Non-Precedent Decision of the Administrative Appeals Office DATE: MAY 2, 2019
APPEAL OF NEBRASKA SERVICE CENTER DECISION PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a branding, design, and marketing agency for real estate, seeks to employ the Beneficiary as a computer graphics artist. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l153(b)(2). This employment-based "EB-2" immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did not establish its ability to pay the proffered wage. On appeal the Petitioner asserts that the Director's decision was erroneous and that the totality of the evidence and the Petitioner's circumstances establishes its ability to pay the proffered wage.
Upon de nova review, we will withdraw the Director's decision and remand the case for further consideration and the issuance of a new decision.
Law
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it has the ability to pay the proffered wage stated in the labor certification. As provided in the regulation at 8 C.F.R. § 204.5(g)(2):
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 a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage. 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 [USCIS].
Analysis
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the proffered wage from the priority date1 of the petition onward. The priority date in this case is July 18, 2017. The labor certification states that the proffered wage for the job of computer graphics artist is $72,000 per year.
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the beneficiary was employed and paid by the petitioner during the period following the priority date. A petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage for the time period in question, when accompanied by a form of evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the petitioner's ability to pay the proffered wage. In this case, however, there is no evidence that the Petitioner has employed the Beneficiary at any time since the priority date.
I f a petitioner has not employed the beneficiary and paid him (or her) a salary equal to or above the proffered wage from the priority date onward, USCIS will examine the net income and net current assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or audited financial statement(s). If either of these figures, net income or net current assets, 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.
In this case, the record includes a copy of the Petitioner's federal income tax return, Form l 120S, U.S. Income Tax Return for an S Corporation, for 2016, which was the most recent filed by the Petitioner at the time the instant petition was filed. However, without the Petitioner's 2017 federal tax return (or an annual report or audited financial statement for 2017) we are unable to assess the Petitioner's ability to pay the proffered wage to the Beneficiary from the priority date of July 18, 2017, onward. Accordingly, we will remand this matter to the Director to request regulatory 1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. § 204.S(d). p. 3 required evidence, as specified in 8 C.F.R. § 204.5(g)(2), of the Petitioner's ability to pay the proffered wage in 2017, and 2018 if deemed necessary by the Director.
The Petitioner may also submit materials in support of the factors discussed in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). As the Petitioner argues and Sonegawa requires, the Director on remand must consider the totality of the circumstances affecting the Petitioner's ability to pay, including the prior evidence submitted.
Conclusion
For the reasons discussed above, we will remand this case to the Director for further consideration of the Petitioner's ability to pay the proffered wage from the priority date onward.
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.
Cite as Matter ofR-E-A, Inc., ID# 3430788 (AAO May 2, 2019)