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
2 8 201Z
OFFICE: TEXAS SERVICE CENTER
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. § 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 AAO inappropriately applied the law in reaching its decision, or you have additional
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. Thank you,
I' J:.~ c f. If. lifi. (C;r;>X'nu.k.
Perry Rhew Chief, Administrative Appeals Office
DISCUSSION: On March 23, 2004, United States Citizenship and Immigration Services (USCIS), Vermont Service Center (VSC), received an Immigrant Petition for Alien Worker, Form 1-140, from the petitioner. The employment-based immigrant visa petition was initially approved by the VSC director on June 3, 2004. The director of the Texas Service Center (the director), however, revoked the approval of the immigrant petition on January 14,2010, and the petitioner subsequently appealed the director's decision to revoke the petition's approval to the Administrative Appeals Office (AAO). The appeal will be dismissed.
Section 205 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1155, provides that "[t]he Attorney General [now Secretary, Department of Homeland Security], may, at any time, for what [she] deems to be good and sufficient cause, revoke the approval of any petition approved by [her] under section 204." The realization by the director that the petition was approved in error may be good and sufficient cause for revoking the approval. Matter of Ho, 19 I&N Dec. 582, 590 (B1A 1988). The petitioner is a quick service restaurant. It seeks to employ the beneficiary permanently in the United States as a cook pursuant to section 203(b)(3)(A)(i) of the Act, 8 U.S.c. §1153(b)(3)(A)(i).! As required by statute, the petition is submitted along with an approved Form ETA 750 labor certification. As stated earlier, this petition was approved on June 3, 2004 by the VSC, but that approval was revoked in January 2010. The director determined that the petitioner failed to follow the U.S. Department of Labor (DOL) recruitment procedures in connection with the approved labor certification application and that the documents submitted in response to the director's Notice of Intent to Revoke (NOIR) were in themselves a willful misrepresentation of material facts, constituting fraud. The director also determined that the record did not establish the beneficiary's qualifications as of the priority date. Accordingly, the director revoked the approval of the petition under the authority of 8 C.F.R. § 205.1. On appeal, counsel for the petitioner 2 contends that the director has improperly revoked the approval of the petition. Specifically, counsel asserts that the director did not have any good and sufficient cause as required by section 205 of the Act; 8 U.S.c. § 1155 to revoke the approval of the petition. Counsel argues that the petitioner did comply with the DOL recruitment requirements and that the beneficiary possessed the minimum requirements required on the ETA 750 prior to the filing of the labor certification application. ! Section 203(b)(3)(A)(i) of the Act, 8 U.S.c. § 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. will be referred to as counsel throughout this decision. Former who filed the petition, will be referred to as previous counselor by name. AAO notes t h a t _ was suspended from the practice of law before the Immigration Courts, Board of Immigration Appeals (B1A), and Department of Homeland Security (DHS) for a period of three years from March 1, 2012 to February 28, 2015.
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 P.3d 143, 145 (3d Cir. 2004). The AAO considers all pertinent evidence in the record, including new evidence properly submitted upon appeal.' Although not raised by counsel, as a procedural matter, the AAO finds that 8 C.P.R. § 205.1 only applies to automatic revocation and is not the proper authority to be used to revoke the approval of the petition in this instant proceeding. Under 8 C.P.R. § 205.1(a)(3)(iii), a petition is automatically revoked if (A) the labor certification is invalidated pursuant to 20 C.F.R. § 656; (B) the petitioner or the beneficiary dies; (C) the petitioner withdraws the petition in writing; or (D) if the petitioner is no longer in business. Here, the labor certification has not been invalidated; neither the petitioner nor the beneficiary has died; the petitioner has not withdrawn the petition; nor has the petitioner gone out of business. Therefore, the approval of the petition cannot be automatically revoked. The director's erroneous citation of the applicable regulation is withdrawn. Nonetheless, as the director does have revocation authority under 8 C.P.R. § 205.2, the director's denial will be considered under that provision under the AAO's de novo review authority. The threshold issue on appeal is whether the director adequately advised the petitioner of the basis for revocation of approval of the petition. As noted above, the Secretary of Homeland Security has the authority to revoke the approval of any petition approved by her under section 204 for good and sufficient cause. See section 205 of the Act; 8 U.S.C. § 1155. This means that notice must be provided to the petitioner before a previously approved petition can be revoked. More specifically, the regulation at 8 C.P.R. § 205.2 reads: (a) General. Any [USerS] officer authorized to approve a petition under section 204 of the Act may revoke the approval of that petition upon notice to the petitioner on any ground other than those specified in § 205.1 when the necessity for the revocation comes to the attention of this [USCIS]. (emphasis added). Purther, the regulation at
C.P.R. § 103.2(b)(16) states:
(i) Derogatory information unknown to petitioner or applicant. If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by [USCIS] and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation,
The submission of additional evidence on appeal is allowed by the instructions to the Porm 1290B, 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 of Soriano, 19 I&N Dec. 764 (BIA 1988). 3
