dismissed EB-3 Case: Health Care

MA TIER OF U-C- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of' the 
Administrative Appeals Oflice 
DATE: JULY 20, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of heallh care services, seeks to employ the Beneficiary as a registered 
nurse. It requests her classification under the· third-preference immigrant category as a skilled 
worker. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident 
status. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the combined proffered wages of this and 
other petitions. 
On appeal, the Petitioner submits additional evidence and asserts that the Director miscounted the 
number of proffered wages it must pay. It also contends that the Director disregarded evidence and 
factors supporting its ability to pay the combined proffered wages. 
Upon de novo review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration usually follows a three-step process. To permanently fill a job in 
the United States with a foreign national, an employer must first obtain certification from the U.S. 
Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). If 
the DOL certifies an offered position, an employer must then submit the labor certification with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of 
the Act, 8 U.S.C. § 1154. If USCIS approves a petition, the foreign national may finally apply for an 
immigrant visa abroad or, if eligible, adjustmen~ of status in the United States. See section 245 of 
the Act, 8 U.S.C. § 1255. 
The DOL has already determined that the United States lacks sufficient able, willing, qualified, and 
available nurses, and that employment of foreign ~ationals in this "Schedule A" occupation will not hurt 
the wages and working conditions of U.S. workers with similar jobs. 20 C.F.R. § 656.5. Thus, the 
DOL has authorized USCIS to adjudicate labor certification applications for nurses. 20 C.F.R. 
Matter of U-C- fllc. 
§ 656.15(a). USCIS therefore not only rules on this petition, but also on its accompanying labor 
certification application. 
II. ABlLITY TO PAY THE PROFFERED WAGE 
A pettt10ner must demonstrate its continuing ability to pay a proffered wage, from a pet111on's 
priority date until a beneficiary obtains lawful permanent residence. 1 8 C.F.R. ~ 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. Id. 
Here, the labor certification application states the proffered wage of the offered position of registered 
nurse as $50,918 a year. As of the appeal's filing, required evidence of the Petitioner's ability to pay 
the proffered wage in 2017 was not yet available. 2 For purposes of this decision, we will therefore 
consider the Petitioner's ability to pay only in 2016, the year of the petition's priority date. 
In determining ability to pay, USCIS first ~xamines whether a petitioner paid a beneficiary the full 
annual proffered wage. If a petitioner did not pay the full proffered wage, USCIS considers whether 
it generated annual amounts of net income or net curre)J.t assets sufficient to pay any difference 
between the proffered wage and wages paid. If net income and net current assets are insufficient, 
USCIS may consider other factors affecting a petitioner's ability to pay. See Matter of Sonegawa, 
12 I&~ Dec. 612, 614-15 (Reg'! Comm'r 1967).3 
The Petitioner does not assert its employment of the Beneficiary, whom the record indicates lives in 
the Philippines. 13ased on payments to the Beneficiary, the record therefore does not establish the 
...., Petitioner's ability to pay the proffered wage. 
Copies of the.Petitioner's federal income tax returns for 2016 reflect net income of $185,868 and net 
current assets of $1,346,053. 4 Both of these amounts exceed the annual proffered wage of $50,918. 
As the Director noted, however, the Petitioner filed other petitions that were pending or approved as 
of this petition's priority date of December 20,' 2016, or submitted thereafter. A petitioner must 
1 This petition's priority date is December 20, 2016, its filing date. See 8 C.F.R. § 204.S(d) (explaining how to determine 
a petition's priority date). 
2 The Petitioner submits financial statements for part of 2017. Contrary to 8 C.F.R. § 204.5(g)(2), however, the 
statements do not indicate that they were audited. They therefore do not constitute required evidence of the Petitioner's 
ability to pay that year. • · 
J Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proftercd wage. See, e.g .. 
River St. Donut:,~ Inc. v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009). 
4 The Petitioner files its federal income tax returns as an S corporation. Its tax returns for 2016 report deductions from 
sources outside its business on Schedule K to IRS Form l 120S, U.S. Income Tax Return for an S Corporation. See 
Internal Revenue Scrv. (IRS), Instructions to Form 1120S, 18, ht1ps://www.irs.gov/pub/irs-pdf/i l 120s.pdf (describing 
Schedule Kasa summary of shareholders' shares ofa corporation's income, losses, credits, and deductions) (last visited 
on July 13, 2018). We therefore consider Schedule K, line 18 of the Petitioner's 2016 tax returns to rellcct its net 
income amount. 
