dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-H-P-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 30, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a healthcare business, seeks to employ the Beneficiary as a registered nurse. It requests 
classification of the Beneficiary as a skilled worker under the third preference immigrant classification. 
See Immigration and Nationality Act (the Act)§ 203(b)(3)(A)(i), 8'U.S.C. § 1153(b)(3)(A)(i). This 
employment-based 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 2 years of training or 
expenence. 
The Director, Texas Service Center, denied the petition. The Director determined that the Petitioner 
had not established its ability to pay the proffered wage from the priority date onward. The matter is 
now before us on appeal. The Petitioner asserts that it has the ability to pay the proffered wage to all 
beneficiaries on whose behalf it has filed an immigrant petition because each worker generates more 
than the proffered wage in net profit for the company. Upon de novo revie~, we will dismiss the 
appeal. '--· 
I. LAW AND ANALYSIS 
A. Schedule A Petitions 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved labor 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). Next, U.S. Citizenship and Immigration Services (USCIS) 
must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the 
foreign national must apply for an .immigrant visa abroad or, if eligible, adjustment of status in the 
United States. See section 245 ofthe Act, 8 U.S.C. § 1255. 
The instant petition is for a Schedule A occupation. A Schedule A occupation is an occupation 
codified at 20 § C.F.R. 656.5(a) for which the 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 and physical 
therapists. Id. 
Matter of A-H-P-, LLC 
Petitions for Schedule A occupations do not require a petitioner to test the labor market and obtain a 
certified ETA Form 9089, Application for Permanent Employment Certification, (labor certification) 
from the DOL prior to filing the petition with USCIS. Instead, the petition is tiled directly with USCIS 
with a duplicate uncertified ETA Form 9089. See 8 C.F.R. §§ 204.5(a)(2) and (1)(3)(i); see also 
20 C.F.R. § 656.15. 
Petitions for Schedule A occupations must also contain evidence establishing that the Petitioner 
provided its U.S. workers with notice of the filing of an ETA Form 9089 (Notice) as prescribed by 
20 C.F .R. § 656.1 O(d), and a valid prevailing wage determination (PWD) obtained in accordance 
with 20 C.F.R. § 656.40 and 20 C.F.R. § 656.41. See 20 C.F.R. § 656.15(b)(1). 
For the Notice requirement, the Petitioner must provide notice of the filing of an ETA Form 9089 to 
any bargaining representative for the occupation, or, if there is no bargaining representative, by 
posted notice to its employees at the location of the intended employment. See 20 C.F.R. 
§ 656.1 0( d)(l ). 
If the Schedule A occupation is a professional nurse, a petitioner must establish that the beneficiary 
has a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); a 
permanent, full and unrestricted license to practice professional nursing in the state of intended 
employment; or passed the National Council Licensure Examination for Registered Nurses 
(NCLEX-RN). See 20 C.F.R. § 656.5(a)(2). 
In these visa petition proceedings, USCIS determines whether a foreign national meets the job 
requirements specified on a labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g., Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to 
make preference classification decisions). 
The priority date of a Schedule A petition is the date the completed, signed petition (including all 
initial evidence and the correct fee) is properly filed with USCIS. See 8 C.F.R. § 204.5(d). The 
priority date is used to calculate when the beneficiary of the visa petition is eligible to adjust his or 
her status to that of a lawful permanent resident. See 8 C.F.R. § 245.1(g). A petitioner must 
establish the elements for the approval of the petition at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. §§ 204.5(g)(2), 
103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l 
Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45, 49(Reg'l Comm'r 1971). 
In the instant case, the priority date is December 29, 2015. Therefore, the Petitioner must establish 
that all eligibility requirements for the petition have been satisfied from December 29,2015, onward. 
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Matter of A-H-P-, LLC 
B. Ability to Pay the Proffered Wage 
Like all petitioners, a Schedule A petitioner must demonstrate its continuing ability to pay a 
proffered wage from a petition's priority date until a beneficiary obtains lawful permanent residence. 
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. 
The proffered wage of the offered position of registered nurse is $48,526 per year. 