rebuttal, or information presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding. Moreover, Matter of Arias, 19 I&N Dec. 568 (BIA 1988); Matter of Estime, 19 I&N Dec. 450 (BIA 1987) provide that: A notice of intention to revoke the approval of a visa petition is properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. However, where a notice of intention to revoke is based upon an unsupported statement, revocation of the visa petition cannot be sustained. Here, in the NOIR dated June 1,2009, the director wrote: The Service is in receipt of information revealing the existence of fraudulent information in the petitions with Alien Employment Certificates (ETA 750) and/or the work experience letters in a significant number of cases submitted to USCIS by counsel for the petitioner in the reviewed files. The director advised the petitioner in the NOIR that the instant case might involve fraud. The director specifically asked the petitioner to submit additional evidence to demonstrate that it had complied with all of the DOL recruiting requirements. The director also asked the petitioner to submit an original letter reaffirming its intent to employ the beneficiary in the proffered job and evidence that the beneficiary met the minimum experience requirements. The AAO finds that the director appropriately reopened the approval of the petition by issuing the NOIR, and gave the petitioner notice of the derogatory information specific to the current proceeding. In the NOIR, the director advised the petitioner that "the beneficiary must have met all of the requirements listed on the ETA 750" which in this case is two years of experience as an assistant manager. The director's NOIR sufficiently detailed the evidence of the record, pointing out deficiencies in the beneficiary's qualifications that would warrant a denial if unexplained and unrebutted, and thus was properly issued for good and sufficient cause. Specifically, in the NOIR, the director indicated that the beneficiary's letter, which stated that the April 1993 until beneficiary was employed by December 1996, was inconsistent with the records which Ideal was established on July 10, 2000. Thus, the AAO finds that the NOIR was properly issued pursuant to Matter of Arias, 19 I&N Dec. 568 (BIA 1988) and Matter of Estime, 19 I&N Dec. 450 (BIA 1987). Both Businesses that are officially registered with the Brazilian government are given a unique CNPJ number. CNPJ (Cadastro Nacional da Pessoa Juridica) is similar to the federal tax ID or employer ID number in the United States. The Department of State has determined that the CNPJ provides reliable verification with respect to the adjudication of employment-based petitions in comparing an individual's stated hire and working dates with a Brazilian-based company to that Brazilian company's registered creation date. 4
cases held that a notice of intent to revoke a visa petition is properly issued for "good and sufficient cause" when the evidence of record at the time of issuance, if unexplained and umebutted, would warrant a denial of the visa petition based upon the petitioner's failure to meet his burden of proof. The director found that the petition's approval must be revoked because petitioner did not establish the beneficiary's credentials. The AAO finds that the record does not support the petitioner's contention that the beneficiary had the requisite work experience in the job offered before the priority date. Consistent with Matter of Wing's Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977), the petitioner must demonstrate, among other things, that, on the priority date, the beneficiary had all of the qualifications stated on the Form ETA 750 as certified by the DOL and submitted with the petition. To determine whether a beneficiary is eligible for a preference immigrant visa, USCIS must ascertain whether the beneficiary is, in fact, qualified for the certified job. In evaluating the beneficiary'S qualifications, USCIS must look to the job offer portion of the labor certification to determine the required qualifications for the position. USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401,406 (Comm. 1986). See also, Madany v. Smith, 696 F.2d, 696 F.2d 1008, (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart InfraRed Commissary of Massachusetts, Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981). Here, as stated earlier, the Form ETA 750 was filed and accepted for processing by the DOL on April 30, 2001. The name of the job title or the position for which the petitioner seeks to hire is "cook." Under the job description, section 13 of the Form ETA 750, part A, the petitioner wrote, "Prepare anc ook[sic] various foods according to menu and customers[sic] requests also prepare sauces, clean up the working area at end of shift." Under section 14 of the Form ETA 750A the petitioner specifically required each applicant for this position to have a minimum of two years of work experience in the job offered. On the Form ETA 750, part B, signed by the beneficiary on April 19, 2001, he represented that he worked 40 hours a week at Ideal from 1993 until December 1996. The record includes a letter from confirming the beneficiary's employment as a cook from the letter does not include the title of the writer, nor does it specify the duties and responsibilities of the beneficiary; thus it fails to meet the regulatory requirements at 8 C.F.R. § 204.5(g)(1) and (1)(3)(ii)(A). petiticllleI that the letter from_ indicated that the business was registered under CNPJ and was not established until July 10, 2000 which would "indicate that the petitioner has submitted false documentation to verify the required work experience for the beneficiary."s In response, the petitioner submitted a letter stating: 5 The AAO notes that the translation submitted by the petitioner did not include _ number which is clear on the letterhead of the letter provided by_in Portugese.
