MATTER OF I-S-, LLC

APPEAL OF TEXAS SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 12, 2017

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The. Petitioner, a government contracting business, seeks to permanently employ the Beneficiary as a financial analyst under the third preference immigrant classification of professional. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status. ~

The Director, Texas Service Center, denied the petition. The Director found that the Petitioner did not establish its continuing ability to pay the proffered wage of the job offered from the priority date of the petition onward.

The matter is now before us on appeal. We agree with the Petitioner that it has established its continuing ability to pay the proffered wage. However, the record does not establish the Beneficiary's qualifications for the proffered position.

Upon de novo review, we will remand the matter to the Director for further proceedings.

I. PROCEDURAL HISTORY

The Form I-140, Immigrant Petition for Alien Worker, was filed on December 15, 2014. As required by statute, the petition was accompanied by an ETA Form 9089, Application for Permanent Employment Certification (labor certification), which was tiled with the Department of Labor (DOL) on February 19,2014, and'certified by the DOL. In section G of the labor certification, the Petitioner stated that the proffered wage for the job o±Iered is $84,323 per year. In section K of the labor certification, the Petitioner stated that it had employed the Beneficiary as a financial analyst sinceJanuary17,2013. ,

As evidence of the Petitioner's ability to pay the proffered wage, the Petitioner submitted copies of the following documentation with the petition and in response to the Director's request for evidence:

• The Petitioner's IRS Forms 1065, U.S. Return ofPartnership Income, for 2011, 2012, 2013, and 2014;

• The Beneficiary's IRS Forms W-2, Wage and Tax Statements, for 2013 and 2014;

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• The Beneficiary's bimonthly earnings statements for five pay periods running from July 1 to September 15, 2015;

• The Petitioner's overall payroll for the pay period of September 1 to 15, 2015; and • A letter from the Petitioner's associate financial officei/office manager, dated

September 23 , 2015, stating that the company had more than .700 employees and had the financial capability to pay the proffered wage of the job offered as of the priority date.

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On February 1, 2016, the Director denied the petition on the ground that the Petitioner did not establish its ability to pay the Beneficiary the full proffered wage. The Director noted that the Beneficiary's Forms W-2 showed that he was paid $53,500 in 2013 and $53,275.51 in 2014- well below the proffered wage. The Director also reviewed the Petitioner's Forms 1065 for 2013 and 2014, which recorded net losses of $853,152 in 2013 and $358,714 in 2014, net current assets of $28,533 in 2013, and net current liabilities of $2,753,320 in 2014. Based on the foregoing figures, the Director found that the Petitioner did not establish its ability to pay the full proffered wage of $84,323 in 2013 or 2014. 1

The Petitioner filed an appeal on March 1, 2016, which was supplemented by a brief from counsel and additional documentation, including:

• A letter from the Petitioner's chief financial officer, dated March 24, 2016, stating that the Petitioner has over 100 employees and has the financial ability to pay the proffered wage of the job offered to the Beneficiary;

• . A letter from a certified public accountant (CPA), dated February 23 , 2016, asserting that the Petitioner's federal tax return for 20 14 would show net income and net current assets, rather than a net loss and net current liabilities, if the accrual basis of accounting were utilized rather than the cash basis of accounting;

• Unaudited income statement and balance sheet for 2014 prepared by the CPA, utilizing the accrual method of accounting, which yield a net income figure of $858,392 and a net current assets figure of $892,793;

• Two pages of the Petitioner's Form 1065 for 2014 stamped "REVISED" which record net incomeof$852,392 and net current assets of$892,793; and

• A list of the Petitioner's pending contracts and the average monthly revenue they generate.

11. LAW AND ANALYSIS

A. Petitioner's Ability to Pay the Proffered Wage

The regulation at 8 C.F.R. § 204.5(g)(2) states:

1 We note that the Petitioner must only establish its ability to pay the proffered wage from the priority date in 2014 onward.

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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. In a case where the prospective United States employer employs 100 or more workers, the director may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage. In appropriate cases, additional evidence, such as profit/loss statements, bank account records, or personnel records may be submitted by the petitioner or requested by the Service.

Thus, the Petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the labor certification application was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d). In this case, the priority date is February 19, 2014.

