AAO corrected the director's net income figure to $26,683 (from an incorrect $30,543), but found this still insufficient to pay the proffered wage of $69,960. Net current assets of $27,544 were also insufficient. The subcontractor-replacement argument was rejected because the Letter of Support did not verify subcontractors' full-time employment or that they performed the same duties as the proffered position.…
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AAO corrected the director's net income figure to $26,683 (from an incorrect $30,543), but found this still insufficient to pay the proffered wage of $69,960. Net current assets of $27,544 were also insufficient. The subcontractor-replacement argument was rejected because the Letter of Support did not verify subcontractors' full-time employment or that they performed the same duties as the proffered position. The projected revenue increase argument was rejected as speculative and contrary to Matter of Great Wall. No Sonegawa-type extraordinary circumstances were established.
Ability to pay via wages actually paid to beneficiary
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The beneficiary's W-2 wages ranged from $45,553 to $69,876, all below the proffered wage of $75,859, so this method failed to establish ability to pay.
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The beneficiary's W-2 wages ranged from $45,553 to $69,876, all below the proffered wage of $75,859, so this method failed to establish ability to pay.
Ability to pay via overall business magnitude (Sonegawa)
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There was no evidence the petitioner is a successful, well-known entity with established historical growth, no unusual circumstances paralleling Sonegawa, and no evidence that 2004–2006 were uncharacteristically unprofitable years. Subcontractor wage and shareholder bonus/pension arguments were rejected as unsupported and legally insufficient.
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There was no evidence the petitioner is a successful, well-known entity with established historical growth, no unusual circumstances paralleling Sonegawa, and no evidence that 2004–2006 were uncharacteristically unprofitable years. Subcontractor wage and shareholder bonus/pension arguments were rejected as unsupported and legally insufficient.
Net income was negative in all three available years (2004: -$6,139; 2005: -$35,884; 2006: -$9,793). The 2007 return was not in the record, and counsel's unsupported assertion about 2007 taxable income carries no evidentiary weight. Gross income arguments were also rejected.
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Net income was negative in all three available years (2004: -$6,139; 2005: -$35,884; 2006: -$9,793). The 2007 return was not in the record, and counsel's unsupported assertion about 2007 taxable income carries no evidentiary weight. Gross income arguments were also rejected.
The petitioner's end-of-year net current assets were negative in all three relevant years (-$59,764 in 2004, -$65,728 in 2005, -$31,710 in 2006), making them insufficient to cover the proffered wage.
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The petitioner's end-of-year net current assets were negative in all three relevant years (-$59,764 in 2004, -$65,728 in 2005, -$31,710 in 2006), making them insufficient to cover the proffered wage.
Ability to pay via wages actually paid to beneficiary
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The beneficiary's gross pay in 2005 was $20,392.75, well below the $75,000 proffered wage, so the petitioner could not establish ability to pay through actual wages paid in the priority date year.
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The beneficiary's gross pay in 2005 was $20,392.75, well below the $75,000 proffered wage, so the petitioner could not establish ability to pay through actual wages paid in the priority date year.
The petitioner's net income in 2005 was only $658. Counsel's argument to add back subcontracting expenses was rejected because the beneficiary was already employed full-time in 2005 in addition to, not as a replacement for, the subcontractors. AAO also confirmed it does not add back depreciation per established judicial precedent.
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The petitioner's net income in 2005 was only $658. Counsel's argument to add back subcontracting expenses was rejected because the beneficiary was already employed full-time in 2005 in addition to, not as a replacement for, the subcontractors. AAO also confirmed it does not add back depreciation per established judicial precedent.
The AAO raised the Sonegawa totality-of-circumstances analysis sua sponte and found it did not favor the petitioner: the business was founded in 1990 but still had only eight employees, gross receipts declined 20% from 2006 to 2007, and net income across 2005–2007 totaled only $2,980.
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The AAO raised the Sonegawa totality-of-circumstances analysis sua sponte and found it did not favor the petitioner: the business was founded in 1990 but still had only eight employees, gross receipts declined 20% from 2006 to 2007, and net income across 2005–2007 totaled only $2,980.
The petitioner's 2005 net current assets were only $4,119 (cash of $6,769 minus $2,650 in other current liabilities), far below the $75,000 proffered wage.
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The petitioner's 2005 net current assets were only $4,119 (cash of $6,769 minus $2,650 in other current liabilities), far below the $75,000 proffered wage.
Five years of qualifying experience per labor certification requirements
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The AAO found, beyond the director's decision, that employment letters for the 2000–2004 period appeared to be from contractors rather than employers, rendering them unacceptable under 8 C.F.R. §§ 204.5(g)(1) and 204.5(l)(3)(ii)(A), and leaving the record without proof of the required five years of qualifying experience.
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The AAO found, beyond the director's decision, that employment letters for the 2000–2004 period appeared to be from contractors rather than employers, rendering them unacceptable under 8 C.F.R. §§ 204.5(g)(1) and 204.5(l)(3)(ii)(A), and leaving the record without proof of the required five years of qualifying experience.