dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
In Re: 03712201 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 13, 2020 
The Petitioner, a health care recruitment business for hospitals, seeks to employ the Beneficiary as a 
registered nurse. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant category. See 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" immigrant 
classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident 
status to work in a position that requires at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition on the ground that the Petitioner did 
not establish that it had the continuing ability to pay the proffered wage to this Beneficiary, as well 
as the proffered wages of the beneficiaries of all its other pending or approved 1-140 petitions, from 
the priority date of this petition onward. 
On appeal the Petitioner asserts that the Director 's method of calculating the Petitioner's ability to 
pay was flawed, that the Director lacked the legal authority to impose such a test, and that the 
evidence of record establishes the Petitioner's ability to pay the proffered wages of the instant 
Beneficiary and all of its other 1-140 beneficiaries. 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
This petition is for a Schedule A occupation. A Schedule A occupation is one codified at 20 C.F.R. 
§ 656.5(a) for which the Department of Labor (DOL) has determined that there are not sufficient 
U.S. workers who are able, willing, qualified and available and that the wages and working 
conditions of similarly employed U.S. workers will not be adversely affected by the employment of 
aliens in such occupations. The current list of Schedule A occupations includes professional nurses. 
Id. Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain 
a certified ETA Form 9089, Application for Permanent Employment Certification (ETA 9089), from 
the DOL prior to filing the petition with U.S. Citizenship and Immigration Services (USCIS). Instead, 
the petition is filed directly with USCIS with an uncertified ETA 9089 in duplicate. See 8 C.F.R. 
§§ 204.5(a)(2) and (k)(4); see also 20 C.F.R. § 656.15. 
II. ANALYSIS 
The regulation at 8 C.F.R. § 204.5(g)(2) provides, in pertinent part, as follows: 
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 date1 is established and continuing until the 
beneficiary obtains lawful permanent residence [LPR]. Evidence of this ability shall 
be either in the form of copies of annual reports, federal tax returns, or audited 
financial statements. In a case where the prospective United States employer 
employs 100 or more workers, the director may accept a statement from a financial 
officer of the organization which establishes the prospective employer's ability to pay 
the proffered wage. In appropriate cases, additional evidence, such as profit/loss 
statements, bank account records, or personnel records, may be submitted by the 
petitioner or requested by [USCIS]. 
In this case the proffered wage of the job offered is $21.43 per hour. Based on a standard work year 
of 2,080 hours, the hourly wage amounts to $44,574.40 per year. The priority date of the petition is 
October 6, 2017. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the proffered wage for the time period in question, that evidence when 
accompanied by regulatory required documentation is considered proof of the petitioner's ability to 
pay the proffered wage to that beneficiary. In this case, however, the record indicates that the 
Petitioner has not employed the Beneficiary. Thus, the Petitioner cannot establish its ability to pay 
the proffered wage from the priority date onward based on wages paid to the Beneficiary. 
If a petitioner has not employed the beneficiary and paid that individual a salary equal to or above 
the proffered wage from the priority date onward, USCIS will examine the net income and net 
current assets figures recorded on the petitioner's federal income tax return(s), annual report(s), or 
audited financial statements(s). If either of these figures, net income or net current assets, equals or 
exceeds the proffered wage or the difference between the proffered wage and the amount paid to the 
beneficiary in a given year, and the petitioner has no additional proffered wage obligations to other 
1-140 beneficiaries, the petitioner would be considered able to pay the proffered wage during that 
year. However, if a petitioner has filed 1-140 petitions for multiple beneficiaries, it must 
demonstrate that its job offer to each 1-140 beneficiary is realistic, and that it has the abi I ity to pay 
1 The "priority date" of the petition is ordinarily the date the underlying labor certification application was filed with the 
DOL. See 8 C.F.R. § 204.5(d). In this case, however, since the petition did not require a certified ETA 9089, the 
"priority date" is the date the petition (with the completed but uncertified ETA 9089) was filed with USCIS. That date 
was October 6, 2017. 
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the proffered wage of each beneficiary. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 
2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay 
multiple beneficiaries). Thus, the Petitioner must establish its ability to pay this Beneficiary as well 
as the beneficiaries of the other 1-140 petitions that were pending or approved as of, or filed after, the 
priority date of the current petition. 2 
Since USCIS records indicated that the Petitioner had filed multiple 1-140 petitions, the Director 
issued a request for evidence (RFE) advising the Petitioner to submit, among other things, a list of 
all its 1-140 petitions with the following information for each petition: 
• the receipt number, 
• the beneficiary's name, 
• the priority date, 
• the beneficiary's dates of employment with the Petitioner, 
• the beneficiary's current status (whether the petition has been withdrawn, or denied, or is on 
appeal, or the beneficiary has acquired legal permanent residence) with corroborating 
documentation, 
• for any inactive petition, the date and documentary evidence of its withdrawal, or denial, or 
the beneficiary's LPR status, and 
• the proffered wage listed in the ETA 9089. 
