dismissed EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 17401852 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for a Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: July 7, 2021 
The Petitioner, a nursing services provider, 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. 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 petition was initially approved. However, the Director of the Nebraska Service Center 
subsequently revoked the approval on the ground that the Petitioner failed to establish its continuing 
ability to pay the proffered wage of the instant Beneficiary and the proffered wages of multiple 
additional beneficiaries of other Form 1-140 petitions from the priority date of this petition onward. 
On appeal the Petitioner submits a brief and additional documentation, and asserts that the evidence 
establishes its ability to pay the proffered wages of the instant Beneficiary and all of its other 1-140 
beneficiaries from the priority date of this petition onward. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the requested benefit. 
See section 291 of the Act, 8 U.S.C. § 1361. 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 (Form 
1-140) is filed directly with USCIS with an uncertified ETA 9089 in duplicate . See 8 C.F.R. § 204.5(a)(2); 
see also 20 C.F.R. § 656.15. If USCIS approves the petition, the foreign national 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. 
Section 205 of the Act 8 U.S.C. § 1155, provides that the Secretary of Homeland Security (DHS) may 
"for good and sufficient cause, revoke the approval of any petition." By regulation this revocation 
authority is delegated to any USCIS officer who is authorized to approve an immigrant visa petition 
"when the necessity for the revocation comes to the attention of [USCIS]." 8 C.F.R. § 205.2(a). 
II. PROCEDURAL HISTORY 
The I-140 petition was filed on January 8, 2018, and approved on March 26, 2019. The Director issued 
a notice of intent to revoke (NOIR) on March 23, 2020, to which the Petitioner responded with a brief 
and additional documentation. On October 16, 2020, the Director revoked the petition's approval, 
determining that the Petitioner's response to the NOIR did not provide all of the evidence requested 
to establish its ability to meet its proffered wage obligations not only to the instant Beneficiary but to 
all of its other I-140 beneficiaries as well. The Petitioner filed a timely appeal. 
III. ANALYSIS 
To be eligible for the classification it requests for a beneficiary, a petitioner must establish that it has 
the ability to pay the proffered wage stated on the ETA 9089. As provided in the regulation at 8 C.F.R. 
§ 204.5(g)(2): 
The petitioner must demonstrate this ability at the time the priority date is established 
and continuing until the beneficiary obtains lawful permanent residence. 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]. 
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the 
proffered wage as of the petition's priority date, 1 which in this case is January 8, 2018. The proffered 
wage as stated on the ETA 9089 is $60,000 per year. 
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. A 
petitioner's submission of documentary evidence that it employed the beneficiary at a salary equal to 
1 The "priority date" of an employment-based immigrant petition is ordinarily the date the underlying ETA 9089 is filed 
with the DOL. See 8 C.F.R. § 204.S(d). Since this petition is for a Schedule A occupation, however, the ETA 9089 is not 
ce1iified by the DOL and the priority date of the petition is the date the Form 1-140 along with the unce11ified ETA 9089 
is filed with USCIS. 
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or greater than the proffered wage for the time period in question, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the 
petitioner's ability to pay the proffered wage. 
The documentation of record indicates that the Beneficiary began working for the Petitioner in a part­
time capacity in March 2018 and continued to work in a part-time capacity at least through March 
2020. The Petitioner has submitted copies of the Forms W-2, Wage and Tax Statements, it issued to 
the Beneficiary for the years 2018 and 2019, which show that the Beneficiary's total pay was 
$10,707.66 in 2018 and $14,188.38 in 2019. Since both of these figures are well below the proffered 
wage of $60,000 per year, the Petitioner has not established its continuing ability to pay the 
Beneficiary's proffered wage from the priority date of January 8, 2018, onward based on the wages it 
actually paid. 
If a petitioner does not establish that it has paid the beneficiary an amount equal to or above the 
proffered wage from the priority date onward, USCIS will examine the net income and net current 
assets figures recorded in the petitioner's federal income tax retum(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, the petitioner would generally be considered able to pay the proffered wage during 
that year. The record includes copies of the Petitioner's federal income tax returns, Forms l 120S, for 
the years 2018 and 2019, which show that in 2018 it had net income of $932,350 2 and net current 
assets of $1,350,773, 3 and in 2019 it had net income of $943,312 and net current assets of $1,377,578. 
Each of these figures exceeded the proffered wage to the Beneficiary. 
However, when a petitioner has filed multiple 1-140 petitions, it must establish that its job offer is 
realistic not only for the instant beneficiary, but also for the beneficiaries of its other petitions. A 
petitioner's ability to pay the proffered wage is an essential element in evaluating whether a job offer 
is realistic. See Matter of Great Wall, 16 l&N Dec. 142 (Acting Reg'l Comm'r 1977). Accordingly, 
a petitioner must demonstrate its ability to pay the combined proffered wages of the instant beneficiary 
and every other 1-140 beneficiary, for each year the petitioner does not pay the instant beneficiary's 
full proffered wage, from the priority date of the instant petition until each 1-140 beneficiary obtains 
lawful permanent resident status. 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). 4 
2 If an S corporation, like the Petitioner, has income exclusively from a trade or business, USCIS considers its net income 
(or loss) to be the figure for "Ordinary business income (loss)" on page 1, line 21, of the Form l 120S. However, if there 
are relevant entries for additional income, credits, deductions or other adjustments from sources other than a trade or 
business, they are reported on Schedule K of the Form 1120S, and the corporation's net income or loss will be found in 
line 18 of Schedule K ("Income/loss reconciliation"). 
