The Petitioner, a provider of healthcare services, seeks to employ the Beneficiary as a staff endocrinologist 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. employer to sponsor a professional with an advanced degree or its equivalent for lawful permanent resident status.
The Director, Texas Service Center, denied the petition. The Director concluded that the record did not establish the Petitioner's ability to pay the proffered wage.
The matter is now before us on appeal. The Petitioner asserts that the evidence establishes its ability to pay the proffered wage. Upon de novo review, we will dismiss the appeal.
Law and Analysis
A. USCIS' Role in the Employment-Based Immigration Process
Employment-based immigration is generally a three-step process. First, an employer must obtain an approved ETA Form 9089, Application for Permanent Employment Certification (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). Next, the employer must file a Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Finally, if USCIS approves the immigrant visa petition, the 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. · By approving the labor certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position of staff endocrinologist. ~See section 212(a)(5)(A)(i)(I) of the Act. The DOL also certified that the employment of a foreign national in the p. 2 position will not adversely affect the wages and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(II). In these proceedings, we must consider whether the Beneficiary meets the requirements of the offered position certified by the DOL. We must also determine the eligibility of the Petitioner and the Beneficiary for the requested classification. See, e.g, Tongatapu Woodcraft Haw., Ltd. v Feldman, 736 P.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").
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.P.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 this case, the petition's priority date is September 11, 2015. This is the date that the DOL accepted the labor certification application for processing. See 8 C.P.R. § 204.5(d) (explaining how to determine a petition's priority date).
The labor certification states the proffered wage of the offered position of staff endocrinologist as $90 per hour, or $187,200 per year for a 40-hour work week. Therefore, the Petitioner must establish its ability to pay the proffered wage of $187,200 from September 11, 2015, onward.' Required evidence of the Petitioner's ability to pay the proffered wage in 2016 is not yet available. We will therefore consider the Petitioner's ability to pay only in 2015, the year of the petition's priority date.
Although unaddressed by the Director, the record also does not establish the Petitioner's intention to pay the Beneficiary the proffered wage. The Petitioner submitted a copy of the Beneficiary's employment agreement that casts doubt on its stated intention on the labor certification to pay her $187,200 per year. The employment agreement, dated August 7, 2015, states that the Beneficiary will receive base annual salaries of $141,300 during her first year of employment by the Petitioner and $163,800 once she obtains lawful permanent resident status. Thus, the employment agreement indicates that, once the Beneficiary obtains lawful permanent resident status, the Petitioner will pay her less than the annual proffered wage of.$187,200 indicated on the labor certification.
On appeal, the Petitioner submitted copies of payroll records indicating that it began paying the Beneficiary the proffered wage of $90 per hour on May 21, 2006. The record, however, does not contain evidence of termination or amendment of the employment agreement. Therefore, the record indicates that, once the Beneficiary obtains lawful permanent resident status, the Petitioner will pay her less than the proffered wage and does not establish the Petitioner's intention to pay the Beneficiarytheprofferedwageaccordingtothetermsofconditionsofthelaborcertification. Apetitionermustintendto employ a beneficiary pursuant to the terms and conditions specified on an accompanying labor certification. See Matter oflzdebska, 12 I&N Dec. 54,55 (Reg'! Comm'r 1966) (affirming a petition's denial where a petitioner did not intend to employ a beneficiary as a live-in domestic worker pursuant to the terms of an accompanying labor certification). Also, under 20 C.F.R. § 656.20(c)(3), the Petitioner must establish that the wage offered is not based on commissions, bonuses, or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis. The Petitioner must resolve this issue in any future filing.
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 a beneficiary the full proffered wage, we next examine whether it generated sufficient annual amounts of net income or net current assets to pay any differences between the wages paid and the proffered wage. If a petitioner's net income and net current asset amounts are insufficient, we may also consider the overall magnitude of its business activities. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 2 (Reg'l Comm'r 1967).
Here, the record indicates the Petitioner's employment of the Beneficiary in the offered position beginning in November 2015. A copy of an IRS Form W-2, Wage and Tax Statement, indicates the Petitioner's payment of$18,474.24 to the Beneficiary in 2015. The $18,474.24 amount on the Form W-2 does not equal or exceed the annual proffered wage of $187,200. However, in considering the Petitioner's ability to pay based on the actual wages paid to the Beneficiary, we may "pro-rate" the annual proffered wage to consider only the portion of wages due from the priority date to the end of the year. Considering only the time from September 11, 2015, to December 31, 2015, which constitutes a period of 16 weeks, the pro-rated wage obligation for 2015 was $57,600.
When we pro-rate the proffered wage on this basis, the Petitioner :t:nusfshow that the wages to be considered were received after the priority date.Not eligible at the time of filing Here, the Petitioner has established that the wages paid to the Beneficiary occurred after the September 11, 2015, priority date. As such, the wages paid to the Beneficiary may be considered against the pro-rated wage obligation for 2015. However, because the wage amount paid of $18,474.24 is not equal to or greater than the pro-rated wage obligation of $57,600, the record does not establish the Petitioner's ability to pay the proffered wage in 2015, based on actual wages paid.
