dismissed EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-H-C-P-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JULY 30, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a staffing business, 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. 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-3" immigrant classification allows a U.S. employer to sponsor a 
foreign national for lawful pennanent resident status to work in a position that requires at least two 
years of training or experience. 
The Director of the Texas Service Center denied the petition on the ground that the Petitioner did not 
establish that it had the continuing ability to pay the proffered wage to this Beneficiary as well as the 
proffered wages of the beneficiaries of all its other Form I-140 petitions (I-140 petitions). 
On appeal the Petitioner asserts that the Director misapplied several binding decisions in evaluating 
the Petitioner's ability to pay the proffered wage. 1 
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 is filed directly with USCIS with an uncertified ETA 9089 in duplicate. See 8 C.F.R. 
§§ 204.5(a)(2) and (k)(4); see also 20 C.F.R. § 656.15. 
1 In its notice of appeal, Form I-290B , and accompanying statement from counsel, the Petitioner indicated that it 
intended to file a brief and/or additional evidence within 30 days. However, no such brief or evidence was submitted. 
Matter of A-H-C-P-, Inc. 
II. ANALYSIS 
The regulation at 8 C.F.R. § 204.5(g)(2) provides as follows: 
Any petition filed by or for an employment-based immigrant which requires an offer 
of employment must be accompanied by evidence that the prospective United States 
employer has the ability to pay the proffered wage. 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]. 
In this case the proffered wage of the job offered, as indicated on the labor certification, is $54,800 
per year. The priority date of the petition is September 11, 2017. 2 
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. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the proffered wage for the time period in question, that evidence when 
accompanied by regulatory required documentation is considered proof of the petitioner's ability to 
pay the proffered wage to that beneficiary. In this case, however, the record indicates that the 
Petitioner has not employed the Beneficiary. Thus, the Petitioner cannot establish its ability to pay 
the proffered wage from the priority date onward based on wages paid to the Beneficiary. 
If a petitioner has not employed the beneficiary and paid a salary equal to or above the proffered 
wage from the priority date onward, USCIS will examine the net income and net current assets 
figures recorded on 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, and the petitioner has no additional proffered wage obligations to other 
1-140 beneficiaries, the petitioner would be considered able to pay the proffered wage during that 
year. However, if a petitioner has filed 1-140 petitions for multiple beneficiaries, it must 
demonstrate that its job offer to each 1-140 beneficiary is realistic, and that it has the ability to pay 
2 The "priority date" of a petition is ordinarily the date the underlying labor certification application was filed with the 
DOL. See 8 C.F.R. § 204.S(d). In this case, however, since the petition did not require a ce1iified ETA 9089, the 
"priority date" is the date the petition (with the completed but uncertified ETA 9089) was filed with USCIS. 
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Matter of A-H-C-P-, Inc. 
the proffered wage to each beneficiary. 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). Thus, the Petitioner must establish its ability to pay this Beneficiary as well 
as the beneficiaries of the other I-140 petitions that were pending or approved as of, or filed after, the 
priority date of the current petition. 3 
In his decision the Director noted that the Petitioner's 2017 federal income tax return, Form 1120, 
recorded net income of $174,135 and net current assets of $320,585. Both of these figures exceeded 
the proffered wage of the instant Beneficiary. However, the Director also cited users records 
showing that the Petitioner had filed 125 I-140 petitions during the three-year period from the 
beginning of 2016 until early 2019, of which 54 had been approved and 31 were pending at the time 
of the decision, and referred to his request for evidence (RFE) about the Petitioner's other I-140 
petitions and beneficiaries which had been issued in October 2018. 4 In that RFE the Director 
advised the Petitioner to submit the following: 
• a list of all petition receipt numbers since 2016, 
• the proffered wage, priority date, and status of each petition, 
• the date each beneficiary's employment with the Petitioner began, and 
• evidence of wages paid to each of the beneficiaries. 
In response to the RFE the Petitioner submitted a list of 85 beneficiaries and associated petition 
receipt numbers, along with the priority date of each petition, the offered wage of each petition, and 
the status of each petition with various notations (including EAD, consular, and others) that were not 
fully explained. This list did not include all 125 of the I-140 petitions filed by the Petitioner since 
the beginning of 2016. Even more crucially, it did not include any information about the date each 
beneficiary's employment began with the Petitioner or any evidence of wages paid to any of the 
beneficiaries. Due to these evidentiary shortcomings the Director concluded that users could not 
accurately determine the Petitioner's ability to pay the proffered wages of all its I-140 beneficiaries, 
and that the Petitioner had failed to establish its ability to pay the proffered wage. 
