dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
MATTER OF G-H-P-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 21.2017 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a provider of healthcare personneL seeks to employ the Beneficiary as a registered 
nurse. It requests her classification 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-r 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 vvages of this and 
other petitions that remained concurrently pending or approved. 
On appeal. the Petitioner asserts that, because its beneficiaries remain outside the United States and 
would not all arrive to work for it at the same time. it would generate sufficient income to pay their 
wages. 1 
Upon de nom review. we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration usually follows a three-step process. First. an employer applies for 
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 a foreign national to permanently till an offered 
position. an employer then must submit the ce11itication with an immigrant visa petition to U.S. 
Citizenship and Immigration Services (USCTS). 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. adjustment of status in the United States. See section 245 of the Act 8 U.S.C. § 1255. 
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On the Form 1-2908, Notice of Appeal or Motion. the Petitioner stated that it would submit a written brief or additional 
evidence within 30 days of the appeal"s filing. To date. we have not received any further submissions ti·om the 
Petitioner. 
Matter ofG-H-P-
The DOL, however, has determined that the United States lacks able, willing. qualified, and available 
nurses, and that employment of foreign nationals in this occupation will not hurt the wages and \vorking 
conditions of U.S. workers with similar jobs. 20 C.F.R. § 656.5. With testing of U.S. labor markets 
unnecessary, the DOL has authorized USCIS to adjudicate certification applications for nurses. 
20 C.F.R. § 656.15(a). Because this case involves a '"Schedule A'" occupation. USCIS rules on both the 
petition and the labor certification application. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition· s 
priority date 2 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. !d. 
As of the appeal's tiling, required evidence of the Petitioner"s ability to pay in 2017 was not yet 
available. We will therefore consider its ability to pay only in 2016, the year of the petition's 
priority date. 
In determining ability to pay. USCIS first examines whether a petitioner paid a beneficiary the full 
proffered wage each year from a petition's priority date. If a petitioner did not annually pay the 
protlered wage, USCIS considers whether it generated annual amounts of net income or net current 
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. S'ee Matter ofSoneKmm. 12 I&N Dec. 612.614-15 (Reg'l Comm·r 1967). 3 
Here, the accompanying labor certification application states the proffered wage of the offered 
position of registered nurse as $68,224 a year. The Petitioner did not submit evidence that it paid 
wages to the Beneficiary in 2016. Therefore, based on payments to the Beneficiary. the Petitioner 
has not demonstrated its ability to pay the proffered wage. 
The Petitioner's audited financial statements for 2016 reflect net income of$484.124 and net current 
assets of $621,719. Both of these amounts exceed the annual proffered wage of $68.224. The 
record therefore appears to demonstrate the Petitioner's ability to pay the proflered wage. However. 
as the Director found. USCIS records indicate the Petitioner's tiling of multiple Forms 1-140. 
Immigrant Petitions for Alien Workers. A petitioner must demonstrate its ability to pay the 
proffered wage of each petition it tiles until a beneficiary obtains lawful permanent residence. 
"This petition's priority date is November 4. 2016. its filing date. See 8 C.F.R. ~ 204.5(d) (explaining how to determine 
a petition· s priority date). 
' Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. Sec. e.g .. 
River St. Donuts, LLC v. l'v'apolitano, 558 F.3d Ill, 118 (I st Cir. 2009): Estrada-Hcmande:: \'. Holder, I 08 F. Supp. 3d 
936, 942-43 (S.D. Cal. 20 15): Riv::i \'. Dep 't of Homeland S'ec.. 37 F. Supp. 3d 870. 883-84 (S.D. Tex. 20 14). aff'd. 627 
Fed. App'x. 292 (5th Cir. 2015). 
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Matter ofG-H-P-
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 other petitions that were field or pending after its priority date. 
The Petitioner must demonstrate its ability to pay the combined prolfered wages from this petition ·s 
priority date until the beneficiaries of the other petitions obtained lawful permanent residence. .',"ee 
Patel v. Johnson. 2 F. Supp. 3d 108. 124 (D. Mass. 2014) (affirming a petition's revocation where. 
as of the filing's grant. the petitioner did not demonstrate its ability to pay the combined proffered 
wages of multiple pending and approved petitions). 
As the Director requested. the Petitioner provided information about petitions it filed from this 
petition's priority date of November 4. 2016, through the date of the Director's request March 8. 
2017. The Petitioner submitted the requested information and additional information regarding other 
petitions that were tiled or pending in 2016. the priority date year. According to this information. 
the Petitioner's total wage burden for 2016 was more than $3.5 million. 4 The Petitioner stated that it 
did not pay wages to any of the beneficiaries. 
The total proffered wage amount exceeds both the Petitioner's amounts of net income and net 
current assets in 2016. Thus. based on its net income and net current assets. the Petitioner has not 
demonstrated its ability to pay to the combined proffered wages of all applicable beneficiaries. 
As previously indicated. we may consider factors beyond the Petitioner's net income and net current 
assets in determining its ability to pay. Under Sonegawa. we may consider: the length of time the 
Petitioner has conducted business: its number of employees: the grmv1h of its business: its reputation 
in its industry; its incurrence of uncharacteristic losses or expenses: the Beneficiary's replacement of 
a current employee or outsourced service: or other evidence of its ability to pay the proffered wage. 
See Matter olSonegmm. 12 I&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuous business operations since 1991 and its 
employment of more than 400 people. Audited financial statements also indicate consistent growth 
in the Petitioner's annual revenues from 2014 through 2016. Unlike the petitioner in Sonegawa, 
however, the record does not establish the Petitioner's possession of an outstanding reputation in its 
industry. or its incurrence of uncharacteristic losses or expenses. The record also does not indicate 
the Beneficiary's replacement of a current employee or outsourced service. Also unlike in 
Sonegawa. the Petitioner here must demonstrate its ability to pay combined proffered wages of 
multiple petitions. Thus. a totality of the Sonegmt·a factors does not establish the Petitioner's ability 
to pay the proffered wage. 
On appeaL the Petitioner indicates that many of its beneficiaries remain outside the United States. 
waiting to obtain immigrant visas. The Petitioner asserts: .. Since the beneficiaries petitioned for by 
~ USCIS records indicate that the Petitioner must demonstrate its ability to pay the combined proffered wages of 
additional petitions that were filed or pending after this petition's priority date. In any future filings in this matter. the 
Petitioner must demonstrate its ability to pay the combined proffered wages of such additional petitions. including those 
filed before November 4. 20 I 6. and after March 8, 2017. 
Matter (~lG-H-P-
the petitioner would not all arrive [in the United States] at the same time. the petitioner will be able 
to generate the necessary income to meet l their] wages.'' Although. the beneficiaries may arrive at 
different times. immigration regulations and case law require it to demonstrate its continuing ability 
to pay proffered wages from petitions· priority dates until beneficiaries obtain lawful permanent 
residence. See 8 C .F .R. § 204.5(g)(2 ): see also /vfatter of' Great Wall. 16 I&N Dec, 142. 145 (Acting 
Reg'l Comm'r 1977). Therefore. in cases where beneficiaries remain outside the United States. the 
Petitioner must demonstrate its ability to pay protTered wages even before the foreign nationals 
begin working for it. Here. the Petitioner has not done so. 
For the foregoing reasons. the record does not establish the Petitioner's ability to pay the proffered 
wage. 
III. CONCLUSION 
The Petitioner has not demonstrated its continuing ability to pay the proffered wage from the 
petition's priority date onward. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Matter olG-H-P-. ID# 945524 (AAO Dec. 21. 20 17) 
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