dismissed EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-E-S-R- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 26,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a medical staffing company, 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 immigrant classification 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 Nebraska Service Center denied the petition. The Director concluded that the 
record did not establish the Petitioner's required ability to pay the combined proffered wages of this 
and other pending and approved petitions. 
On appeal, the Petitioner submits additional evidence and asserts its ability to pay the pro!Tered 
wage. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration usually follows a three-step process. First, an employer files a 
labor certification application with 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 approves the application, the employer then files 
an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 
204 of the Act, 8 U.S.C. § 1154. Finally, 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. 
The occupations of nurse and physical therapist, however, are listed on Schedule A. The DOL has 
determined that the United States lacks able, willing, qualified, and available nurses and physical 
therapists, and that employment of foreign nationals in these occupations will not hurt the wages and 
working 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 users to adjudicate labor ceiiitication applications 
accompanying petitions for nurses and physical therapists. 20 C.F.R. § 656.15(a). Therefore, in this 
Schedule A case, USCTS rules on both the petition and the labor certification application. 
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Matter of R-E-S-R- LLC 
While exempt from advertising an offered position, a Schedule A petitioner must still 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. /d. 
II. ANALYSIS 
In this case, the labor certification application states the proffered wage of the offered position of 
registered nurse as $60,798 a year. The petition's priority date is January 12, 2016, the date USC IS 
received the petition. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority 
date). 
In detennining ability to pay, we first examine whether a petit10ner paid a beneficiary the full 
proffered wage 
each year from a petition's priority date. If a petitioner did not pay the full proffered 
wage, we examine whether it generated annual amounts of net income or net current assets sufficient 
to pay the difference between the proffered wage and any actual wages paid. If net income and net 
current assets are insufficient, we may consider other factors affecting a petitioner's ability to pay. 
See Matter ofSonegmva, 12 I&N Dec. 612, 614-15 (Reg'! Comm'r 1967). 1 
The record lacks evidence of the Petitioner's employment of the Beneficiary. Thus, based on actual 
wages paid, the record does not establish the Petitioner's ability to pay the proffered wage. 
On appeal, the Petitioner submits copies of audited tinancial statements for 2016. 2 The statements 
indicate the Petitioner's generation of $256,026 in net income and $699,294 in net current assets. 
Both amounts exceed the annual proffered wage of $60,798. The Petitioner therefore appears able to 
pay the Beneficiary's proffered wage in 2016; however, as the Director's request for additional 
evidence (RFE) indicated, the Petitioner has filed multiple, employment-based, immigrant petitions. 
USCIS records indicate the Petitioner's filing of at least 28 other petitions that remained pending or 
approved after this petition's priority date of January 12, 2016. 3 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files from that 
petition ' s priority date onward. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore 
1 Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River Sr. 
Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Just Bagels A1fg.. Inc. v. Mayorkas, 900 F. Supp. 2d 363, 
373-76 (S.D.N.Y. 20 12). 
2 Because the appeal was filed before the end of 20 16, the statements reflect the Petitioner's finances that year as of 
October 31. 
3 USCIS records identify the other 28 petitions by the following receipt numbers: 
and 
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Matter of R-E-S-R- LLC 
demonstrate its ability to pay the combined proffered wages of this and other petitions that remained 
pending or approved after its priority date. The Petitioner must demonstrate its ability to pay the 
combined proffered wages until the other beneficiaries obtained lawful permanent resident status, or 
until their petitions were denied, withdrawn, or revoked. See Patel v. Johnson, 2 F. Supp. 3d 108, 
124 (D. Mass. 2014) (affirming a petition's revocation where, as of its approval, the petitioner did 
not establish its ability to pay the combined proffered wages of multiple petitions). 
Contrary to the RFE's request, the Petitioner has not provided information about its other petitions. 
See 8 C.F.R. § 103.2(b)(l4) (providing for a petition's denial if a petitioner does not submit 
requested evidence that precludes a material line of inquiry). The record does not indicate the 
proffered wages of the petitions, or whether the Petitioner paid wages to their beneficiaries. The record 
also does not indicate whether the beneficiaries obtained lawful permanent residence, or whether their 
petitions were denied, withdrawn, or revoked. Without this information, the record does not establish 
the Petitioner's ability to pay the proffered wage. 
On appeal, the Petitioner asserts that it demonstrated its ability to pay when the record established its net 
income as exceeding the proffered wage. As previously indicated, however, the Petitioner must 
demonstrate its ability to pay the combined proffered wages of this and other petitions that remained 
pending or approved after its primity date. Otherwise, as long as the Petitioner's annual amounts of net 
income and net current assets exceed each individual proffered wage, the Petitioner could unrealistically 
demonstrate its ability to pay an unlimited number of beneficiaries. See Matter of Great Wall, 161&N 
Dec. 142, 144-45 (Acting Reg'l Comm'r 1977) (holding that the ability-to-pay requirement establishes 
a job offer as "realistic"). 
ln response to the RFE, the Petitioner asserted that its business model ensures its ability to pay all of its 
nurses. It contended that the more nurses it employs, the more profits it generates. For example, the 
Petitioner stated that the Beneficiary here will work at the site of a client that will pay the Petitioner at 
least $87,750 a year for her services, about 44 percent more than her annual proffered wage from the 
Petitioner. 
Despite the Petitioner's profitable business model, the record does not establish the company's 
ability to pay the combined proffered wages of this and its other petitions. For immigration 
purposes, the Petitioner must demonstrate its ability to pay proffered wages from the filing dates of 
its petitions. US CIS records, however, indicate that many of the Petitioner's beneficiaries cannot 
begin working, and thus generating profits, for it until months, or even years, after their petitions' 
filings. Some beneficiaries must remain outside the United States until they receive immigrant visas. 
Others, like the Beneficiary here, are in the country but lack immediate authorization to work for the 
Petitioner. 
Thus, because many beneficiaries do not generate income for the Petitioner for lengthy periods after 
the filings of their petitions, the Petitioner's business model does not establish its ability to pay the 
combined proffered wages of all of its pending beneficiaries. 
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Matter of R-E-S-R- LLC 
On appeal, the Petitioner also asserts that its bank accounts contain additional funds available to pay 
proffered wages. It submits copies of 2016 statements from three different accounts, indicating 
combined, month-end balances of more than $100.000. The Petitioner notes that, "[i]n appropriate 
cases, ... bank account records ... may be submitted by the petitioner or requested by the Service" 
as evidence of ability