dismissed EB-3 Case: Nursing

U.S. Citizenship · 
and Immigration 
Services · 
MATTER OF W-S-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of temporary nurses to hospitals and other medical facilities, seeks to 
employ the Beneficiary as a registered nurse. It requests her classification under the third-preference 
immigrant category as a skilled worker. 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" category allows a 
U.S. business to sponsor a foreign national for lawful permanent resident status to work in a job 
requiring at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the combined proffered wages of this and 
other petitions .. 
On appeal, the Petitioner submits additional evidence. It asserts that, by compensating the 
· Beneficiary an amount greater than the position's prorated proffered wage, it demonstrated its ability 
to pay. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker typically follows a three-step process. To permanently fill a job in 
the United States with a foreign national, an employer first obtains certification from the U.S. 
Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § l l 82(a)(5)(A)(i). If 
the DOL certifies a position, an employer then submits the labor certification with an immigrant visa 
petition to U.S. Citizenship and Immigration Services (USCIS). 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. 
The DOL, however, has already determined that the United States lacks abl_e, willing, qualified, and 
available nurses and that employment of foreign nationals in this "Schedule A" occupation will not hurt 
the wages and working conditions· of U.S. workers with similar jobs. 20 C.F.R. § 656.5. Thus, the 
DOL has authorized USCIS to adjudicate labor cei1ification applications· for nurses. 20 C.F.R. 
Matter of W-S-S- Inc. 
§ 656.15(a). Here, therefore, USCIS not only rules on the petition, but also oh its accompanying labor 
certification application. See 20 C.F.R. § 656.15( e) (describing a Schedule A labor certification 
determination by USCIS as "conclusive and final"). 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, 
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 a petitioner's annual reports, federal 
tax returns, or audited financial statements. Id 
· In determining ability to pay, USCIS considers 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 full 
wage, USCiS examines whether it generated annual amounts of net income or net current assets 
sufficient to pay any differences between the annual proffered wage and the actual wages paid. If 
net income and riet current assets are insufficient, USCIS may also consider other factors affecting a 
petitioner's ability to pay. See Matter qfSonegawa, 12 l&N Dec. 612 (Reg'l Comm'r 1967). 1 
Here, the labor certification states the proffered wage of the offered position of registered nurse as 
$62,275 a year. The petition's priority date is June 5, 2017, the date of its filing. See 8 C.F.R. 
§ 204.5( d) ( explaining how to determine a petition's priority date). As of this appeal's filing, 
required evidence of the Petitioner's ability to pay the proffered wage in 2018 was not yet available. 
We will therefore consider the Petitioner's ability to pay only in 2017, the year of the petition's 
priority date. 
The Petitioner submitted evidence that it paid the Beneficiary in 2017. A copy of an IRS Form W-2, 
Wage and Tax Statement, for that year indicates that she received wages of $19,098.21. That 
amount does not equal or exceed the annual proffered wage of $62,275. Based on wages paid, the 
record therefore does not establish the Petitioner's ability to pay the proffered wage. Nevertheless, 
we credit the Petitioner's payment to the Beneficiary. It need only demonstrate its ability to pay the 
difference between the annual proffered wage and the actual wages it paid her m 2017, or 
$43,176.79. . 
On appeal, the Petitioner asserts that its 2017 payments to the Beneficiary establish its ability to pay 
the proffered wage. A petitioner must demonstrate its ability to pay "at the time the priority date is 
established." 8 C.F.R. § 204.5(g)(2). The Petitioner thus argues that it need only show its ability to 
pay $36,327.08, the prorated portion of the annual proffered wage from the petition's priority date of 
June 5, 2017, until the end of that year. In addition to the $19,098.21 in wages the Petitioner paid 
the Beneficiary in 2017, it also submits evidence that it provided· her $19,323.49 in "housing 
1 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See, e.g., 
River St. Donuts, LLC v. Napolitano, 558 F.3d 111, 118 ( I st Cir. 2009); Estrada-Hernandez v. Holder, I 08 F. Supp. 3d 
936, 942-43 (S.D. Cal.2015). 
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Matter of W-S-S- Inc. 
allowances." 2 Combining the wages and housing allowances, the Petitioner contends that its total 
payments of $38,421.70 to the Beneficiary exceeded the prorated proffered wage of $36,327.08 for 
2017. If a petitioner demonstrates that its payments to a beneficiary equaled or exceeded his or her 
proffered wage, USCIS does not require it, for that given year, to demonstrate its ability to pay the 
combined proffered wages of multiple petitions. 
