Degree or an Alien of Exceptional Ability Pursuani to Section 203(h)(2) of the Immigration apd 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 documents related 10 this maHer 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 he made to that office. If ¥OU believe the AAO inappropriately applied the' law in reaching· its dt:cisiim, or you havt: addil iunal information that you wish to have considered, you may file a motion to reconsider or a motion to n:open in accordance with the instructions on Form I-290B; Notice of Appeal or Motion, with a fct: 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. § l03.5(a)(l)(i) requires any motion to he filed within 30 days of the decision that the motion_ seeks tl? reconsider or reopen.
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
PageL
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, ·and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a software research and development company. It seeks to employ the beneficiary permanently in the United States.as a senior software architect. As required by statute; the petition is accompanied by a Form ETA 750, Application for Alien 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 p~y the beneficiary the proffered wage beginning on the pri.ority 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 February 9, 2010 denial, the single 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.F.R. § 204.5(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.
The regulation at 8 C.F.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 requires an offer of employment must be accompanied by evidence, that the prospective United States employer ha~ 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 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 isthe date the Form ETA 750 was accepted for processing by any office within . the employment system of the DOL. See 8 C.F.R. § 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750 as certified p. 3 by the DOL and submitted with the instant petition. Matter of Wing's Tea House; 16 I&N Dec. 15~ (Act. Reg. Comril. 1977).
Here, the Form ETA 750 was accepted on January 23, 2002. · The proffered wage as stated on the Form ETA
750 is $80,000 per year.
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 recoq:l of proceeding shows that the petitioner is structured as a C corporation. On the petition, the petitioner claimed to have been established in 1996, to have a gross annual income of $500;000, and to currently employ 5 workers. According to .the tax returns in the record, the petitioner's fiscal year is based on a· calendar year. On the 'Form ETA 7508, signed by the beneficiary on July 11, 2007, the beneficiary claimed to have worked for the petitioner since August 2005.
The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of a Form ETA 750 establishes a priority date for any immigrant petition later based on the Form ETA 750, 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 realist,ic. See Matter of Great Wall, 16 I&N Dec. 142 (Acting Reg. Comm. 1977); see also~ 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 circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 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 1 The submission of additional evidence on appeal is allowed by the instructions to the Form 1-2908, which are incorporated into the regulations at 8 C.F.R. § 103.2(a)(1). The record in the instant case provides no reason to preClude consideration of any of the documents newly submitted on appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988).
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 beneficiary's Forms W-2 for 2005 through 2011 shows compensation received from the petitioner as detailedin the table below.
Beneficiary's actual Wage increase needed to
Year Compensation Proffered wage pay the proffered wage 2011 . $100,500.00 $80,000 $0
2010 $146,312.00 . $80,000 $0
2009 $81,249.94 $80,000 $0
2008 $72,999.92 $80,000 $7,000.08
2007 $86,231.20 $80,000 $0
2006 $62,449.86 $80,000 $17,550.14
2005 $39,680.85 $80,000 $40,319.15
2004 $0 $80,000 $80,000
2003 $0 $80,000 $80,000
2002 $0 $80;000 $80,000
The petitioner has established that it paid the beneficiary the proffered wage in 2007, 2009, 2010, and 2011 and less than the full proffered wage in 2005, 2006, and 2008. The petitioner did not pay the beneficiary any wages from 2002 through 2004. Therefore, USCIS will review the petitioner's net income and net current assets from 2002 through 2006 and 2008.
If, as in this case, the petitioner has not established that it paid the beneficiary an amount at ieast equal to the proffered wage during the required 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 (6th 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.CP. 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), a.ff'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplac~d. ·Showing that the petitioner's gross receipts ex<;eeded 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 rel~ed on the petitioner's net income tigure, as stated on the petitioner's corporate income tax : returns, rather than the petitioner's gross income. p. 5 The court specifically rejected the argument that USCIS should have considered income before expenses were paid 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 respect to depreciation, the court in River Street Donuts noted:
The AAO recognized that a depreciation deduction is a syst~matic 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 ~n 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 thelamount spent on a long term tangible asset is a "real" expense.
River Street Donllls 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 thai these tigures 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 record contains the petitioner's 2002 through 2011 federal income tax returns.
The petitioner's tax returns show its net income as detailed in the table below.
· Year
2008
2006
2005
2004
2003
2002 3
Net Income
$135,426
-$22,486
-$18545 .
-$17,079
-$12,679
The petitioner has .established that it had sufficient net income to pay the proffered wage for 2008. The petitioner has not established that it had sufficient net income to pay the difference between the wages actually paid to the beneficiary and the proffered wage from 2003 through 2006. Therefore, USCIS will review the petitioner's ne~ current assets for thoseyears . .
Net current assets are the difference between the ~etitioner's current assets ~nd current liabilities. · A corporation'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 gr~ater 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 as shown in the following table. ·-
Year Net Current Assets
2006 -$145,732
2005 -$100,496
2004 -$146,796
2003 -$164,874
The petitioner's net current assets ~ere insufficient to pay the difference between the wages actually paid to the beneficiary and the proffered wage from 2003 through 2006. · On appeal, counsel states that the AAO should consider the letter submitted by the petitioner 's CPA and claimed that the petitioner "deferred" revenue until subsequent years. However, counsel's reliance on unaudited financial records is misplaced. The regulation at 8 C.F.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 . became the successor . in interest to In September 2003 , was bought _ .back by the former . owner, through his wholly owned corporation ,· was a successor in interest to On December 3,
2003, changed its name to and obtained a new federal identification number. Based on a review of financial data in the record, it appears that the· petitioner ' s temporary predecessor had the ability to pay the proffered wage during that short period of time.