On appeal the Petitioner has not remedied any of the evidentiary shortcomings discussed by the 
Director. The Petitioner has not furnished a complete list of the I-140 petitions it has filed since the 
beginning of 2016. Nor has the Petitioner submitted any evidence about the beginning dates of 
employment and the wages paid to any of the other I-140 beneficiaries, as originally requested in the 
Director's RFEs. Thus, it is still not possible for us to determine the Petitioner's ability to pay the 
proffered wage based on the actual figures of the Petitioner's proffered wage obligations and the 
3 A petitioner's ability to pay the proffered wage of one of the other T-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. 
4 An earlier RFE about the Petitioner's other 1-140 petitions and beneficiaries had been issued by the Director in 
December 2017, to which the Petitioner responded in February 2018. 
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Matter of A-H-C-P-, Inc. 
wages paid to its employed beneficiaries. The failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). 
As advocated by the Petitioner, citing Rizvi v. Department of Homeland Security, 37 F.Supp. 3d 870 
(S.D. Texas 2014), USCIS may also consider the totality of the Petitioner's circumstances, including 
the overall magnitude of its business activities, in determining the Petitioner's ability to pay the 
proffered wage. See also Matter of Sonegawa, 12 I&N Dec. 612. USCIS may, at its discretion, 
consider evidence relevant to the petitioner's financial ability that falls outside of its net income and 
net current assets. We may consider such factors as the number of years the petitioner has been 
doing business, the established historical growth of the petitioner's business, the petitioner's 
reputation within its industry, the overall number of employees, whether the beneficiary is replacing 
a former employee or an outsourced service, the amount of compensation paid to officers, the 
occurrence of any uncharacteristic business expenditures or losses, and any other evidence that 
USCIS deems relevant to the petitioner's ability to pay the proffered wage. 
In this case the Petitioner states that it was established in 2012 and had 31 employees at the time the 
petition was filed in 201 7. The federal income tax returns in the record show that the Petitioner's 
gross receipts totaled $1,547,306 in 2014, $2,060,924 in 2015, $2,111,265 in 2016 and $3,599,979 in 
201 7. Thus, the Petitioner recorded substantial growth from 2014 to 2017. This evidence of 
business growth, however, has minimal utility in our ability to pay analysis without evidence of the 
Petitioner's overall proffered wage obligations and the wages it paid to its other I-140 beneficiaries. 
It is the Petitioner's burden to establish eligibility for the immigration benefit it seeks. Section 291 
of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Center, 25 I&N Dec. 799,806 (AAO 2012). 
Considering the number of its I-140 petitions and the number of opportunities it has had and failed -
in two RFE responses and the instant appeal - to show the amount of its proffered wage obligations 
to its other I-140 beneficiaries, we cannot conclude that the Petitioner has established its ability to 
pay the proffered wages of the instant Beneficiary and all its other I-140 beneficiaries based on the 
totality of its circumstances. 
The Petitioner assets that the Director did not take into account a federal district court decision in 
Pooya Majdzadeh-Koohbanani v. Jaster-Quintanilla Dallas, LLP, Civil Action No. 3:09-CV-1951-
G-BK (N.D. Texas 2010), holding that a petitioner is not legally obligated to pay the prevailing 
wage until it actually employs the beneficiary. That holding is irrelevant in this appeal, however, 
since the issue is not the Petitioner's obligation to pay the prevailing (or proffered) wage when it 
actually employs its I-140 beneficiaries, but its ability to do so as of the priority date, as required in 
8 C.F.R. § 204.5(g)(2). As previously noted, the priority date for every Schedule A petition is the 
date the Petitioner files the labor certification and the I-140 petition with USCIS. Finally, the 
Petitioner asserts that the Director misapplied the doctrine in Patel v. Johnson, 2 F. Supp. 3d at 124, 
because that decision stated that the petitioner must demonstrate its ability to pay all employed 
beneficiaries, which only applies to about half of the Petitioner's I-140 beneficiaries. Regardless of 
the Petitioner's reading of Patel, the evidence of record does not establish who the Petitioner's 
employed beneficiaries are, their starting dates of employment, the wages paid to those beneficiaries, 
or the Petitioner's total proffered wage obligations to those beneficiaries. Moreover, the regulation 
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Matter of A-H-C-P-, Inc. 
at 8 C.F.R. § 204.5(g)(2) makes clear that the Petitioner's ability to pay the proffered wage for each 
of its I-140 beneficiaries begins when their respective labor certification applications are filed, not 
when they are employed by the Petitioner. 
For all of the reasons discussed above, the Petitioner has not established its continuing ability to pay 
the proffered wage of the instant Beneficiary and the proffered wages of all of its other I-140 
beneficiaries, from the priority date of September 11, 2017, onward. 
III. CONCLUSION 
The Petitioner has not established its ability to pay the proffered wage from the priority date onward. 
The appeal will be dismissed for the above stated reason. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-H-C-P-, Inc., ID# 5357075 (AAO July 30, 2019) 
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