dismissed EB-2 Case: Software Engineering

U.S.Citizenship
and Immigration
Services
PUBLIC COpy
u.s. Department ofliomeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington , DC 20529
WAC-04-119-53285
Office: CALIFORNIA SERVICE CENTER Date: ~ 2 8 2007
In re: Petitioner :
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree
or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality
Act, 8 U .S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~2t~obert P. Wiemann, Chief
r -Administrative Appeals Office
www.uscls.gov
Page 2
DISCUSSION: The Director, California Service Center, denied the immigrant visa petition , which
is now before the Administrative Appeals Office (AAO) on appeal .' The appeal will be dismissed.
The petitioner is a systems integration and software development company . It seeks to employ the
beneficiary' permanently in the United States as a software engineer pursuant to section 203(b)(2) of the
Immigration and Nationality Act (the Act), 8 U .S.C. § 1153(b)(2). In pertinent part, section 203(b)(2)
of the Act provides immigrant classification to members of the professions holding advanced degrees or
their equivalent and whose services are sought by an employer in the United States. As required by
statute, the petition was accompanied by certification from the Department of Labor. The director
determined that the petitioner had not established that it had offered the beneficiary a permanent
position or even that it had an employer-employee relationship with the beneficiary .
On appeal , the petitioner submits a brief and additional evidence. The petitioner asserts that
Citizenship and Immigration Services (CIS) must properly weigh both favorable and unfavorable
factors. All of the cases on which the petitioner relies, however, involve discretionary relief such as
suspension of deportation pursuant to former section 244 of the Act. Not one of the cases cited by
the petitioner involves an alien seeking benefits under section 203(b)(2) of the Act or any other
employment-based visa category.' Section 291 of the Act provides, in pertinent part:
Whenever any person makes application for a visa or any other document required for
entry, or makes application for admission , or otherwise attempts to enter the United
States, the burden of proof shall be upon such person to establish that he is eligible to
receive such visa or such document, or is not inadmissible under any provision of this
Act, and, if an alien, that he is entitled to the nonimmigrant , immigrant, special
immigrant, immediate relative, or refugee status claimed, as the case may be.
The burden is on the alien to establish eligibility "to the satisfaction " of the adjudicating officer.
Section 291 of the Act, 8 U.S.c. § 1361. This burden is confirmed in Matter ofSao Hoo , 11 I&N Dec.
151, 152 (BIA 1965) and Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966). While the cases
I The petitioner initially filed the Form 1-290B, Notice of Appeal, with no accompanying brief or evidence .
The petitioner then supplemented the Form 1-290B with a brief and additional evidence. The brief was
addressed to the AAO and lists the receipt number for the Form 1-290B as the "Appeal case # ." The brief
uses the word "appeal" four times. Thus , while the first two sections of the brief explain how the filing meets
the requirements of a motion to reopen , which it did not at the time of filing (there is no provision that would
allow a petitioner to supplement a motion to reopen , compare 8 C.F.R. § 103.3(a)(2)(vii», we will consider
the filing an appeal.
2 The beneficiary in this matter is substituted for the original benefic iary listed on the alien employment
certification pursuant to Kooritzky v. Reich , 17 F.3d 1509 (D.C. Cir . 1994)(invalidating the portion of an
interim final rule , 56 Fed. Reg. 54925, 54930 (Oct. 23, 1991) , which eliminated substitution of labor
certification beneficiaries pursuant to 20 C.F.R. § 656.30(c)(1) and (2».
3 Villena v. INS, 622 F . 2d 1352 (9th Cir. 1980) , involved an alien who had previously petitioned for an
employment-based visa, but the matter before the Ninth Circuit was an application for suspension of
deportation. Id. at 1361.
cited by the petitioner are not relevant and the burden of proof remains on the petitioner, we will
considerall of the evidencesubmittedin detail below.
Relating to the merits, the petitioner asserts that the entity that contracted out the beneficiary's
services was the petitioner's wholly owned subsidiary and that the beneficiary reports to the
petitioner. For the reasons discussed below, the evidence is inconsistent as to the relationship
between the petitioner and the entity that contracted out the beneficiary's services. For this reason
and the reasons discussed below, the petitioner has not overcome thedirector's bases of denial.