The record before the Director closed on February 1, 2016, with his receipt of the Petitioner's 
response to his request for evidence (RFE). Because required evidence of the Petitioner's ability to 
pay the proffered wage in 2015 was not then available, the Director considered the Petitioner's 
ability to pay in 2014.1 
In determining ability to pay, we first examine whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date, If a record lacks evidence of a petitioner's 
annual payment of a full proffered wage to a beneficiary, we examine whether a petitioner generated 
sufficient annual amounts of net income or net current assets to pay the difference between any 
wages paid and the annual proffered ~age. If a petitioner's net income and net current assets are 
insufficient, we may also consider the overall magnitude of its business activities. See Matter of 
Sonegawa, 12 I&N Dec. 612,614-15 (Reg'l Comm'r 1967).2 
The evidence in the record of proceedings shows that the Petitioner is structured as a domestic 
limited liability company (LLC) and taxed as a partnership. On the petition, the Petitioner claimed 
to have been established in 2003, to have $19.6 million in gross annual income and $123,000 in net 
annual income, and to currently employ 205 workers. 
The Petitioner did not submit any evidence of payments to the Beneficiary. The record therefore 
does not establish its ability to pay the proffered wage on this basis. 
On appeal, the Petitioner did not submit its 2015 tax return, annual report, or audited financial 
statements. Accordingly, the Petitioner did not submit evidenc.e that it had sufficient net income or 
net current assets to pay the proffered wage as of the priority date in 2015. 
Instead, the Petitioner relies on an affidavit from the Petitioner's chief financial officer stating that it 
has over 300 employees, and that it has th~ ability to pay the proffered wage to the instant 
Beneficiary. 
1 The record contains the Petitioner's tax returns and audited financial statements for 2013 and 20 I 4. 
2 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano, 558 F.3d I I I, I I 8 (I st Cir. 2009); Estrada-Hernandez v. Holder, I 08 F. Supp. 3d 936, 942-
43 (S.D. Cal. 2015); Rizvi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 884-85 (S.D. Tex. 2014), aff'd, 627 Fed. 
App'x. 292 (5th Cir. 2015). 
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(b)(6)
Matter of A-H-P- , LLC 
The Petitioner asserts that the Director erred in rejecting a letter from its CFO as proof of its ability to 
pay the proffered wage. The Petitioner notes that regulations allow USCIS to accept a statement from a 
petitioner's financial officer "where the prospective United States employer employs 100 or more 
workers." 8 C.F.R. § 204.5(g)(2). The regulations state that a director "may accept a statement from a 
financial officer of the organization which establishes the prospective employer's ability to pay the 
proffered wage." !d. 
The Petitioner asserts that the Director did not explain his rejection of the CFO's letter. It cites a 2004 
non-precedent decision of ours in which we held that a director abused his discretion by disregarding a 
financial officer's letter without explanation. See 2004 WL 3457071, *3 (AAO 
Oct. 26, 2004). In that case, we found that a financial officer's statement, supported by a copy of a 
federal income tax return, demonstrated a petitioner's ability to pay. !d. 
Contrary to the Petitioner's assertion, we interpret the Director's instant decision as rejecting the CFO's 
letter because of the Petitioner's obligation to pay the proffered wages of multiple pending petitions. 
Immediately after mentioning the CFO's letter, the decision discusses the Petitiqner's other pending 
petitions. Considered in context , the decision indicates that the Petitioner's obligation to pay multiple 
proffered wages renders the letter insufficient evidence of the Petitioner's ability to pay. 
Even if the basis of the Director's rejection of the CFO's letter is unclear, our de novo review finds the 
letter to be insufficient evidence of the Petitioner's ability to pay the proffered wage. Considering the 
hundreds of additional proffered wages for which the Petitioner remains responsible, as detailed below, 
the statement from its financial officer does not demonstrate its ability to pay. 
The Petitioner 's citation to our 2004, non-precedent decision is not persuasive. We are not bound by 
our non-precedent decisions . See 8 C.F.R. § 1 03.3(c) (stating that USCIS employees need only follow 
precedent USCIS decisions). Also, unlike the instant Petitioner, the petitioner in the 2004 case was not 
obliged to pay multiple proffered wages. 