The Petitioner must establish that its job offer to the Beneficiary is a realistic one. Because the tiling of an ETA Form 9089 labor certification application establishes a priority date for any immigrant petition later based on the certified 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 (Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2). In evaluating whether a job offer is realistic, U.S. 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 also be considered if the evidence warrants such consideration. See Matter o.fSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967).

In determining the petitioner's ability to pay the proffered wage, USCIS first examines whether the beneficiary was employed and paid by the petitioner during the period following the priority date. 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 is considered prima .facie proof of the petitioner's ability to pay the proffered wage.

In this case, the record indicates that the Beneficiary has been employed by the Petitioner since January 2013, more than a year before the priority date. The proffered wage of the job ot1ered, as stated in Part G ofthe ETA Form 9089, is $84,323 per year. The Beneficiary's Form W-2 for 2014 shows that he received "wages, tips, other compensation" of $53,275.51, which was approximately $31,000 below the proffered wage. The Beneficiary's earnings statements in 2015 show that his bimonthly gross pay was $2229.17, which amounts to annual gross pay of $53,500.08. That figure is virtually the same pay rate the Beneficiary had in 2014, and approximately $31,000 below the

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proffered wage. Thus, the Petitioner has not established its ability to pay the proffered wage from the priority date onward based on the wages actually paid to the Beneficiary.

If the petitioner does not establish that it has paid the beneficiary an amount at least equal to the proffered wage from the priority date onward, USCIS will examine the net income and net current assets figures entered on the petitioner' s federal income tax retum(s). If either of these figures equals or exceeds the proffered wage or the difference between the proffered wage and the amount paid to the beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during that year. 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 Woodcra.fi Haw., Ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984); Estrada­Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rivzi v. Dep "t of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), a.ff'd, -- Fed. Appx. --, 2015 WL 5711445, *1 (5th Cir. Sept. 30, 2015).

The record includes a copy of the Petitioner' s IRS Form 1065 for 2014. As shown in the Petitioner's 2014 tax return, the Petitioner had a net loss of $358,714 and net current liabilities of $2,753,320 (the difference between its current assets of $578,833 and its current liabilities of $3,332,153) that year. 2 Thus, the Petitioner did not have any net income and or net current assets in 2014 to cover the difference between the proffered wage and the compensation the Beneficiary actually received in 2014.

The Petitioner's 2014 tax return was prepared pursuant to the cash method of accounting; in which revenue is recognized when it is received, and expenses are recognized when they are paid. See IRS Pub. 538, at http://www.irs.gov/publications/p538/ar02.html#d0e1136 (last visited Dec. 13, 2016). The Petitioner claims that it would have recorded substantial net income and net current assets on its 2014 Form 1065 if it had utilized the accrual method of accounting rather than the cash method of accounting, and has submitted two revised pages of the Form 1065 as evidence thereof. While stamped "REVISED," there is no proof that these pages (Schedule L) were actually submitted to the Internal Revenue Service (IRS) and accepted by the IRS as part of an amended filing of the Petitioner's 2014 tax return. The letter to USCIS from the CPA states that "[i]f you would like we can file an amended [Form 2014 Schedule L] on accrual basis," which indicates that no such amendment has been filed with the IRS. The Petitioner also submits an unaudited 2014 income statement and bal~nce sheet prepared pursuant to the accrual method.3

2 The record indicates that the Petitioner is structured as a limited liability company (LLC) and taxed as a partnership. For an LLC taxed as a partnership, where the petitioner's income is exclusively from a trade or business, USC IS considers net income to be the figure shown on Line 22 of page one of the petitioner's Form I 065. However, where the petitioner has income, credits, deductions, or other adjustments from sources other than a trade or business, they are reported on Schedule K. If the Schedule K has relevant entries for additional income or additional credits, deductions or other adjustments, net income is found on page 5 of Form 1065 at line I of the Analysis of Net Income (Loss) of Schedule K. Net current assets (or liabilities) are the difference between the petitioner' s current assets, shown on Schedule L, lines l(d) through 6(d), and its current liabilities, shown on lines 15(d) through 17(d) ofSchedule L. 1 The regul,ation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to

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We are not persuaded by an analysis in which the Petitioner, or anyone on its behalf, seeks to rely on a tax return prepared pursuant to one method, but then seeks to shift revenue or expenses from one year to another as convenient to the Petitioner's present purpose. If revenues are not recognized in a given year pursuant to the cash accounting method then the Petitioner, whose taxes are prepared pursuant to cash rather than accrual, and who relies on its tax returns in order to show its ability to pay the proffered wage, may not use those revenues as evidence of its ability to pay the proffered wage during that year. Similarly, if expenses are recognized in a given year, the petitioner may not shift those expenses to some other year in an effort to show its ability to pay the proffered wage pursuant to some hybrid of accrual and cash accounting.4 The amounts shown on the Petitioner's 2014 tax return shall be considered as they were submitted to the IRS, not as amended pursuant to the accountant's adjustments.