Contrary to the Petitioner's argument, however,. USCIS does not permit a petitioner to prorate 
· proffered -wages. Even if the Agency allowed proration, the Petitioner's evidence would not 
demonstrate that, after the June 5, 2017, priority date, its combined wage and housing payments to 
the Beneficiary equaled ~r exceeded the prorated proffered wage. The record indicates that the 
Petitioner paid the wages and housing allowances over the entire year of 2017. The payments during 
the 12-month period would not demonstrate the Petit'ioner's ability to pay a similar amount during 
the shorter, prorated period of about seven months. 
Also, the Petitioner has not demonstrated that its housing payments constitute part of the 
Beneficiary's proffered wage. Article 4 of a copy of the employment agreement between the 
Petitioner and the Beneficiary categorizes her annual proffered wage of $62,275 as "Initial Hourly 
Compensation." The section states: "During the initial 1872 hours, approximately one (1) year after 
hire, as compensation for the services to be performed hereunder, Employee shall receive the sum of 
$62,275.00 per annum." (emphasis in original). The employment agreement does not indicate that 
the Beneficiary's proffered wage includes housing compensation. See Matter of Ho, 19 l&N Dec. 
582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistencies of record by independent, 
objective evidence pointing to where the truth lies). 
In addition, while a proffered wage may include the value of a job's fringe benefits, an employer 
"bears a heavy burden to demonstrate ... the fairness and bona fides of its proposal." Matters ol 
Kids 'R' U<i, 90-INA-20, 1991 WL 120095 *4 (BALCA Jan. 28, 1991) (en bane). An employer 
must establish the value of the benefits and their exclusion from the salaries of comparable jobs that 
the DOL used to determine the offered position's proffered wage. Id. Here, the Petitioner 
submitted a computer printout of its claimed 2017 housing payments to the Beneficiary. But the 
record lacks objective evidence - such as copies of invoices or deposited checks - corroborating the 
company's payments of the listed amounts to the Beneficiary on the referenced dates. Further, the 
Petitioner has not.demonstrated the.DOL's certification of the proffered wage based on salaries of 
comparable positions excluding housing allowances. Thus, in determining the Petitioner's ability to 
pay the Beneficiary's proffered wage in 2011; we will neither prorate the wage nor consider the 
claimed housing allowances. · 
The Petitioner submitted a copy of its federal income tax return for 2017. The return reflects net 
income of $963,842 and net current assets of $1,631,627. 3 Both amounts exceed the difference 
between the annual proffered wage and the Beneficiary's actual wages. 
2 The Petitioner's list of housing allowances also includes airfare payments to the Beneficiary. 
3 The Petitioner chose to file its 2017 feder~I income tax return as an S corporation, reporting additional income and 
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Matter of W-S-S- Inc. 
As the Director found, however, USCIS records indicate the Petitioner's filing of multiple immigrant 
petitions. A petitioner must demonstrate its ability to pay the proffered wage of each petition it files 
until a beneficiary obtains lawful permanent residence. 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 its other 
petitions that were pending or approved as of this petition's priority date of June 5, 2017, or filed 
thereafter. 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 did not demonstrate its ability to 
pay the combined proffered wages of multiple petitions). 4 
In response to the Director's request for additional evidence, the Petitioner provided information 
about petitions that it filed since 201 7. USCIS records indicate that, since that year's beginning, the 
Petitioner filed 103 petitions (including this one) that were pending or approved as of June 5,2017, 
or filed thereafter in 2017. Based on information provided by the Petitiorier, the combined proffered 
wages of those petitions total $6,059,650. Copies of Forms W-2 indicate that in 2017 the Petitioner 
paid 27'-'of those beneficiaries wages totaling $424,787.85. 5 Deducting the wages paid from the total 
proffered wages results in a remainder of $5,634,862.15. Neither the Petitioner's 2017 net income 
of $963,842, nor its 2017 net current assets of $1,631,627, equals or exceeds that amount. Thus, 
based on examinations of wages the Petitioner paid, its net income, and its net current assets, the 
record does not demonstrate its ability to pay the proffered wage. 6 
In further support of its ability to pay the combined proffered wages, the Petitioner submitted a letter 
from its chief financial officer (CFO). USC IS may accept such letters as proof of ability to pay from 
petitioners with at least .100 employees. 8 C.F.R. § 204.5(g)(2). Copies of federal payroll taxes 
show that, during the last quarter of 2017, the Petitioner employed almost 1,000 workers. The 
_CFO's letter asserts that the Petitioner's business structure, fueled by constant demands for 
temporary nurses, demonstrates its ability to pay. The letter explains that the Petitioner charges 
clients more for the services of its nurses than it pays the employees. The letter states: "This 
'deductions on Schedule K to its 2017 IRS Form I 120S, U.S. Income Tax Return for an S Corporation. We therefore 
consider the income reconciliation amount on line 18 of Schedule K to reflect the company's net income that year. See 
U.S. Internal Revenue Serv. (IRS), "Instructions for Form I I 20S," 22, https://www.irs.gov/pub/irs-pdf/i 1120s.pdf (last 
visited Jan. 25, 2019) (describing Schedule K as "a summary schedule of all shareholders' shares of the corporation's 
income, deductions, credits, etc:"). 
