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U.S. Citizenship
and Immigration
Services
MATTER OF D-&D- CORP.
Non-Precedent Decision of the
Administrative Appeals Offic...
Matter ofD-&D- Corp.
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or
audi...
(b)(6)
Matter ofD-&D- Corp.
The materials submitted by the Petitioner on motion also do not change our analysis under
Sone...
U.S. Citizenship
and Immigration
Services
MATTER OF D-&D- CORP.
Non-Precedent Decision of the
Administrative Appeals Offic...
Matter ofD-&D- Corp.
In the instant case, an ETA Form 9089, Application for Permanent Employment Certification (labor
cert...
Matter ofD-&D- Corp.
proffered wage and the amount paid to the Beneficiary by the Petitioner. However, the net current ass...
(b)(6)
Matter ofD-&D- Corp.
The record also does not indicate the Beneficiary's replacement of a current employee or outso...
Matter ofD-&D- Corp.
Thus, the preponderance of the evidence establishes the Petitioner's intention to employ the
Benefici...
(b)(6)
DATE:
JUN 0 5 2015
IN RE: Petitioner:
Beneficiary:
FILE#:
PETITION RECEIPT#:
U.S. Department ofHomeland Security
U....
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Ce...
(b)(6)
NON-PRECEDENT DECISION
Page 3
Ability to Pay the Proffered Wage
Beyond the director's decision, the petitioner has ...
(b)(6)
NON-PRECEDENT DECISION
Page 4
priority date and that the offer remained realistic for each year thereafter, until t...
(b)(6)
Page 5
NON-PRECEDENT DECISION
the cost of a tangible long-term asset and does not represent a specific cash
expendi...
(b)(6)
NON-PRECEDENT DECISION
Page 6
current liabilities are shown on lines 16 through 18. If the total of a corporation's...
(b)(6)
NON-PRECEDENT DECISION
Page 7
proffered wages to all of its beneficiaries from the day the ETA Form 9089 was accept...
(b)(6)
NON-PRECEDENT DECISION
Page 8
Thus, assessing the totality of the circumstances in this individual case, it is conc...
(b)(6)
Page 9
This is consistent with the website's
merged with to form
NON-PRECEDENT DECISION
page, which states that, "M...
(b)(6)
DATE: OFFICE: TEXAS SERVICE CENTER
JUL 25 2014
INRE: Petitioner:
Beneficiary:
U.S. Department of Homeland Security
...
(b)(6)
NON-PRECEDENT DECISION
Page 2
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition an...
(b)(6)
NON-PRECEDENT DECISION
Page 3
The record also contains an evaluation of the beneficiary's educational credentials p...
(b)(6)
NON-PRECEDENT DECISION
Page4
record, including new evidence properly submitted upon appeal.4
A petition that fails ...
(b)(6)
Page 5
NON-PRECEDENTDECISION
determinations are not subject to review by INS absent fraud or willful
misrepresentat...
(b)(6)
Page 6
NON-PRECEDENT DECISION
workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own
determi...
(b)(6)
Page 7
NON-PRECEDENT DECISION
(B) An official academic record showing that the alien has a United States
baccalaure...
(b)(6)
NON-PRECEDENTDECISION
Page 8
from July 29, 2003 onwards. The experience letter from establishes the
beneficiary's p...
(b)(6)
NON-PRECEDENT DECISION
Page 9
does contain a description of job duties for a Marketing Manager with
we cannot accep...
(b)(6)
NON-PRECEDENT DECISION
Page 10
qualify for classification as a member of the professions holding an advanced degree...
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Matter of D-&D- Corp., ID# 18052 (AAO May 27, 20 16) EB-2 3rd MTR Denied (collected AAO decisions)

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Matter of D-&D- Corp., ID# 18052 (AAO May 27, 20 16) EB-2 3rd MTR Denied (collected AAO decisions)

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Matter of D-&D- Corp., ID# 18052 (AAO May 27, 20 16) EB-2 3rd MTR Denied (collected AAO decisions)

  1. 1. U.S. Citizenship and Immigration Services MATTER OF D-&D- CORP. Non-Precedent Decision of the Administrative Appeals Office DATE: MAY27,2016 MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a provider of digital printing services, seeks to permanently employ the Beneficiary as a business development manager. It seeks 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)(A), 8 U.S.C. § 1153(b)(2)(A). This classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status. The Director, Texas Service Center, denied the petitiOn on January 27, 2014. The Director concluded that the record did not establish the Beneficiary's qualifying experience for the offered position or the requested classification. On July 25, 2014, we dismissed the Petitioner's appeal, affirming the Director's decision. In its first motion to reopen, the Petitioner established the Beneficiary's possession of the qualifying experience for the offered position and the requested classification. However, we denied that motion on June 5, 2015 and another motion to reopen on February 9, 2016 because the record did not establish the Petitioner's ability to pay the proffered wage. The matter is now before us on the Petitioner's third motion to reopen.' The Petitioner submits additional evidence in support of its ability to pay the proffered wage. We will deny the motion to reopen. 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). 1 A petitioner must file a motion to reopen within 33 days of the date of a decision served by mail. See 8 C.F.R. § 103.5(a)(l) (requiring a motion to be filed within 30 days of a decision); see also 8 C.F.R. § 103.8(b) (adding 3 days to a · filing deadline when a decision is served by mail). U.S. Citizenship and Immigration Services (USCIS) did not receive the instant motion until March 16, 2016, or 36 days after our most recent decision of February 9, 2016. However, we will accept the untimely filing pursuant to 8 C.F.R. § I03.5(a)(l ), which authorizes us to excuse an untimely motion to reopen "where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner." 3rd MTR DENIED- MAY 27, 2016 2nd MTR DENIED FEBRUARY 9, 2016 1st MTR GRANTED-DENIAL UPHELD - JUNE 5, 2015 APPEAL DISMISED- JULY 25, 2014 I-140 DENIED JANUARY 27, 2014