Further, the list ofthe Petitioner's contracts and average monthly revenue from them do not provide additional evidence of the Petitioner's ability to pay the proffered wage. Any revenue received from such contracts would presumably be represented on the Petitioner's tax returns.

As for the letters from and stating that the Petitioner has more than 100 employees and claiming that it has the ability to pay the proffered wage to the Beneficiary, the regulation at 8 C.F.R. § 204.5(g)(2) provides that USCIS "may accept a statement from a financial officer of the organization which establishes the prospective employer's ability to pay the proffered wage (emphasis added)." Thus, we are not bound to accept claims by the Petitioner's financial officers that it has the ability to pay the proffered wage if such claims are not supported by other evidence in the record. Except for the modest net current assets recorded in 2013 ($28,533), the Petitioner recorded net losses (ranging from -$238,024 to -$635,908) and net current liabilities (ranging from -$705,441 to -$2,753,320) in the years from 2011 to 2014.

However, USCIS may also consider the totality of the Petitioner's circumstances, including the overall magnitude of its business activities, in determining the Petitioner's ability to pay the proffered wage. See Matter ofSonegawa, 12 I&N Dec. 612. USCIS may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside of its 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 petitioner's reputation within its industry, the overall number of employees, whether the beneficiary is replacing a former employee or an outsourced service, the amount of compensation paid to officers, the occurrence of any uncharacteristic business expenditures or losses, and any other evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage.

demonstrate its ability to pay the proffered wage, those financial statements must be audited . 4 Once a taxpayer has set up its accounting method and filed its first return, it must receive approval from the IRS before it changes from the cash method to an accrual method or vice versa. See IRS Pub. 538, at http://www. irs.gov/publications/p538/ar02 .html#d0e2874 (last visited Dec. 13 , 20 16).

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In this case, the Petitioner has been in business since 2003. It employs over 700 employees. The Petitioner paid considerable salaries and wages over the 4-year period from 2011 to 2014 ($715,909, $520,774, $3,908,730, and $3,982,226 in 2011, 2012, 2013, and 2014, respectively), and the Petitioner's federal income tax returns showed substantial, steadily increasing gross receipts in those years ($14,972,086, $24,208,229, $34,386,435, and $36,338,813 in 2011, 2012, 2013, and 2014, respectively). It also made guaranteed payments to its partners of $261 , 121 , $377,358, $218,220, and $152,892 in 2011 , 2012,2013, and 2014, respectively. The Petitioner' s payroll statement tor the period from September 1, 2015, through September 15, 2015, shows that it continued to pay substantial salaries and;wages in 2015. Based on the evidence of record \Ve determine that the Petitioner has established that the totality of its circumstances, as in Sonegav.,a, demonstrates its ability to pay the shortfall of approximately $31 ,000 between the proffered wage and the wages actually paid to the Beneficiary.

Therefore, we conclude that the Petitioner has established its continuing ability to pay the proffered wage from the priority date of the instant petition onward. We will therefore withdraw the Director' s contrary finding.

B. Beneficiary' s Qualifications

Although not mentioned by the Director in his decision, the evidence of record does not establish that the Beneficiary has met the minimum requirements of the labor certification to qualify for the job offered. The Petitioner must establish that the Beneficiary possessed all the education, training, and experience specified on the labor certification as of the priority date. See Matter of Wing 's Tea House, 16 I&N Dec. 158, 159 (Acting Reg' ! Comm' r 1977); Matter ofKatigbak. 14 I&N Dec. 45, 49 (Reg' ! Comm'r 1971). In this case, the record does not establish that the Beneficiary has met the minimum experience requirement as ofthe priority date of February 19, 2014.

