remanded EB-2 Case: Soccer Coaching

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042. 
Washington, DC 20529 
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Office: VERMONT SERVICE CENTER 
EAC 03 129 51407 Date: NOV 1 0 2005 
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. tj 1 153(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. 
hobert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will be 
withdrawn and the petition will be remanded for further action and consideration. 
The petitioner is a soccer sport club. It seeks to employ the beneficiary permanently in the United States as a 
soccer coach pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1 153(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 the continuing ability to pay 
the beneficiary the proffered wage as of the priority date of the visa petition and denied the. petition 
accordingly. 
On appeal, counsel submits a brief and additional evidence. 
The regulation at 8 C.F.R. 5 204.5(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 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 
April 30, 2001. The proffered wage as stated on the Form ETA 750 is $36,000 annually. On the Form ETA 
750B, signed by the beneficiary, the beneficiary did not claim to have worked for the petitioner. 
On the petition, the petitioner claimed to have been established on September 2, 1998, to have a gross annual 
income of $1 38,4 1 1, net annual income of $4,927, and to currently employ two workers. The petitioner also 
indicated that the position being offered was not a new position. In support of the petition, the petitioner 
submitted its 2001 U.S. Corporation Income Tax Return, Form 1120. The tax returns reflect the following 
information: 
Net income $4,927 
Current Assets $7,739 
Current Liabilities $1,000 
Net current assets $6,739 
Because the director deemed the evidence submitted insufficient to demonstrate the petitioner's continuing 
ability to pay the proffered wage as of the priority date, on March 24, 2004, the director requested additional 
evidence pertinent to that ability. In accordance with 8 C.F.R. 5 204.5(g)(2), the director specifically 
requested that the petitioner provide copies of annual reports, federal tax returns, or audited financial 
statements to demonstrate its continuing ability to pay the proffered wage "as of' the priority date. 
In response, the petitioner asserted that the 2001 tax return demonstrated the petitioner's ability to pay the 
proffered wage in that year because its gross income was $138,411 and it paid $68,820 in commissions and 
wages of coaches who worked on a part-time basis. 
The director determined that the evidence submitted did not establish that the petitioner had the ability to pay 
the proffered wage "at the time of filing" and, on July 19,2004, denied the petition. The director provided no 
explanation for failing to consider the petitioner's assertions regarding commissions and wages paid to part- 
time coaches. 
On appeal, counsel asserts that the petitioner emplo ed an independent contractor,or 
soccer coaching services. The petitioner submits Mr bs 2001 Form 1099-MISC reflecting $39.055 in 
nonemployee compensation. 
In determining the petitioner's ability to pay the proffered wage during a given period in cases where the 
petitioner has submitted the required initial evidence pursuant to the regulation at 8 C.F.R. 5 204.5(g)(2), 
Citizenship and Immigration Services (CIS) will first examine whether the petitioner employed and paid the 
beneficiary during that period. If the petitioner establishes by documentary evidence that it employed the 
beneficiary at a salary equal to or greater than the proffered wage, the evidence will be considered prima facie 
proof of the petitioner's ability to pay the proffered wage. As stated above, the petitioner has submitted the 
initial evidence required by submitting its corporate tax return for 2001. While the petitioner did not establish 
that it employed and paid the beneficiary the full proffered wage in 2001, the petitioner has now established 
that it paid an independent contractor more than the proffered wage during that year for services that the 
beneficiary's employment would replace. Wages already paid to others are typically not available to prove the 
ability to pay the wage proffered to the beneficiary as of the priority date of the petition. The petitioner, however, 
named the worker the beneficiary will replace and provided evidence of his wages. The record sufficiently 
demonstrates that the beneficiary will perform the same services as the worker he will replace. Thus, we are 
satisfied that this evidence establishes the petitioner's ability to pay in 200 1. 
Nevertheless, the record is silent as to the petitioner's ability to pay the proffered wage in subsequent years. 
The director, however, never clearly requested such evidence and did not indicate that the lack of such 
evidence was the basis of denial. Therefore, we must remand the matter to the director for the purposes of 
inquiring into the petitioner's ability to pay the proffered wage after 2001. 
In addition, the director must address whether the position being offered requires an advanced degree projessional 
or whether it requires an alien of exceptional ability. According to 8 C.F.R. 5 204.5(k)(2), a "profession" is "one 
of the occupations listed in section lOl(a)(32) of the Act, as well as any occupation for which a United States 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation." 
Section 101(a)(32) of the Act provides that "the term 'profession' shall include but not be limited to architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, 
or seminaries." 
The director should consider that the Occupational Outlook Handbook, available at 
http://bls.gov/oco/ocos25 1 .htm#training, provides: 
Public secondary school head coaches and sports instructors at all levels usually must have a 
bachelor's degree. (For information on teachers, including those specializing in physical 
education, see the section on teachers-preschool, kindergarten, elementary, middle, and 
Page 4 
secondary elsewhere in the Handbook.) Those who are not teachers must meet State 
requirements for certification in order to become a head coach. Certification, however, may 
not be required for coach and sports instructor jobs in private schools. Degree programs 
specifically related to coaching include exercise and sports science, physiology, kinesiology, 
nutrition and fitness, physical education, and sports medicine. 
Therefore, this matter will be remanded for consideration of whether the petitioner had the ability to pay the 
proffered wage after 2001 and whether the position offered requires an advanced degree professional or an alien 
with exceptional ability. As always in these proceedings, the burden of proof rests solely with the petitioner. 
Section 291 of the Act, 8 U.S.C. 5 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for further action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the Administrative Appeals Office for review.