  2. 2. Matter ofD-&D- Corp. Evidence of ability to pay must include copies of annual reports, federal income tax returns, or audited financial statements. /d. In the instant case, an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL), accompanies the petition. The labor certification states the proffered wage ofthe offered position of business development manager as $156,998 per year. The petition's priority date is January 8, 2013, the date the DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d). In determining a petitioner's ability to pay, we examine whether it paid a beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay the full proffered wage, we examine whether it generated sufficient annual amounts of net income and net current assets to pay the difference between the proffered wage and any wages paid. If a petitioner's amounts of net income and net current assets are insufficient, we may also consider other evidence of its ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967).2 The record contains copies of the Petitioner's federal income tax returns for 2013 and 2014. On motion, the Petitioner submits copies of financial statements for 2015 compiled by an accounting firm and a list of projects for 2016 with estimates of expected revenues. In a March 3, 2016, letter, the Petitioner's president stated that the company had not yet filed its federal income tax return for 2015. He stated that the return will be filed with the information included in the financial statements. Pursuant to 8 C.F.R. § 204.5(g)(2), the financial statements submitted on motion were not audited. The Petitioner also did not submit a copy of its 2015 federal income tax return or an annual report in compliance with the regulation. Because the Petitioner did not submit required evidence of its ability to pay the proffered wage in 2015, we will consider its ability to pay only through 2014. As indicated in our February 9, 2016, decision, neither the Petitioner's net income (-$134,074) nor its net current assets (-$347,766) in 2014 were sufficient to pay the difference between the annual proffered wage and the wages paid to the Beneficiary ($107,332) that year. The materials submitted by the Petitioner on motion do not cure this deficiency. Thus, based on examinations of the wages paid by the Petitioner to the Beneficiary, its net income, and its net current assets, the record on motion does not establish its continuing ability to pay the proffered wage from the petition's priority date onward. 2 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 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-43 (S.D. Cal. 20 15); Rivzi v. Dep 't ofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292 (5th Cir. 2015). 2
  3. 3. (b)(6) Matter ofD-&D- Corp. The materials submitted by the Petitioner on motion also do not change our analysis under Sonegawa. Unlike the petitioner in Sonegawa, the instant record does not indicate that the Petitioner incurred uncharacteristic business expenses or losses, or possesses an outstanding reputation in its industry. In addition, online government records indicate an outstanding judgment lien against the Petitioner in the amount of $89,693.30. See at (accessed 2016). Thus, the record does not establish the Petitioner's ability to pay the proffered wage pursuant to Sonegawa. After careful consideration, 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 our prior decision and deny the motion. In visa petition proceedings, a petitioner bears the burden of establishing eligibility for the requested benefit. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the instant Petitioner did not meet that burden. ORDER: The motion to reopen is denied. Cite as Matter ofD-&D- Corp., ID# 18052 (AAO May 27, 2016) 3
  4. 4. U.S. Citizenship and Immigration Services MATTER OF D-&D- CORP. Non-Precedent Decision of the Administrative Appeals Office DATE: FEB. 9, 2016 MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a provider of digital printing services, seeks to permanently employ the Beneficiary as a business development manager under the immigrant classification of member of the professions holding an advanced degree. See Immigration and Nationality Act (the Act) § 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). The Director, Texas Service Center, denied the petition. We dismissed the appeal and denied a later motion to reopen. The matter is now before us on a second motion to reopen. The motion will be denied. The Director concluded that the record did not establish the Beneficiary's qualifying experience for the offered position and the requested classification. Accordingly, on January 27, 2014, the Director denied the petition. On July 25,2014, we dismissed the Petitioner's appeal, affirming the Director's decision. In its prior motion, the Petitioner established the Beneficiary's possession of the qualifying experience for the offered position and the requested classification. However, in on our June 5, 2015, decision, we found that the record did not establish the Petitioner's continuing ability to pay the proffered wage or the bonafides of its job offer.1 The instant motion is properly filed, stating new facts supported by documentary evidence. See 8 C.F.R. § 103.5(a)(2). I. 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.F.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. 1 We may deny a petition on valid grounds unidentified by a director. See 5 U.S.C. § 557(b) (stating that, except as limited by notice or rule, an administrative agency on review retains all the powers it possessed in issuing the original decision).