As stated in the Director's decision, USCIS records indicate the Petitioner's filing of more than 400 
Forms I-140, Immigrant Petitions for Alien Worker, in 2015. USCIS records show the Petitioner has 
filed several hundred more Form I-140 petitions since January 1, 2016. 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files from the 
petition's priority date. 8 C.F.R. § 204.5(g)(2) . The instant Petitioner must therefore demonstrate its 
ability to pay the combined proffered wages of the instant Beneficiary and the beneficiaries of its 
other petitions that remained pending after the instant petition's priority date. The Petitioner must 
demonstrate its ability to pay the combined proffered wages from the instant petition's priority date 
until the other beneficiaries obtained lawful permanent residence, or until their petitions were 
denied, withdrawn, or revoked. See Patel v. Johnson , 2 F. Supp. 3d 108, 124 (D. Mass. 2014) 
(affirming our denial of a petition where a petitioner did not demonstrate its ability to pay multiple 
beneficiaries). 
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Matter of A-H-P-, LLC 
In the RFE, the Director requested the Petitioner to provide the receipt numbers, priority dates, and 
proffered wages of all petitions it filed in 2015. The RFE also requested evidence of: wages paid to 
any of the beneficiaries; the withdrawals, revocations, or denials of any of the petitions; and the lawful 
permanent residence status of any of the beneficiaries. Although the Director afforded the Petitioner a 
reasonable opportunity to do so, the Petitioner did not provide the requested information. See 8 C.F.R. 
§ 103.2(b)(14) (allowing USCIS to deny a petition if a petitioner does not submit requested evidence 
that precludes a material line of inquiry). Without the requested evidence regarding the other pending 
petitions, the record did not establish the Petitioner's ability to pay the proffered wage. 
On appeal, the Petitioner did not provide information regarding its other Form I -140 immigrant 
petitions. Without this information, the record does not establish the Petitioner's ability to pay the 
proffered wage. 
The Petitioner also asserts that the Director did not consider the ability of its nurse employees to 
generate income exceeding their salaries and employment-related expenses. The Petitione(s CFO 
stated that the Petitioner receives a net profit of more than $20,000 for each nurse that it annually 
employs. Citing Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989) and 
Construction and Design Co. v. USC IS, 563 F .3d 593 (7th Cir. 2009), the Petitioner states that we must 
consider the additional net income generated by the beneficiaries in determining its ability to pay. 
Although the Petitioner's income may . rise with each additional nurse, there are additional costs 
associated with the employment of each nurse, as well? The Petitioner asserts that it incurs an 
average of approximately $10,000 per year on administrative, tax, and healthcare expenses per 
employee. However, it provides no support for that assertion. The Petitioner cannot meet the 
burden of proof simply by claiming a fact to be true, without supporting documentary evidence. 
Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft o.fCal., 14 
I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 
201 0). The Petitioner must support assertions with relevant, probative, and credible evidence. See 
Matter o.fChawathe, 25 I&N Dec. at 376. 
Like the instant Beneficiary, USCIS records indicate that most of the Petitioner's pending beneficiaries 
live outside the United States. They therefore cannot work and generate net income for the Petitioner 
immediately upon the filing of their petitions. Rather, they must wait for approvals of their petitions 
and their subsequent immigrant visa applications before they can legally enter the United States and 
earn net income for the Petitioner. The record does not establish that the Petitioner's current employees 
generate sufficient amounts of net income to fund the proffered wages of all its pending beneficiaries, 
3 Although the decision in Construction and Design is not binding in this case, that court noted the costs (in addition to 
salary) to the employer in hiring an employee, including "employment taxes (plus employee benefits, if any)." Constr. & 
Design Co., 563 F.3d at 596. It is unclear if the Petitioner's analysis includes compensation expenses for the employee 
which may include legally required benefits (social security, Medicare, federal and state unemployment insurance, and 
worker's compensation), employer costs for providing insurance benefits (life, health, disability), paid leave benefits 
(vacations, holidays, sick, and personal leave), retirement and savings (defined benefit and defined contribution), and 
supplemental pay (overtime and premium, shift differentials, and nonproduction bonuses). 