Section 204(a)(I)(F) provides:
Any employer desiring and intending to employ within the United States an alien
entitled to classification under section ... 203(b)(2) ... may file a petition with the
Attorney General for such classification.
On August 1, 2006, the director requested evidence that the petitioner had offered the beneficiary a
job. In response, the petitioner submitted a one-year employment contract between the petitioner
and the beneficiary dated August 5, 2002; a contract between Datamethods and EAPT Solutions,
Inc. (EAPT) whereby Datamethods agreed to provide staffing services for EAPT's client, Citigroup;
and a statement of work whereby Datamethods and EAPT agreed that the beneficiary would provide
consulting services for Citigroup for six months. The petitioner also submitted Forms W-2 issued by
the petitioner to the beneficiary for2003,2004 and 2005.
On November 1, 2006, the director denied the petition. In the denial, the director noted the
following: (1) the 2002 contract between the petitioner and the beneficiary provided that the
beneficiary's length of employment was for only one year and, as such, could not demonstrate
permanent full-time work; (2) the statement of work between Datamethods and EAPT provided for
only six months of work and (3) the petitioner failed to identify where the beneficiary would be
employed, but rather indicated that the beneficiary would work in-house, unless he was working on a
client project, which the petitioner indicated could be anywhere in the United States. Finally, the
director concluded that the petitioner had failed to provide a contract between Datamethods and the
ultimate client, Citigroup, relating to the beneficiary's outsourcing. As a result, the director could
not determine the beneficiary's terms and conditions of employment related to the Citigroup
assignment.
The director concluded that the petitioner did not exercise direct control over the beneficiary and
could not be considered the actual employer. The director noted that the petitioner would need to
provide its complete contract with Citigroup to prove otherwise.
On appeal, the petitioner asserts that it was unable to obtain the contract between Datamethods and
the beneficiary because the contract is confidential. The petitioner further asserts that Datamethods
is a wholly owned subsidiary of the petitioner. The petitioner submits its 2005 Internal Revenue
Service (IRS) Form 1120 U.S. Corporation Income Tax Return, indicating that the petitioner is a
wholly owned subsidiary of Bitech International and that the petitioner is "affiliated" with
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Datamethods. Specifically, the petitioner (1) answered "yes" to whether it owned 50 percent or
more of a domestic corporation on Schedule K, line 3; (2) listed Datamethods as its subsidiary
corporation on IRS Form 851 but failed to complete its stock holding information on Part II of that
form; (3) specified that Bitech International, LLC owns 100 percent of the petitioner on Statement 5
to IRS Form 5472 and specified that Datamethods is an "affiliated group" member on Statement 6 to
IRS Form 5472. On the petitioner's previous IRS Form 1120 tax returns, however, the petitioner
indicated that it was owned by two individuals and, in response to line 3, Schedule K, that it did not
own at least 50 percent of a domestic corporation. As will be discussed in more detail below, the
petitioner has not resolved these inconsistencies pursuant to Matter ofHo, 19 I&N Dec. 582, 591-92
(BIA 1988).
The first issue is whether or not the petitioner can be considered the beneficiary's employer. The
regulation at 20 C.F.R. § 656.3, as in effect when the priority date in this matter was established,
provides, in pertinent part:
Employment means permanent full-time work by an employee for an employer other
than oneself. For purposes of this definition an investor is not an employee.
* * *
Employer means a person, association, firm, or a corporation which currently has a
location within the United States to which U.S. workers may be referred for
employment, and which proposes to employ a full-time worker at a place within the
United States or the authorized representative of such a person, association, firm, or
corporation.
In Matter ofSmith, 12 I&N Dec. 772 (Dist. Dir. 1968), the petitioner, a staffing service, provided a
continuous supply of secretaries to third-party clients. The staffing service guaranteed full-time
permanent employment to its personnel. /d. at 773. The District Director determined in that matter
that the staffing service, rather than its clients, was the beneficiary's actual employer. Id. To reach
this conclusion, the District Director looked to the fact that the staffing service would make
contributions to the beneficiary's social security, worker's compensation, and unemployment
insurance programs; withhold federal and state income taxes; and provide other benefits such as
group insurance and a paid vacation. Id. at 773.
