AAO affirmed the director's denial but withdrew reliance on pre-priority-date 2008 documents. The 2009 audited net excess of $10,193 was insufficient; the 2010 compiled statements were not audited and therefore unreliable; the 2011 net excess, while nominally sufficient, could not cover the combined proffered wages of three simultaneously pending petitions.…
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AAO affirmed the director's denial but withdrew reliance on pre-priority-date 2008 documents. The 2009 audited net excess of $10,193 was insufficient; the 2010 compiled statements were not audited and therefore unreliable; the 2011 net excess, while nominally sufficient, could not cover the combined proffered wages of three simultaneously pending petitions. Current assets labeled 'retirement savings' were not shown to be freely available, and bank statements are not a permitted form of evidence under the regulation.
Wages actually paid equal or exceed proffered wage
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The beneficiary was paid only $65,654.70 in 2011 and $3,450.09 in early 2012, both well below the $109,595.20 proffered wage. Additionally, three checks submitted do not qualify as pay vouchers and there was no explanation for missing compensation records for January and February 2012.
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The beneficiary was paid only $65,654.70 in 2011 and $3,450.09 in early 2012, both well below the $109,595.20 proffered wage. Additionally, three checks submitted do not qualify as pay vouchers and there was no explanation for missing compensation records for January and February 2012.
The labor certification required a U.S. baccalaureate degree in Electronics or Mechanical Engineering and explicitly excluded foreign educational equivalents. The beneficiary holds a B.S. in Physics and M.S. in Electronics Science from a foreign institution, not a qualifying U.S. degree, so the requirement is not met.
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The labor certification required a U.S. baccalaureate degree in Electronics or Mechanical Engineering and explicitly excluded foreign educational equivalents. The beneficiary holds a B.S. in Physics and M.S. in Electronics Science from a foreign institution, not a qualifying U.S. degree, so the requirement is not met.
Unaudited financial statements and bank records as alternative evidence
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The financial statement submitted on appeal was reviewed rather than audited, making it unpersuasive under 8 C.F.R. § 204.5(g)(2). Bank statements are not among the enumerated types of required evidence, and the checking account balance fluctuated below the proffered wage and covered only four months, failing to show sustainable ability to pay.
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The financial statement submitted on appeal was reviewed rather than audited, making it unpersuasive under 8 C.F.R. § 204.5(g)(2). Bank statements are not among the enumerated types of required evidence, and the checking account balance fluctuated below the proffered wage and covered only four months, failing to show sustainable ability to pay.
Net income sufficient to cover shortfall between wages paid and proffered wage
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The 2011 Form 1065 showed a net loss of $165,906, which is plainly insufficient to cover the shortfall between wages paid and the proffered wage. The tax return was also incomplete, missing an attached statement noted on the form.
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The 2011 Form 1065 showed a net loss of $165,906, which is plainly insufficient to cover the shortfall between wages paid and the proffered wage. The tax return was also incomplete, missing an attached statement noted on the form.
The 2011 Form 1065 showed net current assets of only $12,466, which combined with wages paid of $65,554.70 is far less than the proffered wage of $109,595.20.
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The 2011 Form 1065 showed net current assets of only $12,466, which combined with wages paid of $65,554.70 is far less than the proffered wage of $109,595.20.
petition accompanied by valid labor certification pertaining to the proffered position
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AAO raised this issue beyond the director's decision, finding a mismatch between the worksite listed on the ETA Form 9089 and the 'unanticipated locations' description on the Form I-140.
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AAO raised this issue beyond the director's decision, finding a mismatch between the worksite listed on the ETA Form 9089 and the 'unanticipated locations' description on the Form I-140.
beneficiary possesses minimum education required by labor certification (master's degree or foreign equivalent)
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AAO relied on EDGE, finding the Indian three-year B.Sc. comparable to two-to-three years of U.S. university study and the Indian M.Sc. comparable only to a U.S. bachelor's degree. The post-graduate diploma did not raise the equivalency because no evidence showed it was AICTE-approved with a three-year bachelor's entrance requirement. The credential evaluations were unpersuasive and unsupported.
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AAO relied on EDGE, finding the Indian three-year B.Sc. comparable to two-to-three years of U.S. university study and the Indian M.Sc. comparable only to a U.S. bachelor's degree. The post-graduate diploma did not raise the equivalency because no evidence showed it was AICTE-approved with a three-year bachelor's entrance requirement. The credential evaluations were unpersuasive and unsupported.
The AAO withdrew the director's favorable determination because most evidence postdated the priority date. Pre-priority-date evidence (two books and a dissertation) was insufficient: the books lacked evidence of their publication status, the dissertation bore no indicia of publication in a qualifying outlet, and a single conference presentation could not satisfy the requirement for 'articles' (plural).
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The AAO withdrew the director's favorable determination because most evidence postdated the priority date. Pre-priority-date evidence (two books and a dissertation) was insufficient: the books lacked evidence of their publication status, the dissertation bore no indicia of publication in a qualifying outlet, and a single conference presentation could not satisfy the requirement for 'articles' (plural).
The only pre-priority-date evidence was a general staff contract with no comparative salary data. Post-priority-date evidence could not be considered. Wikipedia information was found unreliable and also postdated the priority date. Thus the petitioner failed to show a high salary relative to others in the field.
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The only pre-priority-date evidence was a general staff contract with no comparative salary data. Post-priority-date evidence could not be considered. Wikipedia information was found unreliable and also postdated the priority date. Thus the petitioner failed to show a high salary relative to others in the field.