dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 15, 2023 In Re : 28077334 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a home healthcare agency , seeks to pem1anently employ the Beneficiary as a registered 
nurse . The company requests her classification under the employment-based, third-preference (EB-
3) immigrant visa category as a professional. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This category allows a U.S. business to sponsor a 
noncitizen for permanent residence to work in a job requiring at least a bachelor's degree . Id. 
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 proffered wage of this and another petition 
the company filed. On appeal, the Petitioner contends that the Director disregarded evidence and other 
factors affecting its ability to pay. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec . 537, 537 n.2 (AAO 
2015), we conclude that the company has not established its required ability to pay the combined 
proffered wages. We will therefore dismiss the appeal. 
I. LAW 
Immigration as a professional usually follows a three-step process . First, a prospective employer must 
apply to the U.S. Department of Labor (DOL) for certification that: there are insufficient U.S. workers 
able, willing, qualified, and available for an offered position; and a noncitizen's employment in the 
position would not harm wages and working conditions of U.S . workers with similar jobs . Section 
212(a)(5)(A)(i) of the Act, 8 U.S .C. § 1182(a)(5)(A)(i) . Second, an employer must submit a DOL­
approved labor certification with an immigrant visa petition to U.S. Citizenship and Immigration 
Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. § l 154(a)(l)(F); 8 C.F.R. 
§ 204.5(1)(3)(i) . Finally, ifUSCIS approves a petition, a beneficiary may apply for an immigrant visa 
abroad or, if eligible, "adjustment of status" in the United States. See section 245 of the Act, 8 U.S.C. 
§ 1255. 
DOL, however, has predetermined that the United States lacks sufficient workers who are able, 
willing, qualified, and available for employment as registered nurses. 20 C.F.R. § 656.5(a)(2) (listing 
"professional nurses" under "Schedule A," Group I). Thus, the Petitioner did not need to apply to 
DOL for labor certification or advertise the offered position to U.S. workers. Rather, the company 
submitted its Schedule A labor certification application with its petition, and USCIS adjudicated the 
application under DOL regulations. See 20 C.F.R. § 656.15(a). USCIS' determination on a Schedule 
A labor certification is "conclusive and final." 20 C.F.R. § 656.15( e). 
II. ANALYSIS 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's priority 
date until a beneficiary obtains permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to 
pay must generally include copies of annual reports, federal tax returns, or audited financial 
statements. Id. 
When determining ability to pay, USCIS examines whether a petitioner paid a beneficiary the full 
proffered wage each year, beginning with the year of a petition's priority date. See generally 6 USCIS 
Policy Manual E.(4)(B), www.uscis.gov/policy-manual. If a petitioner did not annually pay the full 
proffered wage or did not pay a beneficiary at all, USCIS considers whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and the wages paid. Id. If net income and net current assets are insufficient, the 
Agency may consider other factors affecting a petitioner's ability to pay a proffered wage. Matter of 
Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 1 
The Petitioner's labor certification application states the proffered wage of the offered position of 
registered nurse as $73,133 a year. The petition's priority date is May 28, 2021, the date of the 
petition's filing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
As the Director found, USCIS records indicate the Petitioner's filing of a Form 1-140, Petition for 
Alien Worker, for another beneficiary that was pending or approved as of this petition's May 28, 2021 
priority date. 2 The company must therefore demonstrate its ability to pay the combined proffered 
wages of this and its other petition. 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, the petitioner had not 
demonstrated its ability to pay the combined proffered wages of multiple petitions); see also 6 USCIS 
Policy Manual E.(4)(C)(2) n.25 ("A substantially increased total labor expense of multiple 
beneficiaries may potentially impact the petitioner's ability to continue to pay existing employees.") 3 
1 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., River 
St. Donuts, Inc. v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Rizvi v. Dep 't of Homeland Sec., 37 F. Supp. 3d 870, 
883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x. 292 (5th Cir. 20 15) 
2 USCIS records identify the other petition's receipt number as 
3 The Petitioner need not demonstrate its ability to pay proffered wages of petitions that it withdrew or that USCIS rejected, 
denied, or revoked. See generally 6 USC1S Policy Manual E.(4 )(C)(2). The Petitioner also need not demonstrate its ability 
to pay proffered wages before the priority dates of their corresponding petitions or after the dates their corresponding 
beneficiaries obtain permanent residence. Id. 
2 
The Petitioner indicated that the other petition's proffered wage is also $73,133 a year. Thus, the 
company must demonstrate its ability to pay combined proffered wages of $146,266 a year. 
The Petitioner submitted regulatory required evidence of its ability to pay in 2021: a copy of its federal 
income tax return. At the time of the Petitioner's response to the Director's most recent request for 
additional evidence (RFE), required evidence of the company's ability to pay in 2022 was not yet 
available. Thus, for purposes of this decision, we will consider the company's ability to pay the 
proffered wage only in 2021, the year of the petition's priority date. 4 
As evidence of its payment of wages to the Beneficiary, the Petitioner submitted copies of payroll 
records from August 15, 2022 through October 23, 2022. The record lacks evidence of any payments 
the company made to her in 2021. Thus, based solely on wages paid, the company has not 
demonstrated its ability to pay the proffered wage in 2021. 
The Petitioner's 2021 tax return reflects net income of-$402,280 and net current assets of -$54,192. 
Therefore, based on net income and net current assets, the record also does not demonstrate the 
company's ability to pay the proffered wage. 
