The Petitioner had two other pending I-140 petitions and must demonstrate ability to pay the combined proffered wages of all three beneficiaries. Even crediting all 1099-MISC payments and the tax return figures, the Petitioner could not demonstrate ability to pay the combined proffered wages in 2006.
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The Petitioner had two other pending I-140 petitions and must demonstrate ability to pay the combined proffered wages of all three beneficiaries. Even crediting all 1099-MISC payments and the tax return figures, the Petitioner could not demonstrate ability to pay the combined proffered wages in 2006.
Intent to employ pursuant to labor certification terms
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The labor certification required the senior programmer analyst to direct other programmers and analysts and train users, but the Petitioner's employee count had declined to two, leaving no one to direct or train, thus undermining the bona fides of the job offer.
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The labor certification required the senior programmer analyst to direct other programmers and analysts and train users, but the Petitioner's employee count had declined to two, leaving no one to direct or train, thus undermining the bona fides of the job offer.
Net income and net current assets from tax returns
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Tax returns from 2011-2013 were unreliable because their 'other current assets' consisted of unexplained intra-company loans the Petitioner could not have made given its reported asset levels, casting doubt on returns for other years as well. The amended 2006 return was not verified as submitted to the IRS and its stated net current assets also derived from an unsupported loan to the president/sole shareholder.
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Tax returns from 2011-2013 were unreliable because their 'other current assets' consisted of unexplained intra-company loans the Petitioner could not have made given its reported asset levels, casting doubt on returns for other years as well. The amended 2006 return was not verified as submitted to the IRS and its stated net current assets also derived from an unsupported loan to the president/sole shareholder.
Wages paid via W-2 only met the proffered wage in 2011. Forms 1099-MISC were inconsistent and unreliable as additional compensation evidence due to conflicting descriptions of the payments and inconsistencies with the Beneficiary's own tax returns.
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Wages paid via W-2 only met the proffered wage in 2011. Forms 1099-MISC were inconsistent and unreliable as additional compensation evidence due to conflicting descriptions of the payments and inconsistencies with the Beneficiary's own tax returns.
Overall magnitude of business activities (Sonegawa)
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Unlike in Sonegawa, the record showed declining gross revenues and employee count (from seven employees in 2007 to two in 2011), no evidence of uncharacteristic expenditures or outstanding reputation in its field, and no indication the Beneficiary would replace a former employee or outsourced service.
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Unlike in Sonegawa, the record showed declining gross revenues and employee count (from seven employees in 2007 to two in 2011), no evidence of uncharacteristic expenditures or outstanding reputation in its field, and no indication the Beneficiary would replace a former employee or outsourced service.
Ability to pay combined proffered wages of multiple beneficiaries
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AAO found the record at the time of approval insufficient to demonstrate ability to pay the combined wages of 20+ pending beneficiaries; remanded for further development.
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AAO found the record at the time of approval insufficient to demonstrate ability to pay the combined wages of 20+ pending beneficiaries; remanded for further development.
AAO concluded the Director failed to consider willfulness or the signing officer's explanation, so the labor certification's invalidation could not stand.
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AAO concluded the Director failed to consider willfulness or the signing officer's explanation, so the labor certification's invalidation could not stand.
AAO found inconsistencies between the credentials evaluation and the record (e.g., pre-degree examinations rather than O/A level exams), and relied on EDGE to conclude the Indian Master's equates only to a U.S. Bachelor's degree.
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AAO found inconsistencies between the credentials evaluation and the record (e.g., pre-degree examinations rather than O/A level exams), and relied on EDGE to conclude the Indian Master's equates only to a U.S. Bachelor's degree.
AAO agreed the misrepresentation was material based on Silver Dragon and a DOL FAQ stating that failure to disclose familial relationships under C.9 is a material misrepresentation.
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AAO agreed the misrepresentation was material based on Silver Dragon and a DOL FAQ stating that failure to disclose familial relationships under C.9 is a material misrepresentation.
AAO found the Petitioner's disclosure of only twelve beneficiaries was incomplete, given USCIS records showing at least 29 I-140 filings since 2011, and concluded the Petitioner had not established continuing ability to pay the combined proffered wages.
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AAO found the Petitioner's disclosure of only twelve beneficiaries was incomplete, given USCIS records showing at least 29 I-140 filings since 2011, and concluded the Petitioner had not established continuing ability to pay the combined proffered wages.