Recent Samples of AAO Qualitative Analyses                    By Joseph P. Whalen (October 27, 2012)In recent reviews of n...
column A and two from column B” and if that formula does not work then justforget it. Well, things are changing. The evide...
As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the     petitioners financial ability that fal...
In Matter of Great Wall, the Acting Regional Commissioner invoked anddiscussed the reasoning from both Sonegawa and Katigb...
the equivalent for the beneficiary from Great Wall could be among eitherskilled or other workers. In the non-precedential ...
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A Recent Sample of AAO Qualitative ATP Analysis

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A Recent Sample of AAO Qualitative ATP Analysis

  1. 1. Recent Samples of AAO Qualitative Analyses By Joseph P. Whalen (October 27, 2012)In recent reviews of numerous I-140s denied due to the petitioner’s failure todemonstrate the ability to pay (ATP) the proffered wage since the prioritydate, AAO has displayed a change in its approach. Whether it is a real andsubstantive change to their methods or merely a cosmetic change in how theanalyses are being presented in the decisions, is unclear to me at this time.That said, the proper approach to weighing evidence may filter down to theService Centers if the adjudicators (Immigration Services Officers—ISOs) aregiven the opportunity to study AAO’s recent EB-3 ATP analyses.The “ability to pay” issue is an outgrowth of the need to demonstrate a“realistic job offer” from the beginning of the process. In addition, we must becognizant that the labor certification process should only begin after the U.S.employer has been unable to find a U.S. worker to fill a position. Employmentbased visas were never intended to be a means to revive the colonial-periodsystem of indentured servitude where many eager would-be immigrantsvoluntarily entered into an arrangement which was a close approximation of aslave-master relationship in exchange for passage to the new world.Additionally, employment based visas are not to be used as an extra means tobring more relatives (or friends) to the U.S. to either displace U.S. workers orto merely hunt for a real job once they get here.In Great Wall, infra, the petitioner had filed for someone he was alreadyallegedly employing. However, that person was not being the prevailing wagefor the position for which the petition was filed and after examining thefinancial status and prospects of that petitioner, it was determined that thebeneficiary would not be paid the prevailing wage in the future. On thecontrary, the “beneficiary” had sunk money into that money-pit of a businessto help keep it afloat just to support his own visa opportunity. Bogus joboffers take various forms.AAO’s somewhat altered or “new” ubiquitous blurbs explain that “change”better than I could paraphrase it. Consequently, I ask the reader to pleaseclosely read the following and take it all to heart. I will state that in myopinion, INS and USCIS had fallen into a rut whereby the adjudicators weretrained to simply use quantitative analysis even when a qualitative analysiswould be more appropriate. As in other adjudication contexts, INS and USCISfell into the trap of relying on “balancing tests” that turned manyadjudications into routine matters of merely looking at limited possibilitiesfrom rather short lists of choices. It was almost like placing an order in aChinese restaurant from the 1950s through the 1980s; “choose one from Page 1 of 5
  2. 2. column A and two from column B” and if that formula does not work then justforget it. Well, things are changing. The evidence possibilities have expandedin recent years and the mindset is on the mend back to an open state whereambiguities are not merely ignored or deemed insufficient.There seems to be a paradigm shift in process at USCIS and AAO. Also, Ibelieve that EOIR is joining that shift as well but that is beyond the scope ofthis essay. So, without further ado, here are the promised “blurbs”. “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 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 petitioners 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 financial resources sufficient to pay the beneficiarys 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). [Annotated copy.] * * * * * 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 petitioners business activities in its determination of the petitioners ability to pay the proffered wage. See Matter of Sonegawa, 12 I&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 petitioners 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 petitioners 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 Commissioners determination in Sonegawa was based in part on the petitioners sound business reputation and outstanding reputation as a couturiere. Page 2 of 5
  3. 3. As in Sonegawa, USCIS may, at its discretion, consider evidence relevant to the petitioners financial ability that falls outside of a petitioners 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 petitioners business, the overall number of employees, the occurrence of any uncharacteristic business expenditures or losses, the petitioners 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 petitioners ability to pay the proffered wage. The AAO recognizes that the petitioner has been in business since 2004 and its predecessor had been in business since 1974. Nevertheless, the 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 outstanding business reputation as in Sonegawa. Unlike Sonegawa, the petitioner has not submitted any evidence reflecting the companys reputation or historical growth since its inception in 2004. Nor has it included any evidence or detailed explanation of the corporations milestone achievements. Counsel states that the petitioner "suffered for a couple years from serious medical issues." However, this does not explain why the petitioner did not have the ability to pay the proffered wage from 2001, 2002, and 2006 through 2009. Furthermore, the fact that the petitioner had no receipts in 2009, filed its "final return" with the IRS, and completed Form 966, Corporate Dissolution or Liquidation, it appears that the petitioner has ceased conducting business. 