dismissed EB-3 Case: Nursing

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 provider of healthcare staffing services, seeks to permanently 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 category allows a U.S. employer to 
sponsor a worker with at least 2 years of training or experience for lawful permanent resident status. 
On May 3, 2016, the Director, Texas Service Center, denied the petition. The Director concluded 
that the record did not establish the Petitioner's ability to pay the proffered wage. 
The matter is now before us on appeal. The Petitioner asserts that the Director did not explain his 
rejection of a letter from its chief financial officer (CFO) as proof of its ability to pay and did not 
consider net incomes generated by its employee nurses. The record does not establish the 
Petitioner's ability to pay multiple pending beneficiaries. Therefore, upon de novo review, 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 of the 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. !d. 
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 filed directly with USCJS 
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. 
If the Schedule A occupation is a professional nurse, a petitioner must establish that the beneficiary 
has a Certificate froni 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 Woodcrqft 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 o.fKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In the instant case, the priority date is October 15,2015. Therefore, the Petitioner must establish that 
all eligibility requirements for the petition have been satisfied from October 15, 2015, onward. 
B. The Petitioner's 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. Jd. 
. 
The proffered wage of the offered position of registered nurse is $55,640 per year. 
The record before the Director closed in April 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 
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Matter of A-H-P-, LLC 
proffered wage in 2015 was not then available, the Director considered the Petitioner's ability to pay 
in 2014. On appeal, the Petitioner submits evidence of its ability to pay in 2015. We will therefore 
consider the Petitioner's ability to pay from 2015, the year of the petition's priority date. 
' 
In determining ability to pay, we first examine whether a petitioner paid a beneficiary the full 
p~offered wage each year from a petition's priority date. If a record lacks evidence of a petitioner's 
annl!al 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 wage. 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).1 
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 submits copies of consolidated audited financial statements for 2015. The 
consolidated audited financial statements reflect a net income amount of $403,039, and a net current 
asset amount of $748,443. Both of these amounts exceed the annual proffered wage of $55,640. 
However, the notes to the consolidated financial statements indicate that the statements "include the 
accounts of a non-profit 50l(c)(4) organization formed in 2014, whose financial support is largely 
provided by [the Petitioner]." The Petitioner, an LLC, is a separate and distinct legal entity. 
Therefore, the activities of other enterprises cannot be considered in determining the petitioning 
LLC'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 court in Sitar v. Ashcroft, 2003 WL 22203713 (D.Mass. 
Sept. 18, 2003) stated, "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." 
The Petitioner also submits a copy of its IRS Form 1065, U.S. Return of Partnership Income, for 
2015, which shows a net loss of -$1,112,272 and net current liabilities of -$966,929.2 The net loss 
and net current liabilities reflected in the 2015 tax return do not exceed the annual proffered wage. 
1 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 Ill, 118 (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. 20 15). 
2 
The Petitioner's CPA indicates in an affidavit dated November 13, 2015, that "[b]ecause the audited tax returns and 
partnership tax returns do not serve the same purpose, they do not necessarily reflect identical facts or figures with 
respect to a company's financial position." However, this statement does not specifically explain why the net income 
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Matter of A-H-P-, LLC 
Further, as stated in the Director's RFE and decision, USCIS records indicate the Petitioner's filing 
of multiple Forms 1-140, Immigrant Petitions for Alien Worker. From the instant petition's priority 
date of October 15, 2015, until the Director issued the RFE on March 8, 2016, the records indicate 
the Petitioner's filing of at ~east 227 other petitions. 
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). 
In the RFE, the Director requested the Petitioner to provide the proffered wages of its other pending 
petitiOns. 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 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 provides information about 44 beneficiaries who it states began working for it 
in 2016. The Petitioner states their total annual proffered wages as $2,222,147.20. As proof of its 
payments to the beneficiaries, the Petitioner provides copies of their payroll records for a 2-week period 
from April24 through May 7, 2016. 
The payroll records support the Petitioner's assertion that it began paying the 44 beneficiaries their 
proffered wages upon their arrivals at the company in 2016. But the record does not contain 
information about the 227 beneficiaries of petitions that the Petitioner filed between October 15, 2015, 
and March 8, 2016.3 Without this information, the record does not establish the Petitioner's ability to 
pay the proffered wage. 
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, which claims to employ more than 300 people, notes that 
and net current asset figures on the audited financial statements and tax returns are significantly different for the same 
year using the same accounting method. If the Petitioner pursues this matter further, it must specifically explain the 
reason(s) for the differences. 
3 
The record indicates that the Petitioner petitioned for the 44 beneficiaries before the instant petition's priority date of 
October I 5, 2015. And from March 9, 2016, onward, the Petitioner has filed approximately 540 Form 1-140 petitions. 
4 
(b)(6)
Matter of A-H-P-, LLC 
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 Petitioner'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, 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. § 103.3(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. 
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 Petitioner'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. USCJS, 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.4 The Petitioner asserts that it incurs an 
4 
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). 
5 
Matter of A-H-P-, LLC 
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 ofCal., 14 
I&N Dec. 190 (Reg'l Comm'r 1972)); see a~so Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
2010). The Petitioner must support assertions with relevant, probative, and credible evidence. See 
Matter ofChawathe, 25 I&N Dec. at 376. 
Further, the record does not establish the Petitioner's ability to pay the combined proffered wages of all 
of its pending beneficiaries. The Petitioner has not established that its 2015 annual amounts of net 
income or net current assets equal or exceed the total annual proffered wages of its pending petitions. 
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, 
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. 
From 2014 to 2015, the record also indicates increases in its number of employees and its annual 
amounts of gross revenues and wages paid. In addition, the record contains evidence of the 
Petitioner's reputation as a fast-growing company. 
Unlike in Sonegawa, however, the record does not indicate the Petitioner's incurrence of 
uncharacteristic business expenditures or losses. The record also does not indicate that the 
Beneficiary will replace an employee or outsourced service. Also unlike the petitioner in Sonegawa, 
6 
Matter of A-H-P-, LLC 
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. 
II. CONCLUSION 
The record does not establish the Petitioner's ability to pay the proffered wage from the petition's 
priority date onward. 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 o.fOtiende, 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# 13415 (AAO Jan. 30, 2017)