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 law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied 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 motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
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Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner describes itself as an information technology solutions provider. It seeks to permanently employ the beneficiary in the United States as a quality assurance analyst. The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 1 As required by statute, ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL), accompanied the petition. The Director found that the petitioner did not establish the beneficiary's five years of progressive post-bachelor work experience in the job offered or in an alternate occupation.Five years of progressive experience not documented Further, the director found that the beneficiary did not possess the required 72 years of work experience in the job offered or in an alternate occupation.
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. Fmther elaboration of the procedural history will be made only as necessary.
As set forth in the director's June 4, 2014 denial, an issue in this case is whether or not the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification.
The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. We conduct appellate review on a de novo basis.2 We consider all pertinent evidence in the record, including new evidence properly submitted upon appea1.3 We may deny a petition that fails to comply with the technical requirements of the law even if the director does not identify all of the grounds for denial in the initial decision.4
As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of 1 Section 203(b)(2) of the Act provides immigrant classification to members of the professions holding advanced degrees, whose services are sought by an employer in the United States.
Labor (DOL). 5 The priority date of the petition is July 12, 2013.6 The petitioner must establish that the beneficiary satisfied all of the educational, training, experience and any other requirements of the offered position by the priority date. 8 e.F .R. § 103 .2(b )(l), (12). See Matter ofWing's Tea House, 16 I&N Dec. 158, 159 (Act. Reg. eomm. 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. eomm. 1971).
In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, users may not ignore a term of the labor certification, nor may it impose additional requirements. See 1vfadany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st eir. 1981). Even though the labor certification may be prepared with the beneficiary in mind, users has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames. com, Inc. v. Michael Chertoff, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006).
Part H of the labor certification states that the offered position has the following mm1mum requirements:
H.4.
H.5.
H.6.
H.7.
H.8.
H.9.
H.10.
H.14.
Education: Master's degree in eomp. Sci., Inf Systems, IT, Eng. or related.
Training: None required.
Experience in the job offered: 12 months.
Alternate field of study: None accepted.
Alternate combination of education and experience: Yes, bachelor's degree and 72 [years] of experience.7
Foreign educational equivalent: Accepted.
Experience in an alternate occupation: Yes, 12 months.
Specific skills or other requirements: Employer will accept any suitable combination of education, training or experience. Additional requirements: Academic background or work experience to include: 1) full QA life cycle; 2) test automation tools; 3) order management and back office systems; and 4) application programming and middle tier architectures. * Experience in H. 8-C must be progressive.
Part J of the labor certification states that the beneficiary possesses a Bachelor's degree in computer engineering, 2001, from India. The record contains a copy of the beneficiary's diploma and transcripts from , India, issued in 2001.
The record also contains an evaluation of the beneficiary's educational credentials prepared by Dr. in July
2005. The evaluation states that the beneficiary possesses the foreign eq�ivalent of a Bachelor of Science degree in Computer Engineering.
We have reviewed the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO). According to its website, www.aacrao.org, AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education admissions and registration professionals who represent more than 2,600 institutions and agencies in the United States and in over 40 countries around the world." http://ww\v.aacrao.org/About-AACRAO.aspx (accessed February 13, 2015). Its mission "is to serve and advance higher education by providing leadership in academic and emollment services." Id.
According to the registration page for EDGE, EDGE is "a web-based resource for the evaluation of foreign educational credentials." http://edge.aacrao. org/info.php (accessed February 13, 2015). Authors for EDGE must work with a publication consultant and a Council Liaison with AACRAO's National Council on the Evaluation of Foreign Educational Credentials.8 If placement recommendations are included, the Council Liaison works with the author to give feedback and the publication is subject to final review by the entire Council. Id. USCIS considers EDGE to be a reliable, peer-reviewed source of information about foreign credentials equivalencies.9 EDGE states that the Bachelor of Engineering (BEngr) from India is awarded upon completion of four years of tertiary study beyond the Higher Secondary Certificate (or equivalent) and that the degree represents the "attainment of a level of education comparable to a bachelor's degree in the United States."