Although it is true t h a t " was only registered with the eNPJ with the number • • • • • • • •on July 10, 2000, we have concluded that, the restaurant was open and operating since December of 1992, where the beneficiary, served as a cook in this company, from the periods of April 1993 to December 1996 ... _ continues to operate in Brazil in the same address, with the same fiscal title, under the same registered number in the eNPJ, but it was sold after May 2001, and it is currently under a new management. It was not possible to locate the previous proprietor. In the revocation decision, the director concluded that: The petitioner has not submitted supporting evidence to validate the beneficiary's qualifying experience as a cook and offers no new evidence to lift the doubts that have been cast on the validity of the initial documents submitted by the petitioner. On appeal, the petitioner submitted two declarations dated Pebruary 26, 2010 and March 9, 2010, stating that he worked with the beneficiary at Ideal from January 1993 until July 1995, and that the restaurant did not have a eNPJ number, nor did it accounting and tax records. The petitioner also submitted a letter dated March 1, 2010 that he knew the beneficiary when he was working at However the two declarations from and the letter from do not meet the regulatory requirements at 8 C.P.R. § 204.5(g)(I) and (1)(3)(ii)(A)6 because they fail to provide a specific description of the duties performed by the beneficiary. The AAO also notes t h a t _ letter indicates that he worked with the beneficiary as of January 1993, but the beneficiary stated on the ETA 750 B that he started working for _ in April 1993. It is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. Attempts to explain or reconcile the conflicting accounts, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. at 591-592. In the NOIR response, the petitioner also indicated that the beneficiary possesses other professional experience which he had acquired in the United States between December 1997 and March 2000, when he was hired by the petitioner. On appeal, the petitioner submitted a letter III.III~ stating that he employed the beneficiary at March 1998 to October 2001. The petitioner also submitted an affidavit from the benel'iciary his experience with. and other restaurants in the United States. However, the benficairy did not list the experience with _ from 1997 until 2000 on the ETA 750B signed on April 19, 2001, thus lessening the credibility of the letter. In Matter of Leung, 16 I&N Dec. 2530 (BIA 1976), the Board's
6 The regulation at 8 C.P.R. § 204.5(g)(I) and (1)(3)(ii)(A) requires that the employment experience verification letter include the name, address, and title of the writer, and a specific description of the duties performed by the beneficiary.
dicta notes that the beneficiary's experience, without such fact certified by DOL on the beneficiary's Form ETA 750B, lessens the credibility of the evidence and facts asserted, Moreover, the AAO notes that the beneficiary did not list the experience with any other restaurants on in the United States, including Ciro, on the Form G-325 Biographic Information that he' January 12, 2004. The beneficiary listed experience as security for and as delivery but did not indicate any experience as a cook or employment cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. at 591. The AAO affirms the director's decision that the petitioner failed to establish that the beneficiary met the minimum requirements of the offered position set forth on the labor certification as of the priority date. Therefore, the beneficiary does not qualify for classification as a professional or skilled worker under section 203(b )(3)(A) of the Act. Another issue raised on appeal is whether the director properly concluded that the petitioner did not comply with the recruitment procedures of the DOL. The director indicated that the petitioner did not conduct good faith recruitment and found that the petitioner had engaged in fraud or material misrepresentation with respect to the recruitment process. The AAO disagrees. The record does not show inconsistencies or anomalies in the recruitment process that would justify the issuance of a NOIR based on the criteria of Matter of S & B-C-, 9 I&N Dec. 436, 447 (A.G. 1961). Therefore, the director's conclusion that the petitioner did not comply with DOL requirements is withdrawn. Given the