  5. 5. Matter ofD-&D- Corp. In the instant case, an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL), accompanies the petition. The labor certification states the proffered wage of the offered position of business development manager as $156,998 per year. The petition's priority date is January 8, 2013, the date the DOL accepted the labor certification application for processing. See 8 C.F.R. § 204.5(d). The record contains copies of the Petitioner's federal income tax returns for 2013 and 2014. On motion, the Petitioner also submits a profit and loss statement for 2015. However, the record does not indicate that the financial statement is audited. The statement therefore cannot establish the Petitioner's ability to pay in 2015 pursuant to 8 C.F.R. § 204.5(g)(2). We will therefore consider the Petitioner's ability to pay only through 2014. In determining a petitioner's ability to pay, we first examine whether it 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 the difference between the proffered wage and wages paid, if any. If a petitioner's amounts of net income or net current assets are insufficient, we may also consider other evidence of its ability to pay a proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967).2 The instant record contains a copy of an IRS Form W-2, Wage and Tax Statement, indicating the Petitioner's payment of$62,733.46 to the Beneficiary in 2013. The record also contains copies of2014 payroll records indicating the Petitioner's payment of $49,666 to the Beneficiary through October 15. The amounts on the payroll records and Form W-2 do not equal or exceed the annual proffered wage of $156,998. The record therefore does not establish the Petitioner's ability to pay the proffered wage based on the wages it paid the Beneficiary. However, we credit the Petitioner's payments to the Beneficiary. The Petitioner need only demonstrate its ability to pay the differences between the proffered wage and the amounts it paid the Beneficiary, or $94,264.54 in 2013 and $107,332 in 2014. The Petitioner's tax returns reflect annual net income amounts of $43,251 in 2013 and $(134,074) in 2014.3 Neither of these amounts equal or exceed the differences between the proffered wage and the amounts paid by the Petitioner to the Beneficiary in 2013 or 2014. The record therefore does not establish the Petitioner's ability to pay the proffered wage based on its net income. The Petitioner's tax returns reflect annual net current assets amounts of $216,636 in 2013 and $(347,766) in 2014. The net current asset amount for 2013 exceeds the difference between the 2 Federal courts have upheld our method of determining a petitioner's ability to pay. See River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 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), aff'd, --Fed. Appx. --,2015 WL 5711445, *1 (5th Cir. Sept. 30, 2015). 3 Numbers in parentheses reflect negative amounts. 2
  6. 6. Matter ofD-&D- Corp. proffered wage and the amount paid to the Beneficiary by the Petitioner. However, the net current asset amount for 2014 does not reflect the Petitioner's ability to pay the proffered wage.4 Thus, based on examinations of the wages paid to the Beneficiary by the Petitioner and its net income and net current assets amounts, the record does not demonstrate its ability to pay the proffered wage. As previously indicated, we may consider other evidence of a petitioner's ability to pay a proffered wage. See Sonegawa, 12 I&N Dec. at 614-15. In Sonegawa, the petitioner conducted business for more than 11 years, routinely earning gross annual income amounts of about $100,000 and employing four people on a full-time basis. However, during the year of the petition's filing, she relocated her business, causing her to pay rent on two locations for a five-month period, to incur substantial moving costs, and to briefly suspend business operations. Despite the setbacks, the Regional Commissioner determined that the petitioner would likely resume successful business operations and had established her ability to pay the proffered wage. The petitioner established herself as a fashion designer whose work had been featured in national magazines. The record identified her clients as the then Miss Universe, movie actresses, society matrons, and women on lists of the best-dressed in California. The record also indicated the petitioner's frequent lectures at design and fashion shows throughout the United States and at California colleges and universities. As in Sonegawa, we may consider evidence of the instant Petitioner's ability to pay beyond its net income and net current assets. We may consider such factors as: the number of years it has conducted business; the historical growth of its business; its number of employees; the occurrence of any uncharacteristic business expenditures or losses; its reputation within its industry; whether the Beneficiary will replace a current employee or outsourced service; and any other evidence of the Petitioner's ability to pay the proffered wage. In the instant case, the record indicates the Petitioner's continuous business operations since 2002 and its employment of five people at the time of the petition's filing in June 2013. Copies of the Petitioner's federal income tax returns indicate an increase in wages paid from 2012 to 2014.5 However, the Petitioner's tax returns reflect a decrease in revenues from 2012 to 2014. Also, unlike in Sonegawa, the record neither indicates the occurrence of any uncharacteristic business expenditures or losses, nor documents an outstanding reputation by the Petitioner in its industry.6 4 As indicated in our June 5, 2015, decision, the Petitioner filed a petition for another beneficiary that remained pending from the instant petition's priority date of January 8, 2013 until August 29, 2014. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of a petition where the petitioner did not demonstrate its ability to pay multiple beneficiaries whose petitions remained pending after the instant petition's priority date). However, the record on motion demonstrates that the Petitioner's payments to the other beneficiary exceeded his proffered wage in 2013 and 2014. 5 In our June 5, 2015 decision, we found that the Petitioner's 2012 federal income tax return did not reflect any wages paid to employees. However, on motion, the Petitioner states that Statement 1 of IRS Form 1120, U.S. Corporation Income Tax Return, reflects $229,734 in wages paid as "payroll services & taxes." 6 The Petitioner asserts that it incurred $188,094 in uncharacteristic expenses, including $63,925 in moving expenses, in 2015. However, as previously indicated, we are not considering the Petitioner's ability to pay in 2015 because it has not 3