In the instant case, the petitioner claims that the beneficiary may be classified as an advanced degree professional based on a foreign equivalent degree to a U.S. bachelor is followed by at least five years of progressive experience in the specialty.10
See An Author's Guide to Creating AACRAO International Publications available at http://www.aacrao.org/Libraries/Publications_Documents/GUIDE_TO_CREATING_INTERNATIONAL_PUBLICATI ONS l.sflb.ashx.
Evidence relating to qualifying experience must be in the form of a letter from a current or former employer and must include the name, address, and title of the writer, and a specific description of the duties performed by the beneficiary. 8 C.F.R . § 204.5(g)( l) . If such evidence is unavailable, USCIS may consider other documentation relating to the beneficiary's experience. Id.
Part K of the labor certification states that the beneficiary possesses the following employment expenence:
- Quality Assurance Analyst with present.
- Project Lead/ QA Analyst with until AprilS, 20 13.
The record contains the following experience letters:
- A letter from Administrative Officer on
CT from April 6, 2013 until in India from February 22, 2003 letterhead stating that the company employed the beneficiary as a lecturer from April 2002 until February 2003. Two additional letters from the beneficiary's colleagues support this work experience letter. This employment experience is not listed on the ETA Form 9089.11Support letters generic or unsupported
- An offer of appointment from General Manager - HR, on letterhead stating that the company offered the beneficiary employment as a software engineer trainee on November 23, 2000.
- A letter from Human Resources, on letterhead, dated
June 11, 2013, stating that the company employed the beneficiary as a project lead from February 22, 2003.
- A letter from Human Resources, on letterhead dated May 5, 2014, stating that the company employed the beneficiary as a project lead from February 25, 2003 until April 5, 2013.12
The director's decision denying the petition found that upon review of the work experience letters submitted by the petitioner in .its initial filing and in response to the director's notice of intent to deny, the beneficiary did not have the required five years of progressive work experience. Therefore, degree. Jf a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree
In Matter of Leung. 16 I&N Dec. 2530 (BIA 1976), the Board's dicta notes that the beneficiary's experience, without such fact certified by DOL on the beneficiary's Form ETA 7508, lessens the credibility of the evidence and facts asserted.
The record establishes that the company where the beneficiary obtained her work experience, was purchased by another company , which became p. 6 the petition could not be approved under Section 203(b )(2) of the Act, 8 U.S. C. § 1153(b )(2), which provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(1 ). Further, the director determined that the petitioner did not establish that the beneficiary possessed 72 years of experience, as required by the labor certification.13 Thus, the petition was denied accordingly.
On appeal, the petitioner has offered another experience letter from Project Manager, on letterhead dated June 25, 2015, stating that the company employed the beneficiary in progressively more responsible job duties during her tenure from February 2003 to April 2013. Upon review of the entire record, including evidence submitted on appeal and in response to our RFE, the petitioner has established that the beneficiary possessed six years of post-baccalaureate experience as required by the labor certification and for classification as an advanced degree professional. Therefore, the director's decision is withdrawn. However, the petition is not approvable for the reasons discussed below.
Beyond the decision of the director, 14 the petitioner has failed to establish its continuing ability to pay the proffered wage as of the priority date. See 8 C.F.R. § 204.5(g)(2).
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any pet1t10n 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 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 repo1is, federal tax returns, or audited financial statements.
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 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 of Great Wall, 16 l&N Dec. 142, 144 (Acting Reg'l Cornrn '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 financial resources sufficient to pay the beneficiary's proffered wages, although the totality of the 13 As noted above, the record reflects that the Part H.8C of the labor certification was intended to read 72 months. 14 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 i dentify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afl'd, 345 F.3d 683 W" Cir. 2003); see also Soltane v. DOJ, 381 F. 3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). p. 7 circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter o.fSonegcrvva, 12 I&N Dec. 612, 614-15 (Reg'l eomrn'r 1967).
Here, the ETA Form 9089 was accepted on July 12, 2013. The proffered wage as stated on the ETA Form 9089 is $89,606 per year.
According to users records, the petitioner has filed 22 Form I-140 petitions on behalf of other beneficiaries. Accordingly, the petitioner must 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 of Great Wall, 16 l&N Dec. 142, 144-145 (Acting Reg'l Comrn'r 1977). We sent the petitioner an RFE concerning these additional beneficiaries. The petitioner responded with the requested evidence for 13 additional beneficiaries.