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(b)(6)
Matter of A-H-P- , LLC 
many of whom have not been earning net income for the Petitioner from the petition's priority date 
while waiting for approvals to enter the United States. 
In dicta, the decisions in Construction and Design and Masonry Masters state that a petitioner would 
not likely seek to employ a foreign national unless the employment would increase its net income. 
Constr. & Design Co., 563 F.3d at 597; Masonry Masters , 875 F.2d at 903. But unlike the instant case, 
neither of those cases involved petitioners responsible for paying proffered wages to multiple 
beneficiaries who lived outside the United States. The facts of those cases therefore distinguish them 
from the instant matter and render them unpersuasive authority. 
As previously indicated, we may also consider evidence of a petitioner's ability to pay a proffered wage 
beyond its net income and net current assets. See Sonegawa, 12 I&N Dec. at 614-15. As in Sonegawa , 
we may consider such factors as: the number of years a petitioner has conducted business; the 
growth of its business; its number of employees ; the occurrence of any uncharacteristic business 
expenditures or losses; its reputation in its industry; whether a beneficiary will replace an employee 
or outsourced service; or other evidence of its ability to pay the proffered wage. 
In the instant case, the record indicates the Petitioner's continuous business operations since 2003. 
Unlike in Sonegawa , however, the record does not indicate the Petitioner's incurrence of 
uncharacteristic business expenditures or losses, its reputation in its industry, or its growth since its 
incorporation in 2003. The record also does not indicate that the Beneficiary will replace an 
employee or outsourced service. Also unlike the petitioner in Sonegawa , the instant Petitioner must 
demonstrate its ability to pay the proffered wages of multiple beneficiaries. 
Thus, considering the totality of the circumstances in the instant case pursuant to Sonegawa , the 
record does not establish the Petitioner ' s ability to pay the proffered wage. 
C. Prevailing Wage Determination 
Although not addressed by the Director, we independently note that, even if the Petitioner had 
established that it had the ability to pay the proffered wage, the record does not establish that the PWD 
is valid for the job offered. Petitions for Schedule A occupations must contain a valid PWD obtained 
in accordance with 20 C.F .R. § 656.40 and 20 C. F .R. § 656.41. See 20 C.F .R. § 656.15(b )( 1 ). The 
Petitioner must attest that the offered wage equals or exceeds the prevailing wage. See 20 C.F.R . . § 
656.10(c). 
The record of proceedings' contains a PWD valid from October 20, 2015, to June 30, 2016, with a 
prevailing wage of $48,526. The PWD is certified for a single job location at 
Florida, and states that the work will not be performed in 
other locations.
4 
It specifically states that the Beneficiary "will be assigned to one permanent 
4 The Petitioner did not submit a Notice for the Florida address . Petitions for Schedule A 
occupations must contain evidence that a valid Notice was provided to the bargaining representative or the emplo yer's 
6 
(b)(6)
Matter of A-H-P-, LLC 
employment location." However, the primary worksite provided at Part H. of the ETA Form 9089 
refers to an attached addendum of worksites that does not include the 1 
Florida address. Further, Part 6. of the Form 1-140 relating to the Beneficiary's proposed work 
address refers to an attached addendum of worksites that does not include the 
, Florida address. Further, none of the various worksites listed on either addendum are 
located in Florida. Accordingly , the PWD is not valid for the job offered. 
The record does not establish that the PWD is valid for the job offered. 
II. CONCLUSION 
The record does not establish the Petitioner's ability to pay the proffered wage from the petition's 
priority date onward. The record also does not establish that the PWD is valid for the job offered. We 
will therefore affirm the Director's decision and dismiss the appeal. · 
In visa petition proceedings, a petitioner bears the burden of establishing its eligibility for a requested 
benefit. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, the instant Petitioner did not meet that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-H-P-, LLC, ID# 111673 (AAO Jan. 30, 2017) 
employees at the location of employment in accordance with 20 C.F.R. ~ 656.1 O(d). The record of proceedings contains 
multiple notices posted in the locations listed on the addendums o f worksites provided with the labor certitication and 
the F orm 1- 140. However, the a ddendums do not include the Florida address, and a 
Notice was not provided for that location. 
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