On appeal, the Petitioner contends that the Director should have considered other factors in 
determining the company's ability to pay. We agree. As previously indicated, users may consider 
additional factors outlined in Sonegawa, including: the number of years a petitioner has conducted 
business; its number of employees; growth of its business; its reputation in its industry; and a 
beneficiary's replacement of a current employee or outsourced services. Matter ofSonegawa, 12 r&N 
Dec. at 614-15. 
The record shows that the Petitioner has conducted business since 2012 and, as of the third quarter of 
2022, employed 33 people. Copies of the company's federal income tax returns indicate that, from 
2020 to 2021, its annual gross income and amounts of salaries and wages paid increased. 
Unlike the petitioner in Sonegawa, however, the Petitioner has not established its possession of a good 
business reputation in its industry, and the company must demonstrate its ability to pay the combined 
proffered wages of multiple petitions. Also, the record does not indicate the Beneficiary's proposed 
replacement of a current employee or outsourced service. Thus, on balance, the factors stated in 
Sonegawa do not demonstrate the Petitioner's ability to pay the proffered wage. 
The Petitioner notes that an employer may demonstrate its ability to pay by showing that it has paid a 
beneficiary at least the offered position's proffered wage. See generally 6 USCIS Policy Manual 
E.(4)(B)(l). The company contends that it pays the Beneficiary more than the offered job's proffered 
wage. The 2022 payroll records indicate that the Petitioner paid her $50 an hour. 
users policy, however, requires a petitioner's total payments to a beneficiary in a relevant year to 
equal or exceed the proffered wage. The Agency's policy manual states: "If the petitioner establishes 
4 In any future filings in this matter, however, the Petitioner must also demonstrate its ability to pay the proffered wage in 
2022. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its ability to pay "at the time the priority date is 
established and continuing until the beneficiary obtains lawful permanent residence"). 
3 
by documentary evidence that it has paid the beneficiary a salary equal to or greater than the proffered 
wage for each year from the priority date, the evidence may establish the petitioner's ability to pay." 
6 USCIS Policy Manual E.(4)(B)(l). Otherwise, petitioners unable to pay proffered wages over full 
years could nevertheless demonstrate their abilities to pay by paying proffered wages to beneficiaries 
over short periods. 
The Petitioner's payroll records show that it paid the Beneficiary a total of $11,100 in 2022. On 
appeal, the company also submits a copy of her 2022 IRS Form W-2, Wage and Tax Statement, 
indicating that the company paid her a total of $26,606.25 that year. 5 Both amounts fall below the 
annual proffered wage of $73,133. Further, the 2022 payments do not establish the company's ability 
to pay in 2021, the year of the petition's priority date. Thus, evidence of the Petitioner's payments to 
the Beneficiary do not establish its ability to pay the proffered wage. 
Submitting copies of bank account statements on appeal, the Petitioner asserts that it had more than 
$195,000 in cash in 2021 with which it could have paid the combined proffered wages. But the 
Director's most recent RFE, dated September 12, 2022, specifically invited the company to submit 
additional evidence of its ability to pay, including "[y]our bank account records." The Petitioner has 
not demonstrated the unavailability of its 2021 bank records at the time of its RFE response. As the 
company previously received notice of the evidence and a reasonable opportunity to submit it, we 
decline to consider it on appeal. See Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988). 
Even if we did consider the bank records on appeal, the Petitioner has not explained how they would 
demonstrate its ability to pay the proffered wage in 2021. The company asserts its possession of more 
than $195,000 in cash that year. The bank records include monthly statements for a checking account 
in one bank and a deposit account in another. But the 2021 year-end balances for the checking account 
($15,737.68) and the deposit account ($8,722.63) total only $24,460.31. Also, Schedule L of the 
Petitioner's 2021 IRS Form 1120-S, U.S. Income Tax Return for an S Corporation, indicates that the 
company ended the year with only $41,044 in cash, which we already considered in calculating the 
Petitioner's net current assets. A petitioner must resolve inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). The 
Petitioner has not explained the cash amount discrepancies of record. The record therefore would not 
demonstrate the company's possession of sufficient cash available to pay the combined proffered 
wages in 2021. Also, the company has not demonstrated that the cash indicated in the bank statements 
represents additional funds that we did not already consider in calculating the company's net current 
assets that year. 
The Petitioner also contends that the COVID-19 pandemic affected its ability to pay the proffered 
wage. The company states that, as a healthcare provider, it "relied heavily on governmental invoicing 
and reimbursement payments, which was limited during the [pandemic]." The company submits 
copies of news articles about the pandemic's economic effects on the home healthcare industry. 
The Director's RFE did not invite the Petitioner to submit non-financial documentation, such as news 
articles. We will therefore consider the pandemic articles on appeal. The record, however, lacks 
5 At the time of the Petitioner's response to the Director's most recent RFE, the 2022 Form W-2 was not yet available. We 
will therefore consider the evidence on appeal. 
4 
sufficient, evidence of how the pandemic specifically affected the Petitioner. The company neither 
submitted documentary evidence of how claimed declines in government reimbursements hurt it nor 
provided evidence of its pre-pandemic finances. The articles therefore do not demonstrate that the 
pandemic economically harmed the company or merit excusing the insufficient evidence of its ability 
to pay in 2021. 
For the foregoing reasons, the Petitioner has not demonstrated its ability to pay the offered position's 
proffered wage. We will therefore affirm the petition's denial. 
III. CONCLUSION 
The Petitioner has not demonstrated its required ability to pay the offered position's proffered wage. 
We will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
5