3 For a corporation net current assets (or liabilities) are the difference between its current assets, entered on lines 1-6 of 
Schedule L, and its current liabilities, entered on lines 16-18 of Schedule L. 
4 The Petitioner's ability to pay the proffered 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. 
3 
In the NOIR the Director advised the Petitioner to submit a list of its I-140 petitions that were pending 
or approved as of: or filed after, the priority date of the instant petition, with the name and proffered 
wage of each beneficiary, the priority date and status of each petition, and indicating whether each 
beneficiary has obtained lawful permanent residence (LPR). The Director also requested documentary 
evidence of wages paid to each I-140 beneficiary after the priority date of this petition or their own ( as 
applicable), as well as documentary evidence of the Petitioner's other employees and the wages paid 
to them. 
In response to the NOIR the Petitioner submitted some of the evidence requested by the Director, 
including a spreadsheet listing 347 I-140 petitions filed from 2014 to January 8, 2018 (the priority date 
of the instant petition), with the name and proffered wage of each beneficiary and the priority date and 
status of each petition, but only scattered information regarding the status of each beneficiary. The 
Petitioner noted that certain beneficiaries had gained LPR, but the vast majority of beneficiaries had 
no such notation, which would appear to indicate that they did not have LPR status. The Petitioner 
also provided copies of 17 5 Forms W-2 issued to employed I-140 beneficiaries for 2018 ( 41) and 2019 
(134) which showed that the "wages, tips, other compensation" (box 1 of the form) paid to almost all 
of the beneficiaries was only a fraction (usually quite small) of their proffered wage. The small 
amounts of wages paid would seem to indicate that most of the I-140 beneficiaries were only part­
time employees. Most importantly, however, the Petitioner provided no information or documentary 
evidence concerning additional I-140 petitions that were filed after the priority date of the instant 
petition, including its proffered wage obligations to those beneficiaries. Based on its NOIR response, 
therefore, it was not possible to determine the Petitioner's total proffered wage obligation to its I-140 
beneficiaries. 
In his decision revoking the petition's approval the Director discussed the evidentiary deficiencies of 
the Petitioner's response to the NOIR and concluded that the Petitioner did not establish its ability to 
pay the proffered wages of every beneficiary of a pending ( or approved) petition from the applicable 
priority date onward. The Director also determined that the Petitioner did not establish its continuing 
ability to pay all of its proffered wage obligations to I-140 beneficiaries based on the totality of its 
circumstances, as in Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). Finally, the 
Petitioner's claim that it could meet all of its proffered wage obligations based on its expectation of 
increased business due to the nation's nursing shortage was rejected by the Director for lack of 
supporting evidence. 
On appeal the Petitioner submits a second spreadsheet listing 701 additional I-140 petitions it filed 
after the priority date of the instant petition, January 8, 2018. Like the first spreadsheet filed in 
response to the NOIR, listing 347 I-140 petitions filed before the priority date, the second spreadsheet 
lists the name and proffered wage of each beneficiary, as well as the priority date and status of each 
petition. The second spreadsheet also specifically identifies which of the beneficiaries gained LPR 
( only a small percentage) and the date such status was conferred. Importantly, however, the second 
spreadsheet (like the first) provides no information about the wages paid to the individual I-140 
beneficiaries who were employed by the Petitioner after January 8, 2018. As far as the record shows, 
therefore, the wages paid to the Petitioner's employed I-140 beneficiaries have amounted to only a 
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small percentage of its overall proffered wage obligations from the priority date of January 8, 2018, 
onward. 
The Petitioner did not tally its total proffered wage obligations on either of its spreadsheets. A 
broadscale review of the I-140 petitions listed on the two spreadsheets indicates that the Beneficiary's 
proffered wage of $60,000 per year is roughly average among the more than 1,000 proffered wages 
listed. Applying this dollar figure to the vast majority of pending and approved I-140 petitions whose 
beneficiaries do not have LPR status results in a total proffered wage obligation of roughly $60 million, 
far in excess of the Petitioner's net income and net current assets figures on its 2018 and 2019 federal 
income tax returns. The record includes copies of the Petitioner's Forms 941 (Employer's Quarterly 
Federal Tax Returns) for 2018, 2019, and the first three quarter of 2020, which the Petitioner cites as 
evidence of its "consistent and ongoing payment of wages to the Beneficiaries." The Forms 941 would 
apply to all of the Petitioner's employees, however, and the Petitioner has not distinguished which of 
the listed employees are I-140 beneficiaries and which are not. Moreover, the total wages paid, as 
recorded on the Forms 941, were $18,194,511 in 2018, $19,028,221 in 2019, and $17,244,621 in the 
first three quarters of 2020. All of these figures were tens of millions of dollars below the Petitioner's 
total proffered wage obligations to its I-140 beneficiaries as listed on the spreadsheets of its I-140 
petitions. 