lack of credibility of the letter and the fact that the letter does not comply with the regulation in that it did not include the address of the author or provide a specific description of the duties of the beneficiary, the AAO will not consider the beneficiary'S experience _ _ and other American restaurants. The AAO will next address the director's finding that the petitioner engaged in fraud and/or material misrepresentation. On appeal, counsel contends that the director's finding of fraud or willful misrepresentation against the petitioner was arbitrary and based on a uscrs investigation of other petitioners that had been represented by the same counsel, With regard to immigration fraud, the Act provides immigration officers with the authority to administer oaths, consider evidence, and further provides that any person who knowingly or willfully gives false evidence or swears to any false statement shall be guilty of perjury. Section 287(b) of the Act, 8 U.S.C. § 1357(b). Additionally, the Secretary of Homeland Security has delegated to uscrs the authority to investigate alleged civil and criminal violations of the immigration laws, including application fraud, make recommendations for prosecution, and take other "appropriate action." DHS Delegation Number 0150.1 at para. (2)(1). The administrative findings in an immigration proceeding must include specific findings of fraud or material misrepresentation for any issue of fact that is material to eligibility for the requested
immigration benefit. Within the adjudication of the visa petition, a finding of fraud or material misrepresentation will undermine the probative value of the evidence and lead to a reevaluation of the reliability and sufficiency of the remaining evidence. Matter of Ho, 19 I&N Dec. at 591-592. Outside of the basic adjudication of visa eligibility, there are many critical functions of the Department of Homeland Security that hinge on a finding of fraud or material misrepresentation. For example, the Act provides that an alien is inadmissible to the United States if that alien seeks to procure, has sought to procure, or has procured a visa, admission, or other immigration benefits by fraud or willfully misrepresenting a material fact. Section 212(a)(6)(C) of the Act, 8 U.S.C. § 1182. Additionally, the regulations state that the willful failure to provide full and truthful information requested by USCIS constitutes a failure to maintain nonimmigrant status. 8 C.F.R. § 214.1(f). For these provisions to be effective, USCIS is required to enter a factual finding of fraud or material misrepresentation into the administrative record. 7 Section 204(b) of the Act states, in pertinent part, that: After an investigation of the facts in each case ... the [Secretary of Homeland Security] shall, if he determines that the facts stated in the petition are true and that the alien ... in behalf of whom the petition is made is an immediate relative specified in section 201(b) or is eligible for preference under subsection (a) or (b) of section 203, approve the petition .... Pursuant to section 204(b) of the Act, USCIS has the authority to issue a determination regarding whether the facts stated in a petition filed pursuant to section 203(b) of the Act are true. Section 212(a)(6)(C) of the Act governs misrepresentation and states the following: "Misrepresentation.(i) In general. - Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible." The Attorney General has held that a misrepresentation made in connection with an application for a visa or other document, or with entry into the United States, is material if either: (1) the alien is excludable on the true facts, or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded. 7 It is important to note that, while it may present the opportunity to enter an administrative finding of fraud, the immigrant visa petition is not the appropriate forum for finding an alien inadmissible. See Matter of 0, 8 I&N Dec. 295 (BrA 1959). Instead, the alien may be found inadmissible at a later date when he or she subsequently applies for admission into the United States or applies for adjustment of status to permanent resident status. See sections 212(a) and 245(a) of the Act, 8 U.S.c. §§ 1182(a) and 1255(a). Nevertheless, the AAO and USCIS have the authority to enter a fraud finding, if during the course of adjudication, the record of proceedings discloses fraud or a material misrepresentation.