  7. 7. (b)(6) Matter ofD-&D- Corp. The record also does not indicate the Beneficiary's replacement of a current employee or outsourced service. In addition, online government records indicate an outstanding federal tax lien of $239,697.18 filed against the Petitioner in 2012. See Fla. Dep't of State, Div. of Corps., at (accessed Jan. 19, 2016). Thus, the record does not establish the Petitioner's ability to pay the proffered wage pursuant to Sonegawa. 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 our most recent decision and deny the motion. II. THE BONA FIDES OF THE JOB OFFER An employer "desiring and intending" to employ a foreign national may file a petition on his or her behalf. INA§ 204(a)(l)(F), 8 U.S.C. § 1154(a)(l)(F). A petitioner must intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. See Matter ofIzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966) (upholding a petition's denial where a petitioner did not intend to employ a beneficiary as a live-in-domestic worker pursuant to the accompanying labor certification). For labor certification purposes, the term "employment" means "[p]ermanent, full-time employment for an employer other than oneself." 20 C.F.R. § 656.3. As indicated in our June 5, 2015, decision, the instant record did not establish the Petitioner's intention to employ the Beneficiary in the offered position of business development manager on a full-time basis as stated on the accompanying labor certification. Counsel initially stated the Petitioner's merger with another company with which it shared space and a trade name. The Petitioner clarified that the companies did not merge, but only "joined forces to expand markets and better serve customers." However, the record suggested that the Beneficiary would generate business for the other company as well as the Petitioner in the offered position. On motion, the Petitioner submits evidence that the trade names of it and the other company are similar, but not identical. The record also shows that, as of October 1, 2015, the Petitioner no longer shares space with the other company. In addition, the Petitioner's director states that the Beneficiary will work only for the Petitioner in the offered position and that the Petitioner has no plans to acquire or merge with any other company. submitted required evidence for that year pursuant to 8 C.F.R. § 204.5(g)(2). Moreover, many of the stated expenses- such as bad debt, debt interest, and automobile expenses- do not appear to be uncharacteristic, as the Petitioner's 2014 tax return states similar expenses. 4
  8. 8. Matter ofD-&D- Corp. Thus, the preponderance of the evidence establishes the Petitioner's intention to employ the Beneficiary in the offered position. We will therefore withdraw the contrary finding in our June 5, 2015, decision. III. CONCLUSION The record establishes the Petitioner's intention to employ the Beneficiary in the offered position. We will therefore withdraw our prior, contrary finding. However, the record does not demonstrate the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore affirm our June 5, 2015, decision and deny the motion. The motion will be denied for the reason stated above. In visa petition proceedings, a petitioner bears the burden of establishing eligibility for the required benefit. INA § 291, 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 motion is denied. Cite as Matter ofD-&D- Corp., ID# 15012 (AAO Feb. 9, 2016) 5
  9. 9. (b)(6) DATE: JUN 0 5 2015 IN RE: Petitioner: Beneficiary: FILE#: PETITION RECEIPT#: U.S. Department ofHomeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2) ON BEHALF OF PETITIONER: Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing location, and other requirements. Please do not mail any motions directly to the AAO. Thank you, -t:t-A fc_, ��Rosenberg Chief, Administrative Appeals Office REV 3/2015 www.uscis.gov
  10. 10. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The subsequent appeal was dismissed by the Administrative Appeals Office (AAO). The matter is now before us on a motion to reopen. The motion will be granted, the appeal will remain dismissed and the petition will remain denied. The petitioner filed the above-referenced Form I-140, Immigrant Petition for Alien Worker, seeking to permanently employ the beneficiary in the United States as a business development manager. 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). The petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), certified by the U.S. Department of Labor (DOL). The director denied the petition on January 27, 2014, finding that the petitioner · had not established that the beneficiary possessed the minimum required experience set forth on the labor certification. On July 25, 2014, we dismissed the petitioner's appeal because the experience letters in the record did not establish the beneficiary's five years of progressive post-baccalaureate experience. Therefore, we found that the beneficiary did not qualify for classification as a member of the professions holding an advanced degree under section 203(b)(2) of the Act and did not meet the minimum requirements of the offered position as set forth on the labor certification. The instant motion to reopen qualifies for consideration under 8 C.F.R. § 103.5(a)(2) because the petitioner is providing new facts with supporting documentation not previously submitted. BeneficiaryQualifications On motion, the petitioner has offered updated work experience letters and complete merger documents between _ . Upon review of the evidence submitted on motion we find that the beneficiary, more likely than not, possesses the required five years of progressive post-baccalaureate experience in order to be classified as a member of the professions holding an advanced degree under section 203(b)(2) of the Act. Further, the record demonstrates that the beneficiary meets the minimum requirements of the offered position as set forth on the labor certification. Although the petitioner has overcome the basis for denial, the petition may not be approved for the foregoing reasons. On October 24, 2014, we sent a Request for Evidence (RFE) and a subsequent Notice of Intent to Deny (NOID) seeking regulatory prescribed evidence of the petitioner's ability to pay the proffered wage to all beneficiaries since the priority date of January 8, 2013 to the present. Additionally, we requested evidence that a bona fide job opportunity continues to exist.
  11. 11. (b)(6) NON-PRECEDENT DECISION Page 3 Ability to Pay the Proffered Wage Beyond the director's decision, the petitioner has not demonstrated its ability to pay the proffered wage to the instant and all of its beneficiaries. We conduct appellate review on a de novo basis. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). We consider all pertinent evidence in the record, including new evidence properly submitted upon appeal. 1 The regulation 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 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.F.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 January 8, 2013. The proffered wage as stated on the ETA Form 9089 is $156,998.00 per year. The evidence in the record of proceeding shows that the petitioner is structured as a C corporation. On the petition, the petitioner claimed to have been established in to have a gross annual income of $1,560,447, and to currently employ five workers. According to the tax returns in the record, the petitioner's fiscal year is based on the calendar year. On the ETA Form 9089, signed by the beneficiary on June 14, 2013, the beneficiary claimed to have worked for the petitioner since October 1, 2009. The petitioner must establish that its 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 1 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are incorporated into the regulations by the regulation at 8 C.P.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, 766 (BIA 1988).
