DATE:
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO).
20 Massachusetts Ave., N.W., MS 2090
Washington, DC 20529-2090
·u.s. Citizenship and Immigration
Services
Office: NEBRASKA SERVICE CENTER FILE:
JAN 11 2013
INRE:
PETITION:
Petitioner:
Beneficiary:
Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 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 in your case. All of the docum~nts related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen.
Thank you,
~DJ)
Ron Rosenberg
Acting Chief, Administrative Appeals Office www .uscis.gov
(b)(6)Page 2
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The petition is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is an architectur~/construction business. It seeks to employ the beneficiary permanently in the United States as a chief executive officer. As required by statute, the petition is accompanied by ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on the priority date of the visa petition. The director denied the petition according! y.
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. Further elaboration of the procedural history will be made only as necessary. As set forth in the director's October 21, 2011 denial, the primary issue in this case is whether the petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtains lawful permanent residence.
In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions.holding advanced degrees or their equivalent and whose services are sought by an employer in the United States. An advanced ·degree is a United States academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.P.R. § :?04.5(k)(2). The regulation further states: "A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree." /d.
Section 203(b )(2) of the Act also includes aliens "who because of their exceptional ability in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the. United States." · The regulation at 8 C.P.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertis~ significantly above that ordinarily encountered."
The regulation at 8 C.P.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 req1:1ires. 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 pfiority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the p. 3 form of copies of annual reports, federal tax returns, or audited financial statements.
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the ETA Form 9089 was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d). · Here, the ETA Form 9089 was accepted on October 6, 2007. The proffered wage as stated on the ETA Form 9089 is $130,000.00. per year. The ETA Form 9089 states that the position requires a U.S. master's degree in business administration.
The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.1 .
The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the petition, the petitioner claimed to have been established on October 14, 2005. 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 September 14, 2007, the beneficiary does not claim to have been employed by the petitioner.
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA Form 9089 establishes a priority date for ariy 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 I&N Dec. 142 (Acting Reg. Comm. 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 fmancial resources sufficient to pay the beneficiary's proffered wages, although the totality of the circumstances affecting the petitioning business will be .considered if the evidence warrants such consideration. See Matter ofSonegawa, 12 I&N Dec. 612 (Reg. Comm. 1967). In determining the petitioner's ability to pay the proffered wage during a given period, USCIS will first examine whether the petitioner employed and paid the beneficiary during that period. 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 will be considered prima facie proof of the petitioner's ability to pay the proffered wage.
The record of proceeding contains evidence of wages paid to the beneficiary as shown in the table below:
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- In 2007, the IRS Form 1099-MISC stated total wages of $25,300.00 (a deficiency of $104,700.00).
- In 2008, the IRS Form 1099-MISC stated total wages of $18,000.00 (a deficiency of $112,000.00).
If, as in this case, the petitioner does not establish that it employed and paid the beneficiary an amount 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 expenses. River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1 Cir.
2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 2010), aff'd, No. 10-1517 (61h Cir. filed 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 Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (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., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization Service, now USCIS, 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 USCIS should have : considered income before expenses were pajd rather than net income. See Taco Especial v. Napolitano, 696 F. Supp. 2d at 881 (gross profits overstate an employer's ability to pay because it ignores other necessary expenses).
With
(b)(6)PageS depreciation back to net income. Namely, that the amount spent on a long term tangible asset is a "real" expense.
River Street Donuts 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 at 537 (emphasis added).
For a
C corporation, USCIS considers net income to be the figure shown on Line 28 of the Form 1120, U.S. Corporation Income Tax Return. The petitioner's 2010 t~ return is the most recent tax return in the record. The proffered wage is $130,000.00 per year. The petitioner's tax returns demonstrate its net income as shown in the table below.
- In 2007, the Form 1120 stated net income of $39,812.00 .
. • In 2008, the Form 1120 stated net income of $43,806.00.
- In 2009, the Form 1120 stated net income of -$98,262.00.
- In 2010, the Form 1120 stated net income of $128,506.00.
Therefore, for the years 2007 and 2008, the petitioner did not establish that it had sufficient net income to pay the difference between wages paid to the beneficiary and the proffered wage, or the full proffered wage in 2009 and 2010.
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? A coq)oration's year-end current assets are shown on Schedule L, lines 1 through 6. Its year-end current liabilities are shown 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 ..
USCIS will not consider the petitioner's total assets in evaluating its ability to pay the proffered wage. These total assets include items such· as equipment and real· ~state which the petitioner needs to do business. It is unlikely that such assets would be sold in order to pay the beneficiary the proffered wage. Rather, USCIS will review current assets and liabilities in assessing the petitioner's likely capabilities. The petitioner's tax returns demonstrate its end-of-year net current assets as shown in the table below:
- In 2007, the Form 1120 stated net current assets of $31,527.00.