The Petitioner was also requested to submit: 
• the Forms W-2 (Wage and Tax Statements) or Forms 1099-MISC (Miscellaneous Income) 
issued to each beneficiary, and 
• the Forms 941, Employer's Quarterly Federal Tax Returns, and state unemployment 
compensation reports, it ti led for the last two quarters of 2017 and first two quarters of 2018. 
In addition, the Petitioner was requested to submit a copy of: 
• its 2017 federal income tax return, or 
• its annual report for 2017, or 
• an audited financial statement for 2017. 
In response to the RFE the Petitioner submitted a copy of a consolidated financial report ofl I I I and its subsidiaries, dated December 31, 2017, which incorporates an 
audited financial statement. The Petitioner is a wholly-owned subsidiary of D Included in the 
audited financial statement is a consolidated balance sheet for December 31, 2017, which lists total 
2 A petitioner's ability to pay the proffored wage of one of the other 1-140 beneficiaries is not considered: 
• after the other beneficiary obtains lawful permanent residence; 
• if an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or 
• before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
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current assets of $14,121,885 and total current liabilities of $6,105,864. Thus, the Petitioner's parent 
company. I I had net current assets of $8,016,021 at the end of 2017. The Petitioner also 
submitted a spreadsheet listing 556 1-140 petitions it filed over the years, with the following 
information for each petition: 
• the receipt number, 
• the beneficiary's first and last names, 
• the priority date, 
• the proffered wage, 
• whether the beneficiary is currently employed or not, 
• the beneficiary's employment start date, 
• whether the beneficiary has LPR status, and 
• the date LPR status was granted, if applicable. 
The Director found that the documentation submitted in response to the RFE, in addition to the 
initial evidence submitted with the petition, did not establish the Petitioner's ability to pay the 
proffered wages of all its 1-140 beneficiaries. The Director noted that the Petitioner did not submit 
all of the evidence requested in the RFE. In particular, the Petitioner did not submit any W-2 forms 
for the 1-140 beneficiaries it employed. Thus, the Petitioner did not establish that the wages paid to 
its 1-140 beneficiaries equaled or exceeded their proffered wages. The Director also stated that the 
Petitioner did not submit a copy of the Petitioner's tax return ( or annual report or audited financial 
statement) since the entity for which the audited financial statement was submitted has a different 
federal employer identification number (FEIN) and is not the Petitioner in this proceeding. Thus, the 
net current assets figure in the audited financial statement for 2017 could not be ascribed to the 
Petitioner. 
Furthermore, even if USCIS used the information provided about the 1-140 beneficiaries and treated 
the financial data in the consolidated balance sheet as applicable to the Petitioner rather its parent 
company, the Director found that this evidence would not establish the Petitioner's ability to pay the 
proffered wages of all its 1-140 beneficiaries. In reaching this conclusion the Director started with 
the 481 1-140 petitions listed on the spreadsheet that were filed before the priority date of October 6, 
2017, reduced that figure to 315 by subtracting the withdrawals, denials, and the beneficiaries who 
had acquired LPR status, and then multiplied 315 by the lowest proffered wage on the spreadsheet 
($21.43 per hour, or $44,574.40 per year), which yielded a total proffered wage p.bl.ia.qtion of at least 
$14,040,936. That figure was more than $6 million above the net current assetsl__Jhad at the end 
of 2017. As calculated by the Director, therefore, the net current assets ofOwould not have been 
sufficient to cover the Petitioner's proffered wage obligations to its I-140 beneficiaries in 2017 even 
if those net current assets belonged to the Petitioner. 
On appeal the Petitioner asserts that USCIS should not determine its ability to pay the proffered 
wages of its 1-140 beneficiaries based on its net income or net current assets because these financial 
data do not properly reflect its ability to pay the wages of its employees as they come due. The 
Petitioner cites several federal court cases which suggest that an employer's net income, or net 
current assets, may not be the best indicator of its ability to pay its employees. According to the 
Petitioner, its cash flow and working capital more accurately measure its ability to pay its 1-140 
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beneficiary nurses who are hired, then placed with medical facilities for fees that are paid by the 
clients 30-60 days later, thus ensuring a steady source of income. The Petitioner also cites a letter to 
the court by U.S. government counsel in one of the cited cases which acknowledges that net income 
and net current assets are not the only financial criteria for determining an employer's ability to pay, 
and that the totality of the employer's circumstances including other business factors could also be 
taken into consideration. 
