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.
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.
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.
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.
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.
Totality of circumstances / overall business magnitude (Sonegawa)
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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.
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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.
Net current assets sufficient to pay proffered wage
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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.
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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.
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.
Beneficiary meets labor certification educational and experience requirements
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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.
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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.
Net current assets sufficient to cover proffered wage shortfall
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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.
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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.