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Matter of U-C- Inc. 
demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary obtains 
lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore demonstrate 
its ability to pay the combined proffered wages of this and its other pending or approved petitions in 
2016. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our revocation of a 
petition's approval where, as of the filing's grant, a petitioner did not demonstrate its ability to pay 
combined proffered wages of multiple petitions) .. 
' On appeal, the Petitioner submits a list of 60 petitions that it filed since 2012, including their receipt 
numbers, proffered wages, priority dates, and statuses. 5 The Petitioner, however, asserts that only 15 
of these petitions were pending or approved as of December 20, 2016. It contends that the 
beneficiaries of the other 45 petitions obtainep lawful permanent residence, relieving it of the 
obligation to demonstrate its ability to pay their combined proffered wages. 
Of the 15 petitions specified by the Petitioner, it need not demonstrate its ability to pay the proffered 
wages of five of them in 20l6. USCIS records indicate that the priority dates of these five petitions 
are in 2017. We do not require petitioners to demonstrate abilities to pay proffered wages before 
petitions' priority dates. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its ability 
to pay from a petition's priority date). But the Petitioner must show its ability to pay the other 10 
petitions it specified, because they have priority dates in 2016 or earlier. 
Additionally, the record indicates that the Petitioner must demonstrate its ability to pay the proffered 
wages of 12 other petitions from its list of 60. As the Petitioner argues, the beneficiaries of these 12 
petitions obtained lawful permanent resident status. USCIS records, however, indicate that they did 
not obtain that status until 2017. Thus, as of the end of 2016, their petitions remained pending or 
approved. The Petitioner must therefore demonstrate its ability to pay the combined proffered wages 
of these 12 additional petitions in 2016. 
Thus, the record indicates that the Petitioner must demonstrate its ability to pay the combined 
proffered wages of this and 22 other petitions on its list in 2016. Based on the proffered wages 
provided by the Petitioner, the 23 petitions have combined proffered wages of $1,280,597. As 
previously indicated, the Petitioner reported net current assets in 2016 of more than $1.3 million. 
USCIS records, however, indicate that the Petitioner filed more than 60 other petitions that were 
pending or approved as of December 20, 2016. Many of the beneficiaries of these petitions obtained 
lawful permanent residence after 2016. These additional petitions are not on the Petitioner's list, and 
the company did not provide their proffered wages, priority dates, or other information about them. 
Absent this information, we cannot determine th~ Petitioner's wage burden for 2016. Thus, based on 
examinations of the Petitioner's wages paid, net' income, and net current assets, the record does not 
establish its ability to pay in 2016. 
The Petitioner asserts that USCIS should have considered bank account statements showing money 
5 In response to the Director's request for evidence, the Petitioner submitted a list of 51 other petitions. On appeal, 
however, it submitted an amended list with nine additional petitions. 
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Matter of U-C- Inc. 
available to pay proffered wages. The bank statements, however, cover June l, 2017, through 
August 3"1, 2017. As previously discussed, because the record lacks required evidence for 2017, we 
are not considering the Petitioner's ability to pay the proffered wage that year. Also, three months is 
not a sufficient period to demonstrate an ability to pay an annual proffered wage. The short period 
does not account for temporary economic swings or the cyclical nature of some businesses. The 
bank statements therefore do not establish the Petitioner's ability to pay. 
As the Petitioner argues, however, we may consider factors beyond its wages paid, net income, and 
net current assets. Under Sonegawa, we may consider: the number of years the Petitioner has 
conducted business; its number of employees; the growth of its business; its incurrence of 
uncharacteristic losses or expenses; its reputation in its industry; the Beneficiary's replacement of a 
current employee or outsourced service; or other evidence of its ability to pay. See Matter of 
Sonegawa, 12 I&N Dec. at 614-15. 
However, the absence of information needed to determine the Petitioner's total wage obligation 
inhibits our ability to fully analyze whether th~ totality of the Petitioner's financial circumstances 
would be sufficient to establish its ability fo pay.; Moreover, when examining the financial history of 
the Petitioner, we note that the Petitioner's annual gross revenues declined from 2012 to 2016. Also, 
unlike in Sonegawa, the record does not establish the Petitioner's incurrence of uncharacteristic 
losses or expenses, or its possession of an outstanding reputation in its industry. A totality of the 
circumstances under Sonegawa therefore does not establish the Petitioner's ability to pay. 