In Matter of Ord, 18 I&N Dec. 285 (Regl, Commr. 1982), a firm sought to utilize the H-1B
nonimmigrant visa program and temporarily outsource its aeronautical engineers to third-party
clients on a continuing basis with one-year contracts. The Regional Commissioner stated:
The petitioner in this instance is not an employment agency which only acts as broker
in arranging employment between an employer and a job seeker. An employment
placement agency acting as a broker does not qualify as the employer of the job
seeker.
Page 5
Id. at 286. See also Matter ofArtee, 18 I&N Dec. 366 (Commr. 1982).
Given the language in the precedent decisions discussed above, there are factors to consider beyond
who pays the beneficiary's wages.
The petitioner submitted a contract between EAPT, based in Edison, New Jersey, and Datamethods,
based in Texas." The contract provides the following, in pertinent part:
1. SCOPE The terms of this agreement apply in a situation where Contractor agrees to
provide programming, systems analysis, engineering, technical writing or other
specialized servicesas an independent contractor directly to the third party user client
("client") who has requested EAPT to locate temporary staffing for the client's
project according to the training, skills, abilities and experience required by the client.
EAPT agrees to examine Contractor's background for providing services to client, to
refer Contractor to the client for further evaluation and possible retention of
Contractor's services, to negotiate a rate for those services, and to otherwise perform
as stated herein.
2. TERM OF AGREEMENT . . . Prior to the commencement of any services, EAPT
and Contractor will execute a Purchase Order ... which shall be considered part of
this Agreement and binding upon both parties.
* * *
4. NON-SOLICITATION AND NON-COMPETITION
* * *
C. For the purposes of this paragraph 4, the term "Client" includes Citigroup
Technology Services, or clients of the client for whom Supplier's personnel
preformed or are, proposed by EAPT Solutions Inc[.] to perform services under this
Agreement.
6. PAYMENT FOR SERVICES Payment for services will be made in the corporate
or business name of contractor on the periodic basis set forth in the Purchase Order
and up to the amount authorized in that Purchase Order for the client project. No
other compensation in any form, including benefits, will be provided by EAPT or
anyone else. For billing and payment purposes, Contractor shall maintain records of
the hours that services have been performed, have a client representative verify those
hours by signing the records, and submit to EAPT those records for the amount due to
4 The address for Datamethods listed at the beginning of the contract is 5605 N. MacArthur Blvd., 10th Floor
in Irving, Texas.
Page 6
Contractor for the hours worked and verified. Contractor will also invoice EAPT
only for the hours covered by such records.
* * *
9. CONDUCT, INDEPENDENT STATUS, AND BENEFITS
Contractor is:
A valid corporation existing under the laws of the State of Texas doing
business with the corporate name or business name of Data Methods, Inc. and
certify [sic] that its federal employer identification number (EIN) is 20­
2629618.
The parties to this Agreement agree that the relationship created by this agreement is
that of broker-independent contractor. Contractor agrees and has advised its
personnel that Contractor and its personnel are not employee(s) ofEAPT or the client
and are not entitled to (and also hereby waive) any benefits provided or rights
guaranteed by EAPT or the client. . . . It is understood and agreed that since the
Contractor is an independent contractor, EAPT will make no deductions from fees
paid to Contractor for any federal or state taxes or FICA, and EAPT and the client
have no obligation to provide Worker's Compensation coverage for Contractor or to
make any premium "overtime" payments at any rate other than the normal rate agreed
to in the Purchase Order. It shall be the Contractor's responsibility to provide
Worker's Compensation and, if applicable, pay any premium "overtime" rate, for its
employees who work on the project covered by this Agreement ....
16. MISCELLANEOUS
*
*
*
*
*
*
Contractor agrees that all of its personnel working on client projects covered by this
Agreement shall sign an "Employee Consent" form .., agreeing to the terms of
paragraphs 4, 8, 9, and 12 of this Agreement. The Employee Consent form will be
delivered to EAPT before such personnel begin work under any Purchase Order.
The Director of Operations for EAPT and the Vice President for Datamethods signed the agreement
on September 15,2005. Attached to the document was a "Statement of Work" signed by EAPT and
Datamethods, which provided that the beneficiary would work for Citigroup on a six-month project.