The Petitioner submits a statement from its chief financial officer (CFO) asserting that it paid salaries 
and housing allowances to its nurse employees totaling more than $43 million in 2017 and $39 million 
in 2018. The housing allowances, though reflected on the Petitioner's federal income tax returns, were 
not included in the employee compensation figures on the Petitioner's quarterly federal income tax 
returns. As previously discussed, the Petitioner's quarterly federal income tax returns for 2018 
recorded total employee compensation of only $18.2 million that year. Nor were any housing 
allowances recorded on any of the 2018 and 2019 wage and tax statements for the I-140 beneficiaries. 
Even if we consider the housing allowances a form of compensation to the Petitioner's nurses, the 
total salaries and housing allowances in 2018 still fell far short of the Petitioner's total proffered wage 
obligation to its I-140 beneficiaries - approximately $60 million, as we previously estimated. The 
CFO letter claims that the Petitioner's business model - whereby it makes a profit from every nurse it 
employs by charging its client hospitals and healthcare facilities sufficient amounts to cover the wages 
of the registered nurses it supplies and earn a profit - demonstrates its ability to pay the proffered 
wages of all its I-140 beneficiaries. As previously discussed, however, the Forms W-2 for the I-140 
beneficiaries in 2018 and 2019 indicate that most of them were paid only a fraction of their proffered 
wages, which appears to indicate that most of them were only part-time employees. Therefore, the 
business model touted by the CFO does not demonstrate the Petitioner's ability to pay the full proffered 
wages of all its I-140 beneficiaries. 
The Petitioner asserts that it has a credit line exceeding $9 million, but has not identified the institution 
providing the credit line, has not provided any details about the credit line, and the one document 
submitted as proof thereof bears no discernible relationship to any credit line. The Petitioner also 
submits a financial statement for the first half of 2020. This document is not audited, however, and 
therefore does not comport with the regulatory requirement of an "audited financial statement." See 
8 C.F.R. § 204.5(g)(2). Accordingly, it has little evidentiary weight. 
5 
As the Petitioner points out, we may consider the totality of its circumstances, consistent with Matter 
of Sonegawa, in determining its ability to pay the proffered wages of all its I-140 beneficiaries. The 
Petitioner's appeal brief asserts that the Petitioner "routinely expends more than $3 million in wages 
annually for its in-house staff and more than $60 million in wages, housing and other benefits for its 
nurses." The latter figure of $60 million evidently derives from the Petitioner's 2019 federal income 
tax return (in particular, Form 1125-A, Cost of Goods Sold), and was smaller in prior years, as 
recorded on the Petitioner's 2018, 2017, and 2016 federal income tax returns. The $60 million of 
compensation to nurses in 2019, however, does not demonstrate the Petitioner's ability to pay the full 
proffered wages of all its I-140 beneficiaries that year. As previously discussed, the wage and tax 
statements in the record show that almost all of the employed I-140 beneficiaries in 2019 ( as in 2018) 
were paid only a fraction of their proffered wages. Moreover, the Petitioner has not specifically 
identified its I-140 beneficiaries who were not employed at all in 2019, or 2018, to whom no wages 
were paid to reduce the full proffered wage obligation. The Petitioner submits additional materials as 
evidence that it has grown considerably over the years and that it is well respected within the industry. 
While we do not discount these materials entirely, they do not overcome the evidentiary deficiencies 
we have discussed concerning the Petitioner's proffered wage obligations overall. In sum, the 
Petitioner has not established its ability to pay the proffered wages of all its I-140 beneficiaries based 
on the totality of its circumstances. 
III. CONCLUSION 
The Petitioner has not provided a definitive compilation in one comprehensive document of its total 
proffered wage obligations to all of its I-140 beneficiaries since January 8, 2018, and the proffered 
wages it has paid to its employed I-140 beneficiaries since January 8, 2018, along with a summation 
and complete supporting evidence. Without such data it is not possible to calculate the difference 
between the Petitioner's total proffered wage obligations to its I-140 beneficiaries in 2018, 2019, and 
succeeding years, and the wages it actually paid to those individuals in each of those years. That 
difference between total proffered wages and wages actually paid, allowing for the exceptions 
identified in footnote 4 of this decision, is the amount the Petitioner must demonstrate that it has 
sufficient financial resources to pay each year. 
As previously stated, it is the petitioner's burden in visa petition proceedings to establish eligibility 
for the immigration benefit sought. See Section 291 of the Act, 8 U.S.C. § 1361. The Petitioner has 
not met that burden in this case. It has not established its ability to meet its proffered wage obligations 
to all of its I-140 beneficiaries from the priority date of January 8, 2018, onward. The appeal will be 
dismissed for this reason. 
ORDER: The appeal is dismissed. 
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