We do not accept the Petitioner's contention that its net income and net current assets as recorded on 
its federal income tax returns and audited financial statements should be ignored in our 
determination of the Petitioner's ability to pay the proffered wages of its 1-140 beneficiaries. USCIS 
has long looked to a petitioner's net income and net current assets as primary (though not exclusive) 
figures to consider in determining its ability to pay proffered wages. Reliance on federal income tax 
returns as a basis for determining a petitioner's ability to pay the proffered wage is well established 
by judicial precedent. See Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 
1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see 
also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. 
Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), 
aff 'd, 703 F.2d 571 (7th Cir. 1983). 
In this case there is one federal income tax return in the record, Form 1120, which was filed by the 
Petitioner's parentJ lfor the year 2016, which preceded the priority date of this petition. As 
noted by the Director's decision, the 2016 return recorded taxable income of $4,992,190 (Page 1, 
line 28). It also recorded net current assets of $11,283,442 in Schedule L (linesl-6 and 16-18). 
These figures belong tol I however, and cannot be ascribed to the Petitioner as a separately 
incorporated subsidiary. Since a corporation is a separate and distinct legal entity from its owners 
and shareholders, the assets of its shareholders or of other enterprises or corporations cannot be 
considered in determining the petitioning corporation's ability to pay the proffered wage. See 
Matter of Aphrodite Investments, Ltd., 17 I&N Dec. 530 (Comm'r 1980). In a similar case, the comi 
in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. Sept. 18, 2003) stated that "nothing in the 
governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of 
individuals or entities who have no legal obligation to pay the wage." 
On page 1 (box A) of the 2016 returnD indicated that the Form 1120 was a consolidated return 
and that a Schedule M-3 was attached. On Schedule M-3 categories of income and expenses were 
listed for the Petitioner. The tax return also included a Form 5471 (Information Return of U.S. 
Persons with Respect to Certain Foreign Corporations) which included a separate income statement 
(Schedule C) and balance sheet (Schedule F) for the Petitioner. The income statement recorded 
gross receipts of $25,245,089 (line la) and net income of $1,769,190 (line 21), while the balance 
sheet recorded net current liabilities of $791,644 (lines 1-4 and 14-15). Thus, it appears that the 
Petitioner had net income of $1,760,190 in 2016 and no net current assets at the end of that year. 
Since 2016 was before the priority date in 2017, however, the Petitioner's net income in 2016 cannot 
be utilized in calculating its ability to pay the proffered wages of its 1-140 beneficiaries in 2017, and 
would be substantially insufficient given the total combined proffered wages of over $14 million. 
The only document submitted by the Petitioner for 2017 that accords with the evidentiary 
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requirement of 8 C.F.R. § 204.5(g)(2) is the consolidated financial statement of the Petitioner's 
parent) I That document, however, does not include any information about the Petitioner's net 
income or net current assets in 2017, or any other information specific to the Petitioner. Therefore, 
there is no evidence in the record of the Petitioner's net income or net current assets, if any, in the 
priority date year of 2017 or in subsequent years on which to determine whether it has had the ability 
to pay the proffered wages of the instant Beneficiary and its other 1-140 beneficiaries from the 
priority date onward. 
As advocated by the Petitioner, USCIS may also consider the totality of the Petitioner's 
circumstances, including the overall magnitude of its business activities, in determining the 
Petitioner's ability to pay the proffered wage. See Matter of Sonegawa, 12 l&N Dec. 612. USCIS 
may, at its discretion, consider evidence relevant to the petitioner's financial ability that falls outside 
of its net income and net current assets. We may consider such factors as the number of years the 
petitioner has been doing business, the established historical growth of the petitioner's business, the 
petitioner's reputation within its industry, the overall number of employees, whether the beneficiary 
is replacing a former employee or an outsourced service, the amount of compensation paid to 
officers, the occurrence of any uncharacteristic business expenditures or losses, and any other 
evidence that USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In this case the Petitioner states that it was established in 1973, had 200 employees at the time the 
petition was filed in 2017, and had gross annual income of $40.2 million. The Petitioner cites the 
gross revenue figures in the recent tax returns and audited financial statements of its parent! I 
which totaled $53,208,289 in 2016 and $58,670,349 in 2017, as evidence of its strong financial state. 
