Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § ll53(b )(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is a non-precedent decision. The AAO does not announce new constructions of Jaw 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.P.R.§ 103.5. Do not file a motion directly with the AAO .
Thank you,
L~e~erg
Chief, Administrative Appeals Office www.usds.gov
NON-PRECEDENTDEC~JON
DISCUSSION: The Director , Nebraska 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 a health care business. It seeks to permanently employ the beneficiary in the United States as a clinical research associate . 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
The director ' s decision denying the petition concludes that the petitioner did not establish its ability to pay the proffered wage.
The regulation 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 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 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 , Application for Permanent Employment Certification , was accepted for processing by any office within the employment system of the DOL. See 8 C.P.R. § 204 .5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its ETA Form 9089 , Application for Permanent Employment Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977).
Here, the ETA Form 9089 was accepted on February 5, 2012. The proffered wage as stated on the ETA Form 9089 is $44 ,012 per year. The ETA Form 9089 states that the position requires a medical degree and six months in the position offered.
We conduct appellate review on a de novo basis. See Soltane v . DOJ, 381 F.3d 143, 145 (3d Cir. 2004) . We consider all pertinent evidence in the record , including new evidence properly submitted upon appeal. 2
The evidence in the record of proceeding shows that the petitioner is a sole proprietorship. On the ETA Form 9089, signed by the beneficiary on November 17, 2012, the beneficiary did not claim to have worked for the petitioner.
The petitioner must establish that the 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 I&N Dec. 142, 144 (Acting Reg'l Comm'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 circumstances affecting the petitioning business will be considered if the evidence warrants such consideration. See Matter ofSon egawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 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 he 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. In the instant case, the petitioner has not established that it employed and paid the beneficiary the full proffered wage from the priority date in 2012 onwards.
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, 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 St. Donuts, LLC v. Napolitano , 558 F.3d 111, 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); K.C.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).
The petitioner is a sole proprietorship. Therefore the sole proprietor's adjusted gross income, assets and liabilities are also considered as part of the petitioner's ability to pay. Individuals report income and expenses on their IRS Form 1040 federal tax return each year. Individuals must show that they can cover their existing expenses as well as pay the proffered wage out of their adjusted gross income or other available funds. In addition, individuals must show that they can sustain themselves and their dependents. See Ubeda, 539 F. Supp. at 650.
In the instant case, the sole proprietor supports a family of three. The sole proprietor's tax returns reflect the following information for the following years:
2012 2013
Adjusted gross income (Form 1040, line 37) $82,416 $151,808 In 2012, the sole proprietor had the adjusted gross income of $82,416 less expenses of ($44,024.68) which leaves $38,391.32, which fails to cover the proffered wage of $44,012 a difference of ($5,620.68).
On appeal, counsel asserts that the petitioner can cover the difference between the adjusted gross income available and the proffered wage of ($5,620 .68) through an examination of the sole proprietor ' s spouse ' s corporation , another bank account, and a home mortgage.
Regarding the sole proprietor's property values, a home is not a readily liquefiable asset. Further, it is unlikely that a sole proprietor would sell such a significant personal asset to pay the beneficiary's wage. USCIS may reject a fact stated in the petition if it does not believe that fact to be true. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
The funds in the account are located in the sole proprietor ' s business checking
expenditures or losses incurred by the petitioner, whether the beneficiary is replacing a former worker or an outsourced service, or any other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage.
In the instant case, the petitioner has been in business since 2008 and employs seven workers . The sole proprietor's tax returns reflect, on Schedule C, that the petitioner's gross receipts declined from $578,184 to $454,722 in 2012 and 2013, as did the sole proprietor's wage and labor costs (from $133,682 to $99,209) and net profit (from $44,124 to $23,627). The record is devoid of any evidence of the petitioner's reputation within the industry , a history of growth and profits, or uncharacteristic expenditures or losses. Nothing in the record demonstrates that the petitioner's tax returns paint an inaccurate financial picture. 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. 4
Beyond the decision of the director, 5 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 of Wing 's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In evaluating the beneficiary'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 Massachus etts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981).
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(1)(3)(ii)(A). The record contains an experience letter from on 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 for 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.
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 Spenc er Enterprises , inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), a.IJ'd, 345 F.3d 683 (9th 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). 5 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 Spenc er Enterprises, Inc. v. United States , 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), a.IJ'd, 345 F.3d 683 (9 h 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. 6 of Medicine letterhead dated June 15, 2012. The company states that the beneficiary was employed as a postdoctoral fellow from July 1, 2012 until June 30, 2013. However, the author did not describe the beneficiary's job duties, and the letter does not mention if the position was full or part time. Thus, the petitioner has not established that the beneficiary possesses six months of work experience in the job offered, as required by the terms of the approved labor certification. The evidence in the record does not establish that the beneficiary possessed the required experience set forth on the labor certification by the priority date. Therefore, the petitioner has also failed to establish that the beneficiary is qualified for the offered position.
The petition will be denied for the above stated reasons, with each considered as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.