C.F.R. § 204.5(g)(2) provides, in pertinent part, as follows: Ability ofprospective employer to pay wage. Any petition filed by or for an employment-based immigrant which requires an otTer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the pro±Iered 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.... In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records may be submitted by the petitioner or requested by the Service.
· Thus, the Petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the labor certification application was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d). In this case, the ,-priority date is January 15, 2013.
The Petitioner must establish that its job offer to the Beneficiary is a realistic one. Because the filing of an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition later based on the certified 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, until 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 o f Great 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, U.S. 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 circumstances affecting the petitioning business will also be considered if the evidence warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).
In determining the Petitioner's ability to pay the protiered wage, USCIS first examines whether the Beneficiary was employed and paid by the Petitioner during the period following the priority date. 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 is considered prima facie proof of the Petitioner's ability to pay the proffered wage.
In this case, the Petitioner has employed the Beneficiary since before the priority date of January 15, 2013. His Forms W-2 show that he received "wages, tips, other compensation" of $66,611.90 in 2013, $73,398 in 2014, and $74,965 in 2015, and his pay statement dated August 16, 2016 showed that his gross pay up to then was $44,744 in 2016. The Beneficiary's pay exceeded the proffered wage of $68,390 in 2014 and 2015, and was on a pace to do so in 2016 as well. In 2013, however, the Beneficiary's pay was $1778.10 less than the proffered wage. Therefore, the Petitioner has not p. 4 established its ability to pay the proffered wage from the priority date up to the present based on the wages actually paid to the Beneficiary.
If the Petitioner does not establish that it has paid the Beneficiary an amount at least equal to the proffered wage from the priority date onward, USClS will examine the net income and net current assets figures entered on the Petitioner's federal income tax returns. If either of these figures equals or exceeds the proffered wage or the difference between the proffered wage and the amount paid to the Beneficiary in a given year, the Petitioner would be considered able to pay the proffered wage during that year. There is ample judicial precedent for determining a petitioner's ability to pay the proffered wage based on its federal income tax returns. See e.g. Elatos Restaurant Corp. v. Sava, 632 F.Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Togatapu Woodcraft Haw., £:td. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)).
On a Form 1120, U.S. Corporation Income Tax Return, net incomy is recorded at line 28 of page 1, while net current assets are the difference between cunenLassets and current liabilities recorded in lines 1-6 and 16-18, respectively, of Schedule H. In the Petitioner's Form 1120 for 2013, the Petitioner's net income was -$80 and its net current assets were $7907. For 2014, the Petitioner's Form 1120 showed net income of $40,528 and net current assets of $49,176. While the Petitioner' s net current assets in 2013-$7907- would be sufficient to cover the $1778.10 difference between the proffered wage and the amount actually paid to the Beneficiary in 2013, as previously indicated the Petitioner has sponsored other workers who also need to be considered before we can determine whether the Petitioner can pay the proffered wage of the instant Beneficiary.
As we advised in our RFE and our NOID, the Petitioner must show that it can pay the proffered wages of its other Form 1-140 beneficiaries from the priority date of the instant petition until each beneficiary obtains lawful permanent residence. See 8 C.P.R. §204.5(g)(2); see also Matter of Great Wall, 16 I&N Dec. at 144-145. The record shows that the other 2 beneficiaries (I-140 receipt numbers and have respective priority dates of September 8, 2010, and March 22, 2013, proffered wages of $110,000 and $115,000, and were approved in October 2014 and January 2015, respectively. The Forms W-2 of the beneficiary with a proffered wage of $110,000 show that he received "wages, tips, other compensation" of $60,307.20 in 2013 and $44,640 in 2014. These figures were $49,688.97 and $65,360, respectively, below the proffered wage. The Forms W-2 of the beneficiary with a proffered wage of $115,000 show that he received ·"wages, tips, other compensation" of $95,255.11 in 2013 and $107,428.47 in 2014. These figures were $19,744.89 and $7571.53, respectively, below the proffered wage. Thus, the combined shortfall between the proffered wages and the amounts actually paid to the other 2 Form I-140 beneficiaries was $69,433.86 in 2013 and $72,931.53 in 2014.