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 are not reliable evidence and are insufficient to demonstrate the ability to pay the proffered wage.Claims not backed by documents Furthermore, this.office is not persuaded by an analysis in which the petitioner seeks to rely on the returns prepared pursuant to one 111ethod of accounting but then seeks to shift revenue from another year as convenient to the petitioner's present purpose. Counsel also submitted year-end bank account statements for 2003, 2004; 2005, and 2006. Counsel's reliance on the balance in the petitioner's bank account is misplaced. First, bank statements are not among the three types of evidence, enumerated in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases," the petitioner in this case has not demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the petitioner. Second, bank statements show the amount in a~ account on a given date, and cannot show the sustainable ability to pay a proffered wage. Third; no evidence was submitted to demonstrate that the funds reported on the petitioner's bank statements somehow reflect additional available funds that were not reflected on its tax retum(s), such as the petitioner's taxable income (income· minus deduCtions) or the cash specified on Schedule L that was considered above in determining the petitioner's net current assets.
Since the petitioner has 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 the beneficiary, or its net income. or net current assets, USCIS may consider the overall magnitude of the petitioner's business activities in its determination of the petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 121&N Dec. 612.
The petitioning entity in Sonegawa had been · in business for over 11 years and routinely earned a gross annual income of about $100,000. During the year in which the petition was filed in that case, the petitioner changed business locations and paid rent on both the old and new locations for five months . There were large moving costs and also a period of time when the petitioner was unable to do regular business. The Regional Commissioner determined that the petitioner's prospects tor a . resumption of successful business operations were well established. The petitioner was a fashion ·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, 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 ex'penditures or losses, the petitioner's reputation · within its industry, p. 8 . ' . •· 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 . The AAO recognizes that the petitioner has been in business since 1996. Nevertheless, t.he evidence submitted does not reflect a pattern of significant growth or the occurrence of an uncharacteristic business expenditure or loss that would explain its inability to pay the proffered wage from the priority date. In addition, no evidence has been presented to show that the petitioner has a sound and outs~anding business reputation as in Sonegawa .. Unlike Sonegawa, the petitioner has not submitted any evidence reflecting the company's reputation or historical growth since its inception in 1996. Nor has it included any evidence or detailed explanation of the corporation's milestone achievements. 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. ·
Beyond the decision of the director, the petitioner has also not established that the beneficiary is qualified .for the offered position. The petitioner must establish that the beneficiary possessed all the education, training, and· experience specified on the labor certification as of the priority date. 8 C.F.R. § 103.2(b)(l), (12). See Matter ofWing's Tea House. 16 I&N Dec. 158, 159 {Acting Reg. Comm. 1977); see al.~o Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971 ). In evaluating the benefi~iary's qualifications , USCIS must look to the job offer portion of the labor certification to determine the required qualifications for the position. USCIS may not ignore -a term of the labor certification, nor may it impose additional requirements. See Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006. (9th Cir. 1983); Stewart Infra-Red Commissary of Massachusetts, Inc. v: Coomey, 661 F.2d 1 {1 Cir. 198'1).
In the instant case, the labor certification states that the offered position requires a bachelor's · degree, or foreign educational equivalent, in computer science, engineering, or related technical field and six years of experience m the job offered or in the alternate occupations of software engineering or programming ..
The beneficiary's claimed qualifying experience must be supported by letters 'from employers giving the name, address, and title of the employer, and a description of the beneficiary's experience . See 8 , C.F.R. § 204.5(g)(l ). .
The beneficiary set forth his credentials on the labor certification and signed his name, under a declaration that the contents of the form are true and correct under the penalty of perjury. On the section of tKe labor certification · eliciting infonmition of the beneficiary's education, and elsewhere in the record, he states that he attended in Bulgaria, and received a master 's degree . On the section of the labor certification eliciting information of the beneficiary's work experience, he represented that he has worked as a seniorsoftware developer (computer programmer) for the petitioner p. 9 from Augilst 2005 through the date that the.Form ETA 750 was signed. He worked as a senior software developer
(programmer/engineer) for from September 2002 to August 2005 and as a senior software developer (programmer/engineer) for from April 2000 · to September 2002. He also worked par(-time as a software developer U?rogrammer) for . from February 1993 to May 1999.
These letters are insufficient to support the claimed work experience because they do not provide a sufficient description of the job duties for the beneficiary. Moreover, the beneficiary's employment with was on a part-time basis, so it is unlikely that the beneficiary had the required . six years of prior experience.
The evidence in the record does not establish that the beneficiary possessed the required experience · . set fort~ on the Tabor certification by the priority date. Therefore, the petitioner has also failed to r establish that the beneficiary is qualified for the offered position.
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 identify 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 ), affd, 345 F.3d ·683 (9th Cir. 2003); see also Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis).
The burden ofproof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.. The petl.tioner has not met that burden.
ORDER: The appeal is dismissed.