  12. 12. (b)(6) NON-PRECEDENT DECISION Page 4 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 ofSonegawa, 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 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. In the instant case, the record contains a 2013 Form W-2 issued to the beneficiary by the petitioner in the amount of $62,733.46, and paystubs issued by the petitioner totaling $49,666 for 2014. The beneficiary's salary for 2013 and 2014 is less than the proffered wage of $156,998.00 per year. Therefore, the petitioner has not established that it paid the beneficiary the full proffered wage from the priority date 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., Inc. 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). Reliance on the petitioner's gross sales and profits and wage expense is misplaced. Showing that the petitioner's gross sales and profits exceeded 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 relied on the petitioner's net income figure, as stated on the petitioner's corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the argument that the Service 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 systematic allocation of
  13. 13. (b)(6) Page 5 NON-PRECEDENT DECISION 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 an 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. According!y, 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 the amount spent on a long term tangible asset is a "real" expense. River St. Donuts, 558 F.3d 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 that these figures should be revised by the court by adding back depreciation is without support." Chi-Feng Chang, 719 F. Supp. at 537 (emphasis added). For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the IRS Form 1120, U.S. Corporation Income Tax Return. The record before us closed on March 6, 2015 with the receipt of the petitioner's submissions in response to our NOID. As of that date, the petitioner's 2014 federal income tax return was not yet due. Therefore, the petitioner's income tax return for 2013 is the most recent return available. The petitioner's tax returns demonstrate its net income for 2013, as shown in the table below. • In 2013, the Form 1120 stated net income of $43,251. Therefore, for the year 2013, the petitioner did not have sufficient net income to pay the difference between the proffered wage and wages already paid to the beneficiary. If the net income the petitioner demonstrates it had available during that period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, USCIS will review the petitioner's net current assets. Net current assets are the difference between the petitioner's current assets and current liabilities. 2 A corporation's year-end current assets are shown on Schedule L, lines 1 through 6 and include cash-on-hand. Its year-end 2 Current assets consist of items having (in most cases) a life-of one year or less, such as cash, marketable securities, inventory and prepaid expenses. Current liabilities are obligations payable (in most cases) within one year, such accounts payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Joel G. Siegel & Jae K. Shim, Dictionary ofAccounting Terms 118 (3d ed., Barron's Educ. Series 2000).
  14. 14. (b)(6) NON-PRECEDENT DECISION Page 6 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 greater 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 for 2013, as shown in the table below. • In 2013, the Form 1120 stated net current assets of $216,636. In our October 24, 2014 RFE, we indicated that the petitioner has filed an additional petition since the petitioner's establishment in 2002. Specifically, we noted that the petitioner filed another petition for another beneficiary after the instant priority date of January 8, 2013 and that this beneficiary became a lawful permanent resident on August 28, 2014. Therefore, we requested evidence of the petitioner's ability to pay the proffered wage to both beneficiaries from January 8, 2013 through August 28, 2014. In the petitioner's November 8, 2014 response to our RFE, the petitioner did not provide evidence of the additional beneficiary's priority date, proffered wage, or 2013 and 2014 salary. This prevents us from making a reasonable determination of the total proffered wages for all of the petitioner's beneficiaries. Therefore, for the year 2013, the petitioner did not establish that it had sufficient net income or net current assets to pay the proffered wage. Therefore, from the date the ETA Form 9089 was accepted for processing by the DOL, the petitioner had 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. The petitioner asserts in its response to our RFE that there is another way to determine the petitioner's continuing ability to pay the proffered wage from the priority date. The petitioner advocates combining its net income with its net current assets to demonstrate its ability to pay the proffered wage to one beneficiary in 2013. In our view, net income and net current assets are not cumulative. We view net income and net current assets as two different methods of demonstrating the petitioner's ability to pay the wage--one retrospective and one prospective. Net income is retrospective in nature because it represents the sum of income remaining after all expenses were paid over the course of the previous tax year. Conversely, the net current assets figure is a prospective "snapshot" of the net total of petitioner's assets that will become cash within a relatively short period of time minus those expenses that will come due within that same period of time. Thus, the petitioner is expected to receive roughly one-twelfth of its net current assets during each month of the coming year. Given that net income is retrospective and net current assets are prospective in nature, we do not agree that the two figures can be combined in a meaningful way to illustrate the petitioner's ability to pay the proffered wage during a single tax year. Moreover, combining the net income and net current assets could double-count certain figures, such as cash on hand and, in the case of the petitioner, it reports taxes pursuant to accrual convention, accounts receivable. The petitioner's assertions on appeal cannot be concluded to outweigh the evidence presented in the tax returns as submitted by the petitioner that demonstrates that the petitioner could not pay the
  15. 15. (b)(6) NON-PRECEDENT DECISION Page 7 proffered wages to all of its beneficiaries from the day the ETA Form 9089 was accepted for processing by the DOL on January 8, 2013. 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 Sonegawa, 12 I&N Dec. at 614-15. 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 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. 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 expenditures or losses, the petitioner's 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 petitioner's ability to pay the proffered wage. In the instant case, the petitioner has been in business since 2002 and employs five workers. However, the record is silent concerning the petitioner's established historical growth, the occurrence of any uncharacteristic business expenditures or losses, the petitioner's reputation within its industry, and whether the beneficiary is replacing a former employee or an outsourced service. The wages paid to the beneficiary in 2013 of $62,733.46 are less than 40% of the proffered wage of $156,988. The beneficiary's 2014 pay stubs show a bi-weekly salary of $2,614.00, which amounts to an annual salary of $67,964. This annual amount is significantly less than half of the proffered wage. Further, the record does not establish the petitioner's total proffered wages owed to all of its beneficiaries. The record does not demonstrate why the petitioner's federal income tax returns are unreliable in establishing an ability to pay the proffered wage to all of its beneficiaries. The record includes the petitioner's 2012 federal tax return. On this return, the petitioner listed no salaries or wages paid, despite claiming five employees on the labor certification and the petition. Further, the tax returns in the record demonstrate an overall decrease in gross receipts of more than 40%, from $1.5 million in 2012 to $902,823.00 in 2013. While, the record includes only two years of the petitioner's tax returns, a decrease in overall sales in the year of the priority date is not indicative of historical growth and does not show that, in the totality of the circumstances, the petitioner has a continuing ability to pay the proffered wages to all of its beneficiaries.