4 The Petitioner need not demonstrate its ability to pay the proffered wages of petitions that jt withdrew, or, absent 
pending appeal, that USCIS denied or revoked. The Petitioner also need not establish its ability to pay a proffered wage 
in a year before the priority date of a corresponding petition, or after a co1Tesponding beneficiary· obtains lawful 
permanent residence. . · ' 
5 The Petitioner also claims that wages it paid to so111e of its other beneficiaries in 2017 included housing allowances. 
For the reasons discussed above, however, we decline to include the claimed allowances as wages paid.· In any event, the 
total claimed allowances of $399,436.42 would not have established the Petitioner's ability to pay the combined 
proffered wages. 
6 USC IS records also indicate that, in 2015 and 2016, the Petitioner filed 88 other petitions that were pending or 
approved as of June 5, 2017. In any future filings in this matter, the Petitioner must provide proffered wages and receipt 
numbers of these petitions. The Petitioner may also submit evidence of any wages it paid to applicable beneficiaries in 
2017. . . 
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Matter of W-S-S- Inc. 
essentially means that for every additional nurse [the Petitioner] hires, it gives rise to even more 
profit for [the company]." 
USCIS, however, "may," but.need not, accept a letter from a financial officer as proof of a petition's 
ability to pay. 8 C.F.R. § 204.5(g)(2). Here, USCIS records indicate that many ofthe Petitioner's 
beneficiaries have lived outside the United States during their petition proceedings. Thus, they may 
not begin working and generating profits for the Petitioner until after the government approves their 
petitions and visa applications, allowing their admissions to the United States. Those approvals may 
take a year or more. In the meantime, the Petitioner must demonstrate -its ability to pay, not from the 
beneficiaries' start dates of employment, but from the earlier priority dates of their petitions. The 
Petitioner's business structure does not resolve the lack of immediate revenues from some of the 
company's beneficiaries. The CFO's letter therefore does not demonstrate the company's 
continuous ability to pay the combined proffered wages in 2017. 
Finally, as previously indicated, we may consider factors beyond wages paid, net income, and net 
current assets in determining the Petitioner's abil'ity to pay. Under Sonegawa, we may consider:. the 
number of years the Petitioner has conducted business; its number of employees; growth in its 
business; its incurrence of uncharacteristic losses• or expenses; its business reputation; the 
Beneficiary's replacement of an employee or outsourced service; or other factors affecting the 
Petitioner's ability to pay. Matter ofSonega~ 1a, 12 I&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuing business operations since 1996 and its 
employment of nearly 1,000 people. Also, the Petitioner's chief executive officer stated that, from 
2014 through 2016, its number of employees and amounts of annual gross income substantially rose. 
Copies of the Petitioner's tax returns, however, indicate that, from 2016 to 2017, its net income and 
net current assets declined. Unlike in Sonegawa, the record does not indicate· the Petitioner's 
incurrence of uncharacteristic losses or expenses, or its possession of. an outstanding business 
reputation. The record aiso does not indicate the Beneficiary's replacement of an employee or 
outsourced service. In addition, unlike in Sonegawa, the Petitioner must demonstrate its ability to 
pay the combined proffered wages of multiple petitions which represent a significant wage burden. 
Thus, a totality of circumstance.s under Sonegawa does not establish the Petitioner's ability to pay 
the proffered wage. 
III. CONCLUSION 
The Petitioner has not demonstrated its ability to pay the combined proffer.ed wages of this and other 
applicable petitions. We will therefore affirm the Director's decision. 
ORDER: The appeal is dismissed. 
Cite as Matter of W-S-S- Inc., ID# 2760088 (AAO Feb. 15, 2019) 
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