In evaluating the Beneficiary's qualifications, USCIS must look to the job offer portion of the labor certification (Part H of the ETA Form 9089) to determine the required qualifications for the position. The labor certification in this case requires a bachelor's degree in ' accounting, finance, or business management. It also requires 24 months of experience in the job otTered - financial analyst - and experience in an alternate occupation is not acceptable (ETA Form 9089, Parts H.3, H.6 and 6-A, and H.l 0). The job duties of the financial analyst are described as follows in Part H.ll of the labor certification:

Cash flow analysis. Financial statements analysis, planning and preparation. Federahand State tax analysis, planning and preparation. Review and analyze budgets and forecasts across the entire program to ensure effective utilization of resources and appropriate management of costs. Customized financial reports preparation for management to make decisions at contract, job and task levels. Implementing new Government Contracting accounting system in compliance with

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DCAA. Accounts Receivable and Accounts Payable supervision. Job costing and Task based costing. Financial position analysis at any given point at every possible level (company, contract, job, task, etc.). Proposal preparation for prospective clients. Training new employees to work on and/or accounting system, and other software tools used in Government Contracting.

Specific skills and other requirements for the job are identified in Part H.14 of the labor certification. They include strong knowledge of the and/or accounting system, knowledge of

and/or accounting software, as well as strong knowledge of spreadsheets and word processing. Part H.l4 also states that "CPA and/_or IRS Enrolled Agent (EA) is a plus." The O*Net Code listed for the proffered position is 13-2011 for accountants and auditors. 5 Part H.l5 of the labor certification indicates that the job opportunity does not involve a combination of occupations.

Part K of the ETA Form 9089 (Alien Work Experience) lists two jobs for the Beneficiary: (a) as a financial analyst for the Petitioner from January 17, 2013, up to the present; and (b} as an accountant for in Virginia, from January 2, 2010, to January 10, 2013. Part J.21 of the labor certification indicates that the Beneficiary did not gain any qualifying experience with the Petitioner in a substantially comparable position to the job offered.6 Because the Beneficiary's experience with the Petitioner appears to be substantially comparable to the pr~ftered position, and the labor certification does not permit consideration of experience in an"alternate occupation, the Petitioner cannot rely on this experience to qualify the

5 O*NET is the current occupational classification system in use by the DOL. According to O*Net, accountants analyze financial information and prepare financial reports to determine or maintain record of assets, liabilities, profit and loss, tax liability, or other financial activities within an organization. O*Net Online, at https://www.onetonline.org/link/summary/13-2011.01 (last visited Dec. 13, 2016). We note that the O*Net Code for the position of financial analyst is 13-2051.00. According to O*Net, financial analysts conduct quantitative analyses of information affecting investment programs. O*Net Online, at https:!/www.onetonline.org/link/summary/13-2051.00 (last visited Dec. 13, 20 16). 6 In general, ifthe answer to question J.21 is no, then the experience with the Petitioner may be used by the Beneficiary to qualify for the proffered position if1 the position was not substantially comparable and the terms of the ETA Fonn 9089 at H.l 0 provide that applicants can qualify through an alternate occupation. A "substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. 20, C.F.R. § 656.17(i)(5)(ii). Here, the Beneficiary indicated at Part K that his position with the Petitioner was as a financial analyst with the following duties: cash flow analysis; financial stateme.nts analysis, planning and preparation; federal and state tax analysis, planning and preparation; customized financial reports preparation for management to make decisions at contract, job and task levels; job costing and task based costing; help in proposal preparation for prospective clients; and accounting system training. Therefore, the experience gained with the Petitioner as a .financial analyst appears to be substantially comparable to the proffered position of financial analyst. According to DOL regulations, therefore, the Petitioner cannot rely on this experience for the Beneficiary to qualify for the proffered position. Further, the terms of the labor certification supporting the instant Form 1-140 petition do not penn it consideration of experience in an alternate occupation.

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Beneficiary for the proffered job. Instead, the Petitioner must establish that the Beneficiary acquired the requisite 2 years of experience in the job offered while working for

The instant Form I -140 was accompanied by a letter from the managing director of dated October 8, 2014, confirming that the Beneficiary was employed as an accountant from January 2010 to January 2013, and describing his job duties as follows:

Tax analysis, planning and preparation; assist tax manager in preparing corporate tax returns, individual tax returns, personal property and sales tax returns. Assist payroll manager as needed. Represent client before IRS and state tax departments. Financial statements preparation, establish judicial entities (S-Corp, C-Corp, LLC, etc.) for clients. Cash flow analysis, budgets and forecasts, resources and cost management, accounts receivable and accounts payable, training new employees on tax and accounting software.