  16. 16. (b)(6) NON-PRECEDENT DECISION Page 8 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. Bona fide Job Opportunity On November 8, 2014, the petitioner informed us that it had merged with another company, and that it has now formed The petitioner also noted that the employer listed on the labor certification and the petition, would continue operations for accounting purposes. Based on the petitioner's statement, we notified the petitiOner that the bona fides of the job opportunity were unclear. A labor certification is only valid for the particular job opportunity stated on the application form. 20 C.F.R. § 656.30(c). Under 20 C.F.R. § 626.20(c)(8) and § 656.3, the petitioner must demonstrate that a valid employment relationship exists, that a bona fide job opportunity is available to U.S. workers. See also C.F.R. § 656.17(1); Matter of Amger Corp., 87- INA-545 (BALCA 1987). On February 5, 2015, we issued a NOID and sought independent evidence establishing that a bona fide job opportunity continues to exist, including what organization will employ the beneficiary. The petitioner responded on March 6, 2015, and asserted that a mistake had been made by its counsel's paralegal in drafting the RFE response submitted before us on November 8, 2014. The petitioner now states that the companies did not merge and instead they have "joined forces to expand markets and better serve customers." Further, the petitioner states that "both companies are active and continue to do business separately." The petitioner offered screen-prints of the Florida Department of State Division of Corporations showing that and are separate corporate entities. Under 20 C.P.R. §§ 626.20(c)(8) and 656.3, the petitioner has the burden when asked to show that a valid employment relationship exists, that a bona fide job opportunity is available to U.S. workers. See Matter of Amger Corp., 87-INA-545 (BALCA 1987). We have reviewed the website for , including a printout from the website submitted by the petitioner in response to our RFE. The website's history page states that, "More recently, merged a large-scale printing and scenic elements company, with the former to form ... . Today, we are with offices in . We also have warehouses and workshops in Florida and Venezuela. With almost two hundred professionals, technicians and assistants, we have carried out projects m thirty countries, and we can fulfill client needs all over the world." See . , accessed June 4, 2015.
  17. 17. (b)(6) Page 9 This is consistent with the website's merged with to form NON-PRECEDENT DECISION page, which states that, "More recently, '' See The petitioner's company website is inconsistent with its statement that it did not merge with It is incumbent on the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). The evidence submitted in response to our NOID may demonstrate the existence of two separate and active entities of and However, this evidence does not independently and objectively demonstrate that the petitioner, , continues to have a bona fide job opportunity for a business development manager. Therefore, the petition must also be denied because the petitioner has not established that an actual bona fide job opportunity continues to exist for the beneficiary with the petitioner. 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 motion to reopen is granted. The appeal is dismissed and the petition will remain denied.
  18. 18. (b)(6) DATE: OFFICE: TEXAS SERVICE CENTER JUL 25 2014 INRE: Petitioner: Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services FILE: PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision ofthe Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law 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.F.R. § 103.5. Do not file a motion directly with the AAO. Thank you, Ron Rosenberg Chief, Administrative Appeals Office www.uscis.gov
  19. 19. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director, Texas 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 full-service digital printing company. It seeks to permanently employ the beneficiary in the United States as a business development manager. The petitioner requests classification of the beneficiary as an advanced degree professional pursuant to section 203(b)(2) ofthe Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). At issue in this case is whether the beneficiary possesses an advanced degree as required by the terms ofthe labor certification and the requested preference classification. I. PROCEDURAL HISTORY As required by statute, the petition is accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the U.S. Department of Labor (DOL). I The priority date ofthe petition is January 8, 2013.2 Part H of the labor certification states that the offered position has the following minimum requirements: H.4. Education: Bachelor's in Business Administration. H.5. Training: None required. H.6. Experience in the job offered: 60 months in the job offered. H.7. Alternate field of study: None accepted. H.8. Alternate combination of education and experience: None accepted. H.9. Foreign educational equivalent: Not Accepted. H.l 0. Experience in an alternate occupation: 60 months in a related occupation. H.14. Specific skills or other requirements: Strong knowledge of marketing principles and research techniques and methodologies; Experienced in applying standard concepts, practices, and procedures within marketing and market research; Must be self-directed but able to work effectively in a team environment; strong analytical and communication skills required. Employer will accept any suitable combination of education, training and/or experience. Part J of the labor certification states that the beneficiary possesses a Bachelor's in Business Administration from in Venezuela, completed in 2003. The record contains a copy of the beneficiary's diploma and transcripts from in Venezuela, issued on October 7, 2003. I See section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 2 The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d).
  20. 20. (b)(6) NON-PRECEDENT DECISION Page 3 The record also contains an evaluation of the beneficiary's educational credentials prepared by for on March 20, 2009. The evaluation states that the beneficiary's degree is the foreign equivalent to a U.S. Bachelor's degree in Business Administration from an accredited university or college. Part K of the labor certification states that the beneficiary possesses the following employment experience: • Marketing Manager with 2009. in Venezuela from November 1, 2007 until July 1, • VP Business Development, Quality of Service Manager, and Advertising and Promotion Supervisor with in Venezuela from November 1, 1995 until October 1, 2007. The petitioner submitted the following evidence of the beneficiary's experience prior to the director's denial: • A translated experience letter from Human Resources Manager, stating that the beneficiary worked at this financial institution: as VP of Business Development; Customer Service Quality Manager; and Advertising and Promotional Dept. Head during the years from November 1, 1995 to October 1, 2007. • A translated experience letter from 'Manager- Human Resources on letterhead, dated August 2013, stating that the company employed the beneficiary as a Marketing Manager from November 15, 2007 until July 30, 2009. The director denied the petition because the petitioner had not established that the beneficiary possessed an advanced degree as required in the approved labor certification and by the immigrant visa category. On appeal, the petitioner submits additional employment verification letters; a job description; and commercial registry documentation to establish the merger between The petitioner resubmits the beneficiary's education credentials and evaluation dated March 20, 2009 from The petitioner states through counsel that the updated experience letters establish that the beneficiary qualifies and is eligible for a visa in the advanced degree professional category. The petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis. We consider all pertinent evidence in the 3 See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. US Dept. ofTransp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g., Soltane v.