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.”See Feb142012_03B6203.pdfThe holding from Sonegawa is also worth reviewing in this essay. Here isthat holding: Approval of a visa petition filed by the owner and proprietress of a custom dress and boutique shop to accord beneficiary preference classification under section 203(a) (6) of the Immigration and Nationality Act, as amended, as an assistant clothes designer, is not precluded by the fact that petitioners net profit for the previous year is not commensurate with the salary specifications of the labor certification where it is found that petitioners business has increased; that her expectations of continued increase in business and profits are reasonable expectations; and it has been established that she has the ability to meet the wages stipulated In the labor certification. Page 3 of 5
  4. 4. In Matter of Great Wall, the Acting Regional Commissioner invoked anddiscussed the reasoning from both Sonegawa and Katigbak as follows. “When a sixth-preference petition is filed, it seeks to establish that the employer is making a realistic job offer to an alien who is qualified, and that the proposed employment will not displace United States workers at the time the petition is filed. I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could not pay the offered wage at the time the petition was filed, should subsequently become eligible to have the petition approved under a new set of facts hinged upon probability and projections, even beyond the information presented on appeal. Eligibility for the preference being sought at the time of filing of the petition was previously decided by the Regional Commissioner in Matter of Katigbak, 14 I. & N. Dec. 45. I am aware that Katigbak is not foursquare with the instant case in that the Regional Commissioner considered the beneficiarys eligibility for third preference at the time the petition was filed. However, it was determined that the beneficiary must be qualified at the time the petition is filed with this Service if a priority date for visa issuance is to be established. ....” Great Wall at pp. 144-145 * * * * * “..... It follows that such consideration by the Service would necessarily be focused on the circumstances at the time of filing of the petition. The petitioner in the instant case cannot expect to establish a priority date for visa issuance for the beneficiary when at the time of making the job offer and the filing of the petition with this Service he could not, in all reality, pay the salary as stated in the job offer. See Matter of Sonegawa, 12 I. & N. Dec. 612, wherein it is held that the petitioner must demonstrate financial ability to meet the wage requirements of the certified job offer.” Great Wall at p. 145To continue this discussion it is essential to clarify that the former visaclassification defined at INA § 203(a) (6) came from the 1965 Act which,itself was a grand re-working of the INA and introduced the “preferencesystem” that we still know today but in a slightly altered form. Here is theINA definition of the visa category at issue in Sonegawa and Great Wall. “Sec. 203. (a) Aliens who are subject to the numerical limitations specified in section 201 (a) shall be allotted visas or their conditional entry authorized, as the case may be, as follows: (6) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 201 (a) (ii), to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.The current equivalent for the category at issue in Sonegawa could be theEB-3 visa category among either the professionals or skilled workers and Page 4 of 5
  5. 5. the equivalent for the beneficiary from Great Wall could be among eitherskilled or other workers. In the non-precedential EB-3 AAO Decisionsposted on the USCIS website, the vast majority contain “ability to pay”analyses. It was a review of the most recently released AAO AdministrativeDecisions, in AAO category B6 1, that lead me to write and post this essay.Currently, EB-3 is described in INA § 203(b)(a)(A)(i)-(iii) as follows. (3) Skilled workers, professionals, and other workers.- (A) In general. - Visas shall be made available, in a number not to exceed 28.6 percent of such worldwide level, plus any visas not required for the classes specified in paragraphs (1) and (2), to the following classes of aliens who are not described in paragraph (2): (i) Skilled workers. - Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. (ii) Professionals. - Qualified immigrants who hold baccalaureate degrees and who are members of the professions. (iii) Other workers. - Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. (B) Limitation on other workers. - Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii). (C) Labor certification required.- An immigrant visa may not be issued to an immigrant under subparagraph (A) until the consular officer is in receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212(a)(5)(A) .Of the nearly 1.25 million or so new immigrants that the U.S. welcomes eachyear, only 140,000 are employment based. That is only approximately 8.9% ofall annual immigrant visas. USCIS has been given with the responsibility ofensuring that the very limited supply of employment based visas are allottedappropriately. In the face of rampant fraud, USCIS has to be strict whenadjudicating such petitions. The vast majority of the worthy petitions arereadily approved and we don’t hear about them, we only hear about thesqueaky wheels and the brash attempts to lower the threshold to eligibility.1 SEE: http://www.slideshare.net/BigJoe5/more-eb3-aao-decisions-posted-for-2012-janaug Page 5 of 5

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