These are the parent's figures, however, not the Petitioner's. As previously discussed, the Petitioner 
had net income of only $1,760,190 in 2016, and no net current assets but rather net current liabilities 
of $791,644 at the end of that year. These figures would be considered against the Petitioner's total 
proffered wage obligation of at least $14,040,936. There is no evidence whatsoever of the 
Petitioner's net income or net current assets, if any, in subsequent years. The Petitioner claims that it 
has an outstanding record in the industry, but no independent evidence thereof has been submitted in 
this proceeding, only the unsupported statements of its CFO/COO. The Petitioner also asserts that it 
has a longstanding record of sponsoring nurses without any issues in paying their wages. However, 
the Petitioner did not submit the W-2 (or 1099-MISC) forms requested in the Director's RFE to 
demonstrate that exact point - that it has paid the proffered wages owed to its sponsored nurses. The 
failure to submit requested evidence that precludes a material line of inquiry is a ground for denying 
the petition. See 8 C.F.R. § 103(b)(14). It is the Petitioner's burden to establish eligibility for the 
immigration benefit it seeks. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Skirball Cultural 
Center, 25 l&N Dec. 799, 806 (AAO 2012). As the record lacks any form of required 
documentation identified in 8 C.F.R. § 204.5(g)(2) specifically applicable to the Petitioner in the 
priority date year of 2017 or subsequent years, or any of the requested documentation showing that 
the Petitioner has fulfilled its proffered wage obligations to other 1-140 beneficiaries, we cannot 
conclude that the Petitioner has established its ability to pay the proffered wages of the instant 
Beneficiary and all its other 1-140 beneficiaries based on the totality of its circumstances. 
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Finally, the Petitioner asserts that USCIS does not have legal authority to impose an ability to pay 
requirement in its adjudication of 1-140 petitions. The Petitioner is mistaken. Federal courts have 
issued many decisions over the years in cases involving 1-140 petitions which resolved numerous 
issues about the procedures employed by USCIS in determining the ability of various types of 
petitioners to pay their proffered wage obligations. No U.S. court has ever decided that USCIS lacks 
the legal authority to make such determinations. 
As previously discussed, 8 C.F.R. § 204.5(g)(2) requires USCIS to evaluate a petitioner 's ability to 
pay proffered wages. Moreover, case law has interpreted the Act to require petitioners to 
demonstrate their financial capabilities. Section 204(b) of the Act allows a petition's approval only 
"[a]fter an investigation of the facts in each case" and if USCIS "determines that the facts stated in 
the petition are true." An immigration officer therefore "must consider the merits of the petitioner's 
job offer, so that a determination can be made whether the job offer is realistic and whether the wage 
offer can be met." Matter of Great Wall, 16 l&N Dec. 142, 145 (Acting Reg'l Comm'r 1977). An 
officer must also determine a petitioner's ability to pay proffered wages under section 204(a)(l)(F) 
of the Act, which allows a business to file a petition if it is "desiring and intending to employ [ a 
foreign national] within the United States." See Matter of Sonegawa , 12 l&N Dec. at 614. "The 
term 'desiring and intending to employ' contemplates not only the physical facilities to utilize such 
services but the financial ability to meet the wage requirements of the certified job offer." Id. In 
addition, as the Petitioner acknowledges, federal courts that have considered the issue have ruled that 
USC IS has authority to dete1mine a petitioner's ability to pay a proffered wage. 3 Thus, under 
applicable regulations and case law, USCIS must determine a petitioner's ability to pay. 
Ill. CONCLUSION 
For all of the reasons discussed above, the Petitioner has not established its continuing ability to pay 
the proffered wage of the instant Beneficiary and the proffered wages of all of its other 1-140 
beneficiaries from the priority date of October 6, 2017, onward . The appeal wi II be dismissed for the 
above stated reason. In visa petition proceedings, it is the petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has not 
met that burden. 
ORDER: The appeal is dismissed. 
3 See Masonry Masters, Inc. v. Thornburgh , 875 F. 2d 898, 901 (D.C. Cir. 1989); Tongatapu Woodcraft Haw., Ltd. v. 
Feldman, 736 F.2d 1305, 1309 (9th Cir . 1984); Four Holes Land & Cattle, LLC v. Rodriguez, Civil Action No. 5:15-cv-
03858-JMC, 2016 WL 4708715 *4 (D.S.C. Sept. 9, 2016); Econo Inn Corp. v. Rosenberg, 145 F.Supp.3d 708, 714 (E.D. 
Mich . 2015); Rizvi v. Dep 't of Homeland Sec., 37 F.Supp.3d 870, 885 (S.D. Tex. 2014), ajf'd, 627 Fed.App'x. 292 (5th 
Cir . 2015); Woody's Oasis v. Rosenberg, No. 1:13-cv-367, 2014 WL 413503 *3 (W.D. Mich . Feb. 4, 2014); Chi-Feng 
Chang v. Thornburgh, 719 F.Supp 532, 536 (N.D. Tex. 1989); Elatos Rest., 632 F.Supp. at 1053-54; Ubeda v. Palmer, 
539 F.Supp. 647, 649-50 (N.D. Ill. 1982), ajf'd, 703 F.2d 571 (7th Cir . 1983). 
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