  21. 21. (b)(6) NON-PRECEDENT DECISION Page4 record, including new evidence properly submitted upon appeal.4 A petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the director does not identify all ofthe grounds for denial in the initial decision.5 II. LAW AND ANALYSIS The Roles of the DOL and USCIS in the Immigrant Visa Process At the outset, it is important to discuss the respective roles of the DOL and U.S. Citizenship and Immigration Services (USCIS) in the employment-based immigrant visa process. As noted above, the labor certification in this matter is certified by the DOL. The DOL's role in this process is set forth at section 212(a)(5)(A)(i) ofthe Act, which provides: Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that- (I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions ofworkers in the United States similarly employed. It is left to USCIS to determine whether the offered position and the beneficiary qualify for the requested preference classification, and whether the beneficiary satisfies the minimum requirements ofthe offered position as set forth on the labor certification. There is no doubt that the authority to make preference classification decisions rests with INS. The language of section 204 cannot be read otherwise. See Castaneda- Gonzalez v. INS, 564 F.2d 417, 429 (D.C. Cir. 1977). In turn, DOL has the authority to make the two determinations listed in section 212(a)(14).6 Id. at 423. The necessary result of these two grants of authority is that section 212(a)(14) DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 4 The submission of additional evidence on appeal is allowed by the instructions to Form I-290B, Notice of Appeal or Motion, which are incorporated into the regulations by 8 C.F.R. § 103.2(a)(l). 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). 5 See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (91 h Cir. 2003). 6 Based on revisions to the Act, the current citation is section 212(a)(5)(A).
  22. 22. (b)(6) Page 5 NON-PRECEDENTDECISION determinations are not subject to review by INS absent fraud or willful misrepresentation, but all matters relating to preference classification eligibility not expressly delegated to DOL remain within INS' authority. Given the language ofthe Act, the totality of the legislative history, and the agencies' own interpretations of their duties under the Act, we must conclude that Congress did not intend DOL to have primary authority to make any determinations other than the two stated in section 212(a)(14). If DOL is to analyze alien qualifications, it is for the purpose of "matching" them with those of corresponding United States workers so that it will then be "in a position to meet the requirement of the law," namely the section 212(a)(14) determinations. Madany v. Smith, 696 F.2d 1008, 1012-1013 (D.C. Cir. 1983). Relying in part on Madany, 696 F.2d at 1008, the Ninth Circuit stated: [I]t appears that the DOL is responsible only for determining the availability of suitable American workers for a job and the impact of alien employment upon the domestic labor market. It does not appear that the DOL's role extends to determining if the alien is qualified for the job for which he seeks sixth preference status. That determination appears to be delegated to the INS under section 204(b), 8 U.S.C. § 1154(b), as one of the determinations incident to the INS's decision whether the alien is entitled to sixth preference status. · KR.K Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 (9th Cir. 1983). The court relied on an amicus brief from the DOL that stated the following: The labor certification made by the Secretary of Labor . . . pursuant to section 212(a)(14) ofthe [Act] is binding as to the findings ofwhether there are able, willing, qualified, and available United States workers for the job offered to the alien, and whether employment of the alien under the terms set by the employer would adversely affect the wages and working conditions of similarly employed United States workers. The labor certification in no way indicates that the alien offered the certified job opportunity is qualified (or not qualified) to perform the duties of that job. (Emphasis added.) !d. at 1009. The Ninth Circuit, citing KR.K Irvine, Inc., 699 F.2d at 1006, revisited this issue, stating: The Department of Labor (DOL) must certify that insufficient domestic workers are available to perform the job and that the alien's performance of the job will not adversely affect the wages and working conditions of similarly employed domestic
  23. 23. (b)(6) Page 6 NON-PRECEDENT DECISION workers. !d. § 212(a)(14), 8 U.S.C. § 1182(a)(14). The INS then makes its own determination of the alien's entitlement to sixth preference status. !d. § 204(b), 8 U.S.C. § 1154(b). See generally K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008 9th Cir.1983). The INS, therefore, may make a de novo determination of whether the alien is in fact qualified to fill the certified job offer. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984). Therefore, it is the DOL's responsibility to determine whether there are qualified U.S. workers available to perform the duties of the offered position, and whether the employment of the beneficiary will adversely affect similarly employed U.S. workers. It is the responsibility of USCIS to determine if the beneficiary qualifies for the offered position, and whether the offered position and the beneficiary are eligible for the requested employment-based immigrant visa classification. Eligibility for the Classification Sought Section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees. See also 8 C.F.R. § 204.5(k)(1). The regulation at 8 C.F.R. § 204.5(k)(2) defines the terms "advanced degree" and "profession." An "advanced degree" is defined as: [A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. 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 A "profession" is defined as "one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." The occupations listed at section 10l(a)(32) of the Act are "architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries." The regulation at 8 C.F.R. § 204.5(k)(3)(i) states that a petition for an advanced degree professional must be accompanied by: (A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