While there appears to be some overlap between the job duties performed by the Beneficiary as an accountant at and the job duties of the financial analyst position with the Petitioner, the letter from does not indicate that the Beneficiary's experience encompassed all the job duties of the proffered position.7 Specifically, the job at did not appear to include financial statement analysis and planning; customized financial reports preparation for management to make decisions at contract, job and task levels; implementing new government contracting accounting system , in compliance with DCAA; job costing and task based costing; financial position analysis at any given point at every possible level (company, contract, job, task, etc.); and proposal preparation for prospective clients. Thus, the lett~r from does not establish that the Beneficiary gained at least 2 years of experience in the job offered of financial analyst.

We also note that the description of the Beneficiary's experience with the Petitioner since January 2013 as set forth on the labor certification is inconsistent with the description of the position provided in two prior nonimmigrant (Form I-129) petitions filed by the Petitioner on behalf of the Beneficiary. In those petitions (receipt numbers and which were approved by USCIS, granted the Beneficiary H-lB nonimmigrant visa status, and allowed the Petitioner to hire the Beneficiary in January 2013 - the job was called a tax accountant. On the instant labor certification application, the job is listed at Part K as a financial analyst. The job duties listed on the prior Form 1-129 petitions overlap, but are not identical with, the job duties

7 We note that the letter from does not indicate that the Beneficiary gained knowledge of the or accounting system and with, or accounting software during his work as an accountant from 20 I 0 to 2013, yet the proffered position requires "strong knowledge of and/or accounting system," and knowledge of and/or accounting software. We also note that the Beneficiary's H-1 B position as a tax accountant with required either a master's degree in business administration or a master's degree in accounting, plus 6 months of experience in income tax preparation. The proffered job of financial analyst requires a bachelor's degree in accounting, finance, or business management, plus 24 months of experience in the job offered.

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listed on the labor certification application. 8 It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent, objective evidence. Attempts to explain or reconcile such inconsistencies will not suffice without competent evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. See !d.

For the reasons discussed above, we conclude that the Petitioner has not established that the Beneficiary has at least 2 years of experience in the job offered as required by the terms of the labor certification. Because the record does not establish the Beneficiary's qualifications for the proffered position, we will remand the matter to the Director.

III. CONCLUSION

The Petitioner has established its continuing ability to pay the proffered wage of the job offered. We will therefore withdraw the Director's decision. However, the petition is not approvable. We will therefore remand the matter to the Director for further proceedings. -

On remand, the Director should notifY the Petitioner of additional evidence needed to demonstrate that the Beneficiary meets the minimum requirements for the proffered job. The Director may also request evidence addressing any other issues he may identify. He should afford the Petitioner a reasonable opportunity to respond. Upon receipt of the Petitioner's response, the Director should review the entire record and enter a new decision.

ORDER: The decision ofthe Director, Texas Service Center, is withdrawn. The matter is remanded to the Director, Texas Service Center, for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Cite as Matter ofl-S-, LLC, ID# 07956 (AAO Jan. 12, 2017)

8 As previously noted, the Beneficiary indicated at Part K that his position with the Petitioner was as a financial analyst with the following duties: cash flow analysis; financial statements analysis, planning and preparation; federal and state tax analysis, planning and preparation; customized financial reports preparation for management to make decisions at contract, job and task levels; job costing and task based costing; help in proposal preparation for prospective clients; and

accounting system training. The duties of the position of tax accountant as set forth in the Petitioner's H-1 B nonimmigrant petitions on behalf of the Beneficiary included: analyzing firm's financial structure and do appropriate tax planning; prepare periodic financial statements; implement the customized tax and accounting system to comply with DCAA regulations; cash flow analysis; fraud prevention; dealing with IRS and state tax authorities regarding company's issues; designing efficient business proposals for new projects; analyzing the client's tax and accounting system to better implement our customized solutions; bank reconciling and year end closing of financial statements; assisting the payroll specialist, if needed; and attending staff and office meetings.

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