The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the petition, the petitioner claimed to have been established in 1999 and to currently employ 22 workers. According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. On the ETA Form 9089, signed by the beneficiary on March 24, 2014, the beneficiary claimed to have worked for the petitioner.
In determining the petitioner's ability to pay the proffered wage during a given period, USeiS will first examine whether the petitioner employed and paid all of the beneficiaries during that period. If the petitioner establishes by documentary evidence that iLemployed the beneficiaries at a salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the instant case, the petitioner has not established that it paid all of its beneficiaries the full proffered wage during any relevant timeframe including the period from the priority date in 2013 or subsequently. Specifically, and based on the evidence we received in response to our RFE, the total proffered wages owed by the petitioner to all of its beneficiaries is $545,566.00. In 2013, the petitioner paid $213,294.00 in wages to its beneficiaries, including the instant beneficiary, according to the Forms W-2 submitted by the petitioner. Thus, the petitioner must demonstrate that it can pay the difference between wages actually paid to the beneficiaries and the proffered wages, a balance of at least $332,272.00, in 2013.15 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, users will next examine the net income figure reflected on the petitioner's federal income tax return, without consideration of depreciation or other expenses. River St. Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873, 880 (E.D. Mich. 2010), aff'd, 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 Chang v. Thornburgh, 719 F. Supp. 532, 537 (N.D. Tex.
1989); KC.P. Food Co. v. Sava, 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 receipts and wage expense is misplaced. Showing that the petitioner's gross receipts 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., 623 F. Supp. at 1084, the court held that the Immigration and Naturalization Service, now users, 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 users should have considered income before expenses were paid rather than net income. See also Taco Especial, 696 F. Supp. 2d at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses).
With respect to depreciation, the court in River Street 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 during 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 methods. Nonetheless, the AAO explained that depreciation represents an actual cost of doing business, which could represent either the diminution 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 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 depreciation back to net income. Namely, that the amount spent on a long term tangible asset is a "real" expense.
River St. 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).
The record before us closed on December 16, 2014 with the receipt by us of the petitioner's submissions in response to our RFE. As of that date, the petitioner's 2014 federal income tax return was not yet due. Therefore, the petitioner's income tax return for 2013 is the most recent return available. The petitioner's tax returns demonstrate its net income for 2013, as shown in the table below.
- In 2013, the Form 1120S stated net income16 of$9,907.
Therefore, for the year 2013, the petitioner did not have sufficient net income to pay the difference between wages already paid and the proffered wages.
As an alternate means of determining the petitioner's ability to pay the proffered wage, USCIS may review the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets and current liabilities.17 A corporation's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are sho'A'Il on lines 16 through 18. If the total of a corporation'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 current assets for 2013, as shown in the table below.
- In 2013, the Form 1120S stated net current assets of$196,666.
Therefore, for the year 2013, the petitioner did not have sufficient net current assets to pay the difference between the wages already paid and the proffered wages.
Therefore, from the date the ETA Form 9089 was accepted for processing by the 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 its beneficiaries, or its net income or net current assets.
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 lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. As in Sonegawa, users may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of a petitioner's net income and net current assets. users 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 overall number 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 an outsourced service, or any other evidence that users deems relevant to the petitioner's ability to pay the proffered wage.
In the instant case, the petitioner was established in 1999 and claims to employ 22 workers.
Although the petitioner claims on its 2013 tax return to have $1,845,325 in gross sales, officer compensation of $84,135, and paid wages and salaries of $801,637, the record contains no additional information to assess the petitioner's historical grow1h of its business, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, and whether the beneficiary is replacing a former employee or an outsourced service. Further, the petitioner did not provide a complete response to our RFE concerning its multiple beneficiaries, which leaves eight beneficiaries without the proffered wage. If we were to include these eight additional beneficiaries at the lowest proffered wage, the total proffered wage would amount to $985,246.00, which is more than the wages paid on the petitioner's tax return. The record does not demonstrate that the petitioner could reasonably take on an additional 21 employees for 2013. 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.
The appeal will be dismissed for the above stated reasons, with each considered as an independent and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Jvfatter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.
ORDER: The appeal is dismissed and the petition will remain denied.