In neither 2013 nor 2014 did the Petitioner have sufficient net income or net cunent assets to cover these shortfalls. · The Petitioner's net current assets in 2013 were $7907. Considering the deficient wages paid to 2 other beneficiaries o f l - I 40 petitions in 2013, using all o f the Petitioner's net current assets would still leave a $6I,526 deficit for the wages of all the Petitioner's sponsored workers. While the Petitioner can establish-its ability to pay the Beneficiary's profiered wage in 2014 based p. 5 Matter o fS-S-S-, Inc. on the wages actually paid, as evidenced by the Form W-2, we note in considering the totality of its circumstances (see Matter ofSonegawa, infra) that the Petitioner's net current assets in 2014 were $49,176, which was $23,755.53 below the amount needed to cover the difference between the proffered wages and the amounts actually paid to the other 2 beneficiaries in 2014. Similarly, while the Petitioner can establish its ability to pay the Beneficiary's proffered wage in 2015 based on the wages actually paid, as evidenced by the Form W-2, the Petitioner has not submitted copies of the Forms W-2 issued to the other 2 beneficiaries. We requested the Forms W-2 in our NOID and would also have considered these wages paid in the Petitioner's overall totality in the absence of its 2015 federal income tax return. The Petitioner indicated that it was unable to send its 2015 tax USCIS may consider the totality of the Petitioner's circumstances, including the overall magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612. USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of its net income and net current assets. USCIS may consider such factors as the number of years the petitioner has been doing business, the established historical growth of the petitioner's business, the petitioner's reputation within its industry, the overall number of employees, whether the beneficiary is replacing a former employee or an outsourced service, the amount of compensation paid to officers, the occurrence of any uncharacteristic business expenditures or losses, and any other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage.
In this case, the Petitioner states that it was incorporated in 2004, had 25 employees at the time the labor certification application was filed in January 2013, and had 14 U.S. employees at the time the instant petition was filed in September 2014. The record includes copies of the Petitioner's federal income tax returns for the years 2012-2014, which recorded the following pertinent figures. return in its response to our NOID as it had filed for an extension. Year Gross Receipts
2012 $2,532,934
2013 $3,034,808
2014 $1,284,,836
Salaries and Wages $ 996,092 $1,348,404 . $ 509,698
Net Income -$33,782 ~$ 80 $40,528
Net Current Assets $ 9532
$ 7907 $49,176
As shown in the tax returns, the Petitioner's gross receipts, after rising by around 20% in 2013, declined sharply in 2014. In almost direct proportion to the decrease in its gross receipts, the Petitioner's expenditures for salaries and wages also sharply declined in 2014. As previously noted, the Petitioner's employee total shrank from 25 in January 2013 to 14 in September 2014 These figures appear to indicate that the business shrank from 2013 to 2014. The evidence of record, therefore, does not show an established pattern of growth. There is no evidence of the Petitioner's USCIS records show that the Petitioner had one other Form 1-140 beneficiary whose petition was filed in 2007 (Receipt Number and approved the same year. If that beneficiary was employed by the Petitioner after the priority date of the instant petition, January 15, 2013, and had not yet acquired lawful permanent residence, the Petitioner must also establish its ability to pay that individual's proffered wage. p. 6 reputation within its industry, or the occurrence of any uncharacteristic business expenditures or losses.Not eligible at the time of filing Based on the documentation of record, we determine that the Petitioner has not established that the totality of its circumstances, as in Sonegawa, demonstrates its ability to pay the proffered wages of all of its Form I-140 beneficiaries from the priority date ofthe instant petition, January 15, 2013, up to the present. Therefore, the Petitioner has not established its continuing ability to pay the proffered wage of the Beneficiary in this petition.
Conclusion
When USCIS examines a petitioner's ability to pay the proffered wage, the fundamental focus of our determination is whether the employer is making a realistic job offer and has the overall financial ability to satisfy the proffered wage. See Matter ofGreat Wall, 16 I&N Dec. 142, 145 (Acting Reg'l Comm'r 1977). Based on the evidence of record in this case, we conclude that the Petitioner has not established its continuing ability to pay the proffered wages of the instant Beneficiary in consideration of all of its sponsored Form I-140 beneficiaries from the priority date of January 15, 2013, up to the present.
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. See section 291 ofthe Act, 8 U.S.C. § 1361. The Petitioner has not met that burden.
ORDER: The appeal is dismissed.
Cite as Matter ofS-S-S-, Inc., ID# 127050 (AAO Feb. 17, 2017)