Nevertheless, we credit the Petitioner's payments to the Beneficiary. As such, the Petitioner need only demonstrate its possession of net income or net current asset amounts sufficient to pay the difference between the annual proffered wage and the wages it paid the Beneficiary in 2015, or $168,725.76.
The Petitioner's federal income tax return for 2015 reflects net income of $98,593. This amount does not equal or exceed the $168,725.76 difference between the annual proffered wage and the Petitioner's payment to the Beneficiary. The record therefore does not establish the Petitioner's ability to pay the proffered wage in 2015 based on its net income.
The Petitioner's federal income tax return for 2015 reflects net current assets of -$55,872. This negative amount does not equal or exceed the difference between the annual proffered wage and the 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. 2015); Rivzi v. Dep't ofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), a.ff'd, 627 Fed. App'x. 292 (5th Cir. 20 15).
Petitioner's payment to the Beneficiary. The record therefore does not establish the Petitioner's ability to pay the proffered wage in 2015 based on its net current assets.
In response to the Director's request for evidence, the Petitioner submitted a letter from the accountant who prepared its 2015 tax return. The letter states that the Petitioner's tax return used the cash basis of accounting, which recognizes revenues upon their receipt and expenses upon their payment. The accountant stated that he calculated estimated net current assets of $194,000 for the Petitioner in 2015 using the accrual accounting method, which recognizes revenue and expenses when they are earned and incurred. However, we generally do not permit a petitioner to change its accounting method to demonstrate its ability to pay a proffered wage. We are not persuaded when a petitioner submits financial documentation prepared pursuant to one method, but then relies on the other to shift revenue or expenses from one year to another to suit its purpose. on the Petitioner's tax returns shall be considered as they were submitted to the IRS, not as amended pursuant to the accountant's adjustments. Moreover, the Petitioner did not submit evidence to support the accountant's calculations. The accountant asserted the Petitioner's generation of $469,000 in accounts receivable in 2015. But the record lacks evidence to support that claim. See Matter of So.ffici, '22 I&N Dec. 158, 165 (Comm'r 1998) (citation omitted) (holding that unsupported assertions are insufficient to meet the burden of proof in visa petition proceedings). Therefore, the accountant's letter does not establish the Petitioner's ability to pay the proffered wage.
On appeal, the Petitioner submits copies of monthly bank account statements from September 2015 through December 2015. The Petitioner asserts that the account balances exceed the monthly proffered wage of $15,600 and therefore demonstrate the Petitioner's ability to pay the pro-rated proffered wage in 2015. While 8 C.F.R. § 204.5(g)(2) allows the submission of additional materials "in appropriate cases," the Petitioner's evidence does not establish that the bank statements reflect additional available funds unreported on its tax return(s) ,as taxable income (income minus deductions) or cash (as part of its net current assets on Schedule L). The Petitioner's bank account statements therefore do not establish the Petitioner's ability to pay the proffered wage.
As previously indicated, we may consider a petitioner's ability to pay a proffered wage beyond its net income and net current assets. See Sonegawa, 12, I&N Dec. at 614-15. We may consider such factors as: the number of years a petitioner has conducted business; the growth of its business; its number of employees; the occurrence of any uncharacteristic business expenditures or losses; its reputation in its industry; whether a beneficiary will. replace a current employee or outsourced service; or other evidence of its ability to pay.
Once a taxpayer files a return using one accounting method, the Internal Revenue Service (IRS) must approve the taxpayer's change to another. See Internal Revenue Serv., Publication 538, Accounting Periods and Methods, at http://www.irs.gov/publications/p538/ ar02.html#d0e2874 (accessed Jan. 6, 2017).
The amounts shown
In this case, the record indicates the Petitioner's continuous business operations for more than 20 years and its employment of 43 people. But the Petitioner did not submit financial records from before 2015, precluding us from examining the growth of its business. Also, unlike the petitioner in Sonegawa, the Petitioner has not demonstrated an outstanding reputation in its field or the occurrence of uncharacteristic business expenditures or losses. The record also does not indicate the Beneficiary's replacement of a current employee or outsourced service. Thus, considering the totality of the circumstances pursuant to Sonegawa, the record does not establish the Petitioner's ability to pay the proffered wage.
For the foregoing reasons, the record does not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm the Director's decision and dismiss the appeal.
Conclusion
Thepetitionwillremaindeniedforthereasonstatedabove. Invisapetitionproceedings,apetitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127,128 (BIA 2013). Here, the Petitioner did not meet that burden.
ORDER: The appeal is dismissed.
Cite as Matter ofE-C- P.C., ID# 102649 (AAO Jan. 27, 2017)