The Petitioner also asserts that its' employees generate more revenues than it pays them. It therefore 
asserts that its business model establishes its ability to pay the Beneficiary's proffered wage. For 
immigration purposes, however, the Petitioner must demonstrate its ability to pay combined 
proffered wages from a petition's priority date. USCIS records indicate that, like the Beneficiary 
here, many of the Petitioner's beneficiaries remain outside the United States during their 
immigration processes and thus do not begin generating incom·e for t_he company _until months or 
years after the priority dates of their petitions. The Petitioner's business model therefore does not 
demonstrate its ability to pay combined proffere~ wages from petition priority dates. 
For the foregoing reasons, the Petitioner has not demonstrated its ability to pay the proffered wage. 
III. THE NOTICE OF FILING 
Although unaddressed by the Director, the record also does not establish the validity of the 
accompanying labor certification application. An employer seeking Schedule A designation must 
post a notice of filing at the proposed worksite. 20 C.F.R. § 656.15(b)(2). The notice must state its 
publication in connection with a labor certification application and the ability of anyone to provide 
documentary evidence on the application. 20 C.F.R. §§ 656.10(d)(3)(i), (ii). The notice must also 
provide the address of the DO L's Certifying Offiper. 20 C.F.R. § 656.lO(d)(3)(iii). 
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Matter of U-C- Jnc. 
' Here, the Petitioner's chief executive officer (CEO) certified that its filing notice complied with 
DOL regulations. But the copy of the notice submitted by the Petitioner states neither its publication 
in connection with a labor certification application, nor the ability of anyone to provide documentary 
evidence on the application. The notice also does not contain the required DOL address. The record 
therefore does not establish the Petitioner's compliance with DOL regulations. The labor 
certification application is therefore not approvable. See 20 C.F.R. § 656.15(e) (authorizing an 
immigration officer to determine whether a Schedule A application meets applicable DOL 
requirements). 
Therefore, the Petitioner has not established its posting of the filing notice pursuant to DOL 
regulations. 
IV. INTENT TO EMPLOY IN THE OFFERED POSITION 
Also unaddressed by the Director, the record does not establish the Petitioner's intention to employ 
the Beneficiary in the offered position. 
A business may file a petition if it is "desiring and intending to employ [a foreign national] within 
the United States." Section 204(a)(l)(F) of the Act. A petitioner must intend to employ a 
beneficiary under the terms of an accompanyi.ng labor certification application. See Matter of 
lzdebska, 12 I&N Dec. 54, 55 (Reg') Comm'r 1966) (affirming a denial where, contrary lo the 
statements on an accompanying certification, a petitioner did not intend to employ a beneficiary as a 
domestic worker on a full-time, live-in basis). 
Here, the record indicates the Petitioner's intention to permanently employ the Beneficiary as a 
registered nurse. The labor certification application identifies the proposed worksite as another suite 
in the building where the Petitioner operates its business. The labor certification does not indicate 
performance of the position's duties at any other address. Also, in its request for a prevailing wage 
determination, the Petitioner indicated that. the :position's duties would not be performed at other 
locations. 
The Petitioner provided a copy of a staffing agreement, contracting the Beneficiary to perform 
nursing services for another company in the Petitioner's building. 6 The agreement and the other 
company's website indicate that the company provides nursing and other services to people at their 
homes, and in assisted living or skilled nursing facilities. The materials do not indicate performance 
of nursing duties· at the company's address. Thus, tne record does not establish the Petitioner's 
intention to employ the Beneficiary in the· offered position at the work site stated on the labor 
certification application and the prevailing wage request. Rather, the record indicates that she would 
perform nursing se_rvices at the homes of clients and in facilities outside the Petitioner's building. 
r, Online public records indicate that the Petitioner and the other company share the same CEO. See Fla. Dep't of State, 
Div. of Corps., "Search Records," http://dos.myflorida.com/sunbiz/search/ (last visited July 17, 2018). 
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Matter of U-C- lllc. 
In addition, performance of the job's duties outside the stated worksite casts doubt on the sufficiency 
of the proffered wage. Depending on where the Beneficiary would work, the offered position might 
require a higher proffered wage. See 20 C.F.R. §§ 656.lO(c)(l), 656.15(b)(l) (requiring a Schedule 
A application to include a prevailing wage determination for the area of intended employment, 
which the proffered wage must equal or exceed). 
In any future filings· in this matter, the Petitioner must explain the inconsistencies of record and 
establish where it intends to employ the Beneficiary. 
V. CONCLUSION 
The Petitioner has not demonstrated its ability to pay the ~ombined proffered wages of this and other 
petitions. Nor has the Petitioner established its posting of the filing notice pursuant to DOL 
regulations. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-C- lnc., ID# 1374036 (AAO July 20, 2018) 
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