Matter of S & B-C-, 9 I&N Dec. at 447. Accordingly, the materiality test has three parts. First, if the record shows that the alien is inadmissible on the true facts, then the misrepresentation is material. Id. at 448. If the foreign national would not be inadmissible on the true facts, then the second and third questions must be addressed. The second question is whether the misrepresentation shut off a line of inquiry relevant to the alien's admissibility. Id. Third, if the relevant line of inquiry has been cut off, then it must be determined whether the inquiry might have resulted in a proper determination that the foreign national should have been excluded. Id. at 449. Furthermore, a finding of misrepresentation may lead to invalidation of the Form ETA 750. See 20 C.F.R. § 656.31(d) regarding labor certification applications involving fraud or willful misrepresentation: Finding of fraud or willful misrepresentation. If as referenced in Sec. 656.30( d), a court, the DHS or the Department of State determines there was fraud or willful misrepresentation involving a labor certification application, the application will be considered to be invalidated, processing is terminated, a notice of the termination and the reason therefore is sent by the Certifying Officer to the employer, attorney/agent as appropriate. Here, as noted above, the evidence of record currently does not support the director's finding that the petitioner failed to follow recruitment procedures. Similarly, there has been an insufficient development of the facts upon which the director can make a determination of fraud or willful misrepresentation in connection with the labor certification process based on the criteria of Matter of S & B-C-, 9 I&N Dec. at 447. Thus, the director's finding of fraud or misrepresentation is withdrawn. In summary, the AAO withdraws the director's conclusion that the petitioner failed to follow DOL recruitment requirements. The AAO also withdraws the petitioner's finding of fraud and material misrepresentation against the petitioner. Nonetheless, the approval of the petition may not be reinstated. As noted above, the petitioner has not established that the beneficiary had the requisite work experience in the job offered before the priority date. Further, beyond the decision of the director, the petitioner has not established that it has the ability to pay the proffered wage. An application or petition that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9 th Cir. 2003); see also Soltane v. DOT, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo basis). With respect to the petitioner's ability to pay, the regulation at 8 C.F.R. § 204.5(g)(2), in pertinent part, provides:
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 Form ETA 750 was accepted for processing by any office within the employment system of the DOL. See 8 C.F.R. § 204.5(d). 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 ETA Form 750 was accepted for processing by the DOL on April 30, 200l. The rate of payor the proffered wage specified on the Form ETA 750 is $13.01 per hour or $23,384.28 per year based on a 39 hour work week. s The record contains an Internal Revenue Service (IRS) Form W -2 for $9,370 in wages paid by the petitioner to the beneficiary in 2003, so for 2003 the petitioner must establish that it had the ability to pay the difference between the proffered wage and the wage paid, or $14,014.28. The petitioner has not established that it employed the beneficiary at the proffered wage during any relevant timeframe including the period from the priority date in April 2001 onwards, other than in 2003 when it employed him for $14,014.28 less than the proffered wage. 9 If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage from the priority date onwards, 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 Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009); Taco Especial v. Napolitano, 696 F. Supp. 2d 873 (E.D. Mich. 20lO), aff'd, No. lO-1517 (6th Cir. filed Nov. lO, 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. Etatos Restaurant Corp. v. Sava, 632 F. Supp. lO49, lO54 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 8 The total hours per week indicated on the approved Form ETA 750 is 39 hours. This is permitted so long as the job opportunity is for a permanent and full-time position. See 20 C.F.R. § 656.3; 656.lO(c)(lO). The DOL Memo indicates that full-time means at least 35 hours or more per week. See Memo, Farmer, Admin. for Reg'!. Mngm't., Div. of Foreign Labor Certification, DOL Field Memo No. 48-94 (May 16, 1994). 9 The record contains three letters from the petitioner, one is undated, the other two are dated July 29,2004 and May lO, 2005, confirming that it employed the beneficiary at a rate of $13.01 per hour. However, going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The AAO further notes that there are several IRS Forms W-2 issued to the beneficiary by other employers in 2003 and 2004.
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.c.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), ajJ'd, 703 F.2d 571 (7th Cir. 1983). Reliance on the petitioner's gross receipts and wage expense is misplaced. Showing that the petitioner's gross receipts 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 USCIS 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 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. Accordingly, 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 Street Donuts 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 at 537 (emphasis added). 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 1960, and to currently employ 3,500 workers. According to the tax returns in the record, the petitioner's fiscal year begins on the 25 th of February. For a C corporation, USCIS considers net income to be the figure shown on Line 28 of the Form 1120, U.S. Corporation Income Tax Return. The petitioner's tax returns demonstrate its net income as follows:
In 2001, the Form 1120 stated net income of $191,180; and In 2002, the Form 1120 stated net income of $1,843,774.
Therefore, for the years 2001 and 2002, the petitioner did have sufficient net income to pay the proffered wage.lO The petitioner has not provided any other evidence to establish its ability to pay the proffered wage from 2003 until the present, as the beneficiary has not yet adjusted to permanent residence status. The AAO concludes that the record as currently constituted does not establish the petitioner's ability to pay and the approval of the petition may not be reinstated. For the above stated reasons, the petitioner does not establish that the beneficiary is qualified to perform the services of the occupation or that the petitioner has the ability to pay the proffered wage as of the priority date. The petition's approval remains revoked for the above stated reasons, with each considered as an independent and alternative basis for revocation. In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.
The AAO further notes that the petitioner has not established that the beneficiary is being sponsored by the franchisor parent company, not the franchisee. 10