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Aug 13 2010 in Re

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Aug 13 2010 in Re U.S. Department of Homeland Security U. S. Citizenship and Immigration Services identifying data deleted to Office ofAdminislrufive Appeals MS 2090 pnvent clearly unwarranted Washinaton.", DC 20529-2090 invasion of personal privacy U.S. Citizenship and Immigration PUBLIC COPY FILE: Office: NEBRASKA SERVICE CENTER Date: -LIN 06 105 54262 AUG 13 2010 IN RE: PETITION: Immigrant Petition for Alien Worker as a Skilled Worker or Professional pursuant to Section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(3) ON BEHALF OF PETITIONER: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, with a fee of $585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be tiled within 30 days of the decision that the motion seeks to reconsider or reopen. DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petitioner is a motel. It seeks to employ the beneficiary permanently in the United States as an general maintenance worker.' As required by statute, the petition is accompanied by a Form ETA 750, Application for Alien Employment Certification, approved by the United States Department of Labor (DOL). The director determined that the petitioner had not established that it had the continuing ability to pay the beneficiary the proffered wage. The director denied the petition accordingly. The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. The procedural history in this case is documented by the record and incorporated into the decision. Further elaboration of the procedural history will be made only as necessary. The single issue in this case is whether or not the petitioner has the ability to pay the proffered wage as of the 2001 priority date and continuing until the beneficiary obtains lawful permanent residence. Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(i), provides for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years training or experience), not of a temporary nature, for which qualified workers are not available in the United States. The regulation at 8 C.F.R. 5 204.5(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. 1 The record indicates that the petitioner substituted the instant beneficiary for the original beneficiary. The record contains an I797 Receipt notice dated October 23, 2002 for the approval of the original beneficiary's 1-140 petition (LIN 03 001 51475). United- States Citizenship and Immigration Services (USCIS) computer records do not indicate that the original beneficiary ever adjusted his status as a result of the prior approved 1-140 petition. The petitioner also indicated on the 1-140 petition that the petitioner's owner had filed an 1-130 relative petition (LIN 99 146 51984) for the beneficiary as the beneficiary's brother, and that the beneficiary's mother, Laxmiben Patel, had also filed an 1-130 petition (WAC 05 156 54339) for the beneficiary. The AAO notes that the director stated in his decision that the petitioner is required to demonstrate sufficient financial resources to pay the first year of the beneficiary's proffered wage. Pursuant to 8 Page 3 The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority date, which is the date the Form ETA 750, Application for Alien Employment Certification, was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. 5 204.5(d). The petitioner must also demonstrate that, on the priority date, the beneficiary had the qualifications stated on its Form ETA 750, Application for Alien Employment Certification, as certified by the DOL and submitted with the instant petition. Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). Here, the Form ETA 750 was accepted on April 30, 2001.~ The proffered wage as stated on the Form ETA 750 is $18.02 per hour ($37,48lper year). The Form ETA 750 states that the position requires two years of prior work experience in the proffered position. The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 38 1 F.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeaL4 On appeal, counsel states that the petitioner has the ability to pay the proffered wage as of 2001 and onward. Counsel states that the petitioner provided evidence in its response to the director's WE of the petitioner's additional assets such as certificate of deposits, bank account and an existing line of credit,. Counsel resubmits the petitioner's Forms 1120s for tax years 2001 to 2006, with a list of the petitioner's gross sales and total assets for these years, and submits for the first time, the petitioner's Form 1120S for tax year 2007. Counsel also-submits Forms 1040 U.S. individual ~ncomeTax Return for identified on Motel Assets Purchase Agreement in the record as the peritloner'; olvners. I:or 1a.x years 2001 10 2007. ('oun.;c.l also submits copi~.sof thc I.om~s1 I 20s fvr idcntifitd as another of- businesses. Counsel also submits a letter dated November 4, 200 , the petitioner's accountant. C.F.R. 5 204.5(g)(2), the petitioner has to establish its ability to pay the proffered wage at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Although the director examined the petitioner's tax returns for tax years 2001 to 2006 in his decision, his focus on the petition's priority year is misplaced. The AAO will withdraw this part of the director's decision. Counsel in a cover letter with the initial 1-140 petition refers to the date of certification for the initial ETA Form-750 as September 4, 2002. The AAO notes that the date of receipt of the ETA Form-750 by DOL determines the priority date. Thus, April 30, 2001 is the priority date for the instant petition. 4 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.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). Page 4 have a net worth of Statement for , dated October 10, 2008. Among the additional evidence that counsel submits are- copies of U.S. Savings Bonds in the name of,and business checking accounts for . Further documentation submitted on appeal include a receipt for a key- jumbo Only two documents in the evidence submitted on appeal pertain directly to the petitioner: the August 30, 2008 statements for two of the petitioner's Small Business checking accounts with National City Bank. These two statements indicate ending balances of $6,260.49 and $3,794.61, respectively. The evidence in the record of proceeding shows that the petitioner is structured as an S corporation. On the petition, the petitioner claimed to have been established in January 2, 1997, to have a gross annual income of $143,918, and to currently employ two workers. According to the tax returns in the record, the petitioner's fiscal year is based on a calendar year. The AAO does not find a Form ETA 750, Part B, filled out and signed by the instant beneficiary. Therefore, the record cannot establish whether the beneficiary worked for the petitioner as of the 2001 priority date.5 The petitioner must establish that its job offer to the beneficiary is a realistic one. Because the filing of an ETA 750 labor certification application establishes a priority date for any immigrant petition later based on the ETA 750, 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.
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