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The AAO issued an RFE for tax returns, audited financial statements, and W-2/1099 forms for 2009–2011. The petitioner failed to respond within 45 days, and counsel confirmed inability to obtain the information. AAO dismissed the appeal on grounds of failure to respond to a material evidentiary request.
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The AAO issued an RFE for tax returns, audited financial statements, and W-2/1099 forms for 2009–2011. The petitioner failed to respond within 45 days, and counsel confirmed inability to obtain the information. AAO dismissed the appeal on grounds of failure to respond to a material evidentiary request.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_05_B5203; source_row=14736 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
AAO agreed the alternative requirements stated on the ETA Form 9089 (no degree, no work experience) are facially insufficient for EB-2 classification. AAO explained that Kellogg language does not transform inadequate alternative requirements into qualifying ones — the language is interpreted to mean any combination equal to or greater than the stated specifics, but those stated specifics themselves fall below the advanced d…
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AAO agreed the alternative requirements stated on the ETA Form 9089 (no degree, no work experience) are facially insufficient for EB-2 classification. AAO explained that Kellogg language does not transform inadequate alternative requirements into qualifying ones — the language is interpreted to mean any combination equal to or greater than the stated specifics, but those stated specifics themselves fall below the advanced degree threshold.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_09_B5203; source_row=14742 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
AAO found USCIS must read the labor certification as written and may make a de novo determination of beneficiary qualifications. The labor certification required an MBA or foreign equivalent; the beneficiary's degree from an unaccredited institution does not qualify and no foreign equivalent was shown.
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AAO found USCIS must read the labor certification as written and may make a de novo determination of beneficiary qualifications. The labor certification required an MBA or foreign equivalent; the beneficiary's degree from an unaccredited institution does not qualify and no foreign equivalent was shown.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_01_B5203; source_row=14730 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
The petitioner's 2007 Form 1120S (Schedule K) showed net income of $37,903, which was below the proffered annual wage of $50,460.80. Counsel's argument for proration was rejected because no monthly income statements or pay stubs covering only the post-priority-date period were submitted.
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The petitioner's 2007 Form 1120S (Schedule K) showed net income of $37,903, which was below the proffered annual wage of $50,460.80. Counsel's argument for proration was rejected because no monthly income statements or pay stubs covering only the post-priority-date period were submitted.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_08_B5203; source_row=14739 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
The beneficiary did not claim to have worked for the petitioner on the ETA Form 9089, the director requested W-2s or pay stubs and none were provided, and no such evidence was submitted on appeal either.
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The beneficiary did not claim to have worked for the petitioner on the ETA Form 9089, the director requested W-2s or pay stubs and none were provided, and no such evidence was submitted on appeal either.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_08_B5203; source_row=14738 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
Totality of circumstances / overall business magnitude (Sonegawa)
Why AAO was not persuaded
The petitioner had been in business only approximately three years, employed only five workers, paid total wages of only $3,000 (about 6% of the proffered wage), paid officer compensation of only $21,000, and provided no evidence of historical growth, exceptional expenditures, or industry reputation that would support a finding of ability to pay.
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The petitioner had been in business only approximately three years, employed only five workers, paid total wages of only $3,000 (about 6% of the proffered wage), paid officer compensation of only $21,000, and provided no evidence of historical growth, exceptional expenditures, or industry reputation that would support a finding of ability to pay.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_08_B5203; source_row=14741 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
Net current assets sufficient to pay proffered wage
Why AAO was not persuaded
The petitioner's 2007 Form 1120S Schedule L showed net current assets of $24,829, which was insufficient to cover the proffered annual wage of $50,460.80.
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The petitioner's 2007 Form 1120S Schedule L showed net current assets of $24,829, which was insufficient to cover the proffered annual wage of $50,460.80.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_08_B5203; source_row=14740 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
AAO independently analyzed the labor certification's plain language, which required a master's degree with no alternate combination, and concluded the beneficiary's unaccredited MBA-F satisfies neither the U.S. master's degree nor the foreign equivalent requirement.
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AAO independently analyzed the labor certification's plain language, which required a master's degree with no alternate combination, and concluded the beneficiary's unaccredited MBA-F satisfies neither the U.S. master's degree nor the foreign equivalent requirement.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_03_B5203; source_row=14735 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
Beneficiary meets labor certification educational and experience requirements
Why AAO was not persuaded
The labor certification requires a master's degree in business administration with no experience substitution permitted. The beneficiary has neither a qualifying MBA nor a foreign equivalent master's degree. Work experience listings on the labor certification also conflict with documentation submitted in the record.
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The labor certification requires a master's degree in business administration with no experience substitution permitted. The beneficiary has neither a qualifying MBA nor a foreign equivalent master's degree. Work experience listings on the labor certification also conflict with documentation submitted in the record.
Exact record locator: findings_long.parquet filename_stem=2012-06-22_02_B5203; source_row=14733 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c
Net current assets sufficient to cover proffered wage shortfall
Why AAO was not persuaded
Net current assets were $97,663 (2007), $66,911 (2008), $7,841 (2009), and $53,484 (2010). These were insufficient to cover the proffered wage shortfall in 2008, 2009, and 2010.
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Net current assets were $97,663 (2007), $66,911 (2008), $7,841 (2009), and $53,484 (2010). These were insufficient to cover the proffered wage shortfall in 2008, 2009, and 2010.
Exact record locator: findings_long.parquet filename_stem=2012-06-21_03_B5203; source_row=14716 Revision: 081d2cac29dcadfec88fdd675d7a0c4294d72b3c