  24. 24. (b)(6) Page 7 NON-PRECEDENT DECISION (B) An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years ofprogressive post-baccalaureate experience in the specialty. In addition, the job offer portion of the labor certification must require a professional holding an advanced degree. See 8 C.F.R. § 204.5(k)(4)(i). Therefore, an advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree, and that the offered position requires, at a minimum, a professional holding an advanced degree. Further, an "advanced degree" is a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years ofprogressive experience in the specialty. In the instant case, the petitioner claims that the beneficiary may be classified as an advanced degree professional based on a foreign degree equivalent to a U.S. bachelor's degree, followed by at least five years ofprogressive experience in the specialty. The evidence establishes that the beneficiary's bachelor's degree is equivalent to a bachelor's degree in business administration from an accredited university in the United States. Evidence relating to qualifying experience must be in the form of a letter from a current or former employer and must include the name, address, and title ofthe writer, and a specific description ofthe duties performed by the beneficiary. 8 C.F.R. § 204.5(g)(1). If such evidence is unavailable, USCIS may consider other documentation relating to the beneficiary's experience. !d. On appeal, the petitioner submits the following translated experience letters m support of the beneficiary's work experience: • A letter from Talent Management VP on letterhead dated January 2014, stating that this financial institution employed the beneficiary as a Business VP from October 16, 2006 until October 15, 2007; Manager of Personal Banking from September 15, 2005 until October 15, 2006; Quality and Service Manager January 1, 2003 until September 14, 2005; and Advertising and Promotion Supervisor from November 16, 1995 until December 31, 2002. • A letter from Classification and Remuneration Manager on letterhead dated February 24, 2014, stating "this bank" emp oyed the benetl.ciary as a Marketing Manager from November 1, 2007 until June 22, 2009. We accept the proof of the beneficiary's experience at However, the length of employment at this bank does not constitute at least tive years of post-baccalaureate experience as required in 8 C.F.R. § 204.5(k)(2). The evidence in the record establishes that the beneficiary earned her degree on July 29, 2003. Therefore, we will consider the experience gained
  25. 25. (b)(6) NON-PRECEDENTDECISION Page 8 from July 29, 2003 onwards. The experience letter from establishes the beneficiary's progressive post baccalaureate work experience from July 30, 2003 until October 15, 2007, which is approximately 4 years, 2 months, and 16 days. The letter from on letterhead is inconsistent with the letter from on _ letterhead in that both letters indicate that the beneficiary was employed at the same time by the two different banks. On appeal, the petitioner suggests that the beneficiary's employment letters from and from are valid for the beneficiary's claimed employment as Marketing Manager at from November 1, 2007 - June 22, 2009. The petitioner submits a partially translated certificate from the Superintendent Office of Banking Institutions. The translated certificate does not provide a date when any merger transaction occurred or a complete translation ofthe document. The translation of the stock au2:mentation document as proof of a merger between and does not comply with the terms of 8 C.F.R. § 103.2(b)(3), whic provides that: Translations. Any document containing foreign language submitted to [USCIS] shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English. Because the petitioner failed to submit a certified translation of the complete documentation submitted, we cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3). Accordingly, the evidence will not be accepted. We have searched in publicly available records for the date of any the merger between - As noted above, the record contains an experience letter from , Manager - Human Resources on _ letterhead, dated August 2013, stating that the company employed the beneficiary as a Marketing Manager from November 15, 2007 until July 30, 2009. The date of the letter from of on August 2013 is inconsistent with the noted merger in which is the surviving company effective January 11, 2012. Further, the experience letter written by Ms. does not include the soecific description of the duties performed by the beneficiary with nor has Ms. ~stablished that she was a current or former employee who was a trainer or employer with While the record 7 A press release on tht Januarv 1L 2012 between website, indicates that a merger occurred on and that is the survtvmg company.
  26. 26. (b)(6) NON-PRECEDENT DECISION Page 9 does contain a description of job duties for a Marketing Manager with we cannot accept it as a specific job description of the beneficiary's duties while employed with Thus the experience letter from Ms. does not establish the progressive post-baccalaureate work experience ofthe beneficiary. Therefore, we find it more likely than not that the beneficiary did not have five years of post- baccalaureate experience in the specialty as ofthe priority date. After reviewing all of the evidence in the record, it is concluded that the petitioner has failed to establish that the beneficiary possessed at least a U.S. academic or professional degree (or a foreign equivalent degree) above a baccalaureate, or a U.S. baccalaureate (or a foreign equivalent degree) followed by at least five years of progressive experience in the specialty. Therefore, the beneficiary does not qualify for classification as an advanced degree professional under section 203(b)(2) of the Act. The Minimum Requirements of the Offered Position The petitioner must also establish that the beneficiary satisfied all of the educational, training, experience and any other requirements of the offered position by 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 (Act. Reg. Comm. 1977); see also Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg. Comm. 1971). In evaluating the job offer portion of the labor certification to determine the required qualifications for the position, users may not ignore a term of the labor certification, nor may it impose additional requirements. See Madany, 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 F.2d at 1006; Stewart Infra- Red Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). Even though the labor certification may be prepared with the beneficiary in mind, users has an independent role in determining whether the beneficiary meets the labor certification requirements. See Snapnames. com, Inc. v. Michael Chertojf, 2006 WL 3491005 *7 (D. Or. Nov. 30, 2006). In the instant case, the labor certification states that the offered position requires 60 months of experience in the job offered or an alternate occupation. As noted above, the petitioner has not established the beneficiary's required 60 months of progressive post-bachelorette experience in the job offered or in an alternate occupation to qualify as an advanced degree professional. Thus, the petitioner has not established the beneficiary's minimum requirements for the position as required in the approved labor certification. III. CONCLUSION In summary, the petitioner failed to establish that the beneficiary possesses an advanced degree as required by the terms of the labor certification and the requested preference classification and that the beneficiary meets the minimum requirements of the position. Therefore, the beneficiary does not
  27. 27. (b)(6) NON-PRECEDENT DECISION Page 10 qualify for classification as a member of the professions holding an advanced degree under section 203(b)(2) ofthe Act. The director's decision denying the petition is affirmed. The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not met that burden. ORDER: The appeal is dismissed.

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