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- In 2008, the Form 1120 stated net current assets of $50,984 .• 00.
- In 2009, the Form 1120 stated net current assets of -$724,886.00.
- In 2010, the Form 1120 stated net current assets of $64,358.00.
Therefore, for the years 2007 and 2008, the petitioner did not establish that it had sufficient net current assets to pay the difference between wages paid to the beneficiary and the proffered wage, or the full proffered wage in 2009 and 2010.
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 <:>f wages paid to the beneficiary, or its net income or net current assets.
On appeal, counsel asserts that the director erred in not properly taking into account the totality of circumstances and failing to accurately assess the evidence.
Counsel asserts that the petitioner provided financial statements evidencing its ability to pay the proffered wage. The record of proceeding contains copies of the petitioner's unaudited financial statements for 2009 and 2010. Counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.P.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those financial statements must be audited. As there is no accountant's report accompanying these statements, the AAO cannot conclude that they are audited statements. Unaudited financial statements are the representations of management. The unsupported representations of management ar~ not reliable evidence and are insufficient to demonstrate the ability to .pay the proffered wage.Claims not backed by documents Regardless, it is unclear how these financial statements could alter the data in the tax returns from 2007 through 2010 which clearly show an inability to pay the beneficiary a salary of $130,000.00 per year. Counsel further asserts that USCIS failed to consider the pending work contracts that were submitted by the petitioner as evidence. Counsel infers that USCIS should consider the petitioner's anticipated business growth and increased profits in the future. While the petitioner may anticipate business growth and increased profits in the future, it still must show that it had such capacity beginning on the priority date, October 6, 2007. The fluctuations in the petitioner's gross receipts ($1,164,387.00 in 2007, $1,597,475.00 in 2008, $243,632.00 in 2009, and $1,505,345.00 in 2010), further undermine the petitioner's claim to have been able to pay the beneficiary's wage on a continuous basis. It is not realistic that the petitioner could have paid the proffered wage to the beneficiary, assessing the totality of the circumstances. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 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'l Comm'r 1972)).
Counsel asserts that the petitioner provided proof that it has paid wages to contract employees, and that that amount coupled with the petitioner's net income amount in 2010 is sufficient to demonstrate its ability to pay the proffered wage. Contrary to counsel's claims, net income p. 7 amounts cannot be added to wages paid to other employees in assessing the petitioner's ability to pay the proffered wage. In general, wages already paid to others are not available to proVe the ability to pay the wage proffered to the beneficiary at the priority date of the petition and continuing to the present.
Counsel advocates combining the petitioner's net income with its net current assets to demonstrate the petitioner's ability to pay the proffered wage. This approach is unacceptable because net income and net current assets are not, in the view of the AAO, cumulative. The AAO views net income and net current assets as two different methods of demonstrating the petitioner's ability to pay the wage--one retrospective and one prospective. Net income is retrospective in nature because it represents the sum of income remaining after all expenses were paid over the course of the previous tax year. Conversely, the net current assets figure is a prospective "snapshot" of the net total of petitioner's assets that will become cash within a relatively short period of time minus those expenses that will come due within that same period of time. Thus, the petitioner is expected to receive roughly one-twelfth of its net current assets during each month of the coming year. Given that net income is retrospective and net current assets are ·prospective in nature, the AAO does not agree with counsel that the two figures can be combined in a meaningful way to illustrate the petitioner's ability to pay the proffered wage during a single tax year. Moreover, combining the net income and net current assets could double-count certain figures, such as cash on hand and, in the case of a taxpayer who reports taxes pursuant to accrual convention, accounts receivable.
Counsel's assertions and the evidence presented on appeal do not outweigh the evidence of record that demonstrates that the petitioner could not·pay the proffered wage from the day the ETA Form 9089 was accepted for processing by the DOL.Did not show the waiver outweighs labor certification 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. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980).
reputation as a couturiere. As in Sonegawa, USCIS 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. 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 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 USCIS deems relevant to the petitioner's ability to pay the proffered wage. ·
In assessing the totality of the circumstances in this case, it is concluded that the petitioner has not established that it had the continuing ability to pay the proffered :wage. There are no facts paralleling those in Sonegawa that are present in the instant matter to a degree sufficient to establish that the petitioner had the ability to pay the proffered wage. Counsel asserts on appeal that the petitioner has been directly affected by the economic recession which has affected all industries in the United States, that the recession has temporarily worsened the petitioner's financial situation, and that this has disrupted the petitioner's regular course of business. A broad statement by counsel that the petitioner's business was impacted adversely by the economic recession does not by itself demonstrate the petitioner's continuing·ability to pay the proffered wage beginning on the priority date. Rather, such a general statement merely suggests,