The rate of pay was crossed out. The "pay terms" were based on monthly invoice. The "scope and
duration" provided that the "[c]onsultant shall provide services as directed by the client."
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The Record of Proceeding also contains the one-year 2002 Employment Agreement between the
petitioner and the beneficiary, which provides, in pertinent part (section 2(e»:
Term. The term of this Agreement and the term of employment ... shall commence on
the date herein below signed, and shall continue for one (1) year from the date on which
Employee first begins working full-time for the Company, unless sooner terminated....
The Employment Term shall be automatically extended, following the expiration of the
initial one year term, for successive one (I)-month periods (thirty calendar days) until and
unless either party hereto gives the other such party written Notice.
The EAPT and Datamethods contract is not the final contract; rather the beneficiary's work would
be determined by a contract signed by Citigroup, which the petitioner did not provide.
From the Datamethods/EAPT contract provided, it is not clear that the petitioner would be the actual
employer. Datamethods, which is listed in the contract as being based in Texas and having a
separate tax identification number than the petitioner, is the actual employer. The petitioner's
assertion on appeal, that Datamethods is a wholly owned subsidiary of the petitioner, is not
consistently supported in the record. As stated above, while the 2005 tax return submitted on appeal
lists Datamethods as an affiliated corporation based at the same location in California as the
petitioner, Datamethods is not listed on the petitioner's earlier tax returns, submitted previously, and
the Datamethods/EAPT contract provides a Texas address for Datamethods. The record contains no
evidence that Datamethods is authorized to operate in California. As stated above, it is incumbent
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence.
Matter ofHo, 19 I&N Dec. at 591-92. Any attempt to explain or reconcile such inconsistencies will
not suffice unless the petitioner submits competent objective evidence pointing to where the truth
lies. Id. The petitioner has not resolved the inconsistencies between its 2005 tax return and the
earlier returns.
Even if Datamethods is a wholly owned subsidiary of the petitioner, and the record is inconsistent on
this matter, a corporation is a separate and distinct legal entity from its owners or stockholders. See
Matter ofM, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter ofAphrodite Investments Limited, 17
I&N Dec. 530, 531 (Commr. 1980); and Matter of Tessel, 17 I&N Dec. 631, 633 (Act. Assoc.
Commr. 1980). Thus, the petitioner would still not be the employer. This conclusion is reinforced
by the petitioner's admitted inability to obtain a copy of the ultimate contract with Citigroup
regarding the beneficiary's employment at Citigroup.
In light of the above, we concur with the director that the employment arrangement is too attenuated
to consider the petitioner the actual employer. While the petitioner need only be offering permanent
full-time employment for the future, doubt cast on any aspect of the petitioner's proof may, of
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in
support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. The inconsistencies between the
Forms W-2 issued by the petitioner, the 2002 contract between the petitioner and the beneficiary, the
DatamethodsiEAPT contract and the tax returns regarding Datamethods' affiliation with the
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petitioner have not been resolved. Thus, the petitioner's credibility is reduced and its affirmations
that it had offered the beneficiary a position as ofthe priority date have little evidentiary value.
Moreover, on appeal, the petitioner, through its associate general counsel, asserts that the director
"did not take into consideration that obtaining the contract between EAPT Solutions and Citigroup
was confidential and privileged information that only EAPT Solutions and Citigroup are privy to."
The petitioner further asserts that the petitioner tried to obtain a copy of the contract between EAPT
and Citigroup, but that obtaining a copy of the agreement was difficult and unusual as companies
will often not release such contracts since much of the information is "confidential in nature." The
petitioner concludes that it does have a permanent position for the beneficiary, and that it provided
evidence that the beneficiary "would ultimately be placed at Citigroup performing software
engineering type work." Thus, despite the new contract between the petitioner and the beneficiary
submitted on appeal, the petitioner implies that not only has the beneficiary worked for Citigroup as
placed through EAPT by Datamethods in the past, but that the beneficiary will continue to work at
Citigroup in New Jersey.
The second issue is whether the offered position falls within the geographic location specified on the
Form ETA 750. As stated above, the petitioner asserts on appeal that the beneficiary will continue
to work in New Jersey. The petitioner provided a copy of an electronic-mail notice relating to the
beneficiary's placement dated December 21, 2006. The notice provides:
This is to verify that Citigroup Inc., located at
_ .. currently has [the beneficiary] on a full-time project as a consultant
Computer Engineer since September 26, 2005. [The beneficiary] is on assignment
with Citigroup through a contract with EAPT Solutions, Inc.
A labor certification for a specific job offer is valid only for the particular job opportunity and for the.
area of intended employment stated on the Form ETA 750. 20 C.F.R. § 656.30(c)(2).
The labor certification is valid for the beneficiary's employment in California, the listed work
location. While the labor certification contemplates other locations in Northern California, the labor
certification does not contemplate "unknown" locations throughout the U.S., or employment in New
Jersey. EAPT is based in New Jersey. The petitioner's electronic-mail notice provides that the
beneficiary has been working in New Jersey for Citigroup and the petitioner strongly implies that the
beneficiary will continue working for Citigroup. Therefore, the beneficiary's employment will not
occur at the listed location on the certified ETA 750.
The petitioner directly admits that it has employed and intends to employ the beneficiary outside the
terms of the labor certification through placement in New Jersey. Such employment calls into
question the validity of the alien employment certification. See 20 C.F.R. § 656.30(c)(2); see also
Matter ofSunoco Energy Development Company, 17 I&N Dec. 283, 284 (Regl. Commr. 1979).
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Based on the foregoing, the petitioner has failed to overcome the reasons for the petition's denial.
Specifically, the petitioner has not, with consistent and credible evidence, demonstrated that it
intends to employ the beneficiary full-time in accordance with the terms of the labor certification.
Beyond the decision of the director, our review of electronic records relating to petitions filed by the
petitioner raises issues of the petitioner's ability to pay the proffered wage. An application or
petition that fails to comply with the technical requirements of the law may be denied by the AAO
even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (RD. Cal. 2001), aff'd. 345
F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1 989)(noting that the
AAO reviews appeals on a de novo basis).
The regulation 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any petition filed by or for an
employment-based immigrant which requires an offer of employment must be
accompanied by evidence that the prospective United States employer has the ability
to pay the proffered wage. The petitioner must demonstrate this ability at the time the
priority date is established and continuing until the beneficiary obtains lawful
permanent residence. Evidence of this ability shall be either in the form of copies of
annual reports, federal tax returns, or audited financial statements.
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the
priority date, the day the Form ETA 750 was accepted for processing by any office within the
employment system of the Department of Labor. See 8 C.F.R. § 204.5(d). Here, the Form ETA 750
was accepted for processing on June 29,2001. The proffered wage as stated on the Form ETA 750
is $7,843.34 per month, which amounts to $94,120.08 annually. On the Form ETA 750-B, signed by
the beneficiary, the beneficiary claimed to have worked for the petitioner as of August 2002.
On the petition, the petitioner claimed to have an establishment date in 1995, a gross annual income
of $22,700,000, a net income of $203,000 and 211 employees. In support of the petition, the
petitioner submitted a statement from its Chief Financial Officer (CFO).
On August 1, 2006, the director requested that the petitioner provide information related to the
petitioner's ability to pay the beneficiary the proffered wage, including the petitioner's federal tax
returns for the years 2001,2002,2003,2004, and 2005, as well as copies of the beneficiary's W-2
Forms for the years 2004, and 2005. The RFE further noted that the petitioner paid the beneficiary
$61,128.95 in 2003, when the proffered wage was $94,120.08, and requested an explanation for this
difference.
In response, the petitioner submitted IRS Form 1120 U.S. Corporation Income Tax returns for the
years 2002, 2003 and 2004. The tax returns show either sufficient net income or sufficient net
current assets to pay the proffered wage for this beneficiary. CIS records, however, show that the
petitioner has filed immigrant and non-immigrant petitions in behalf of over 600 beneficiaries since
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the company began its business. Thus, even if we did not uphold the director's basis of denial, we
would need to remand the matter for an inquiry into the petitioner's ability to pay the proffered wage
of all of the beneficiaries of pending petitions .
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition
may not be approved.
The burden ofproof in visa petition proceedings remains entirely with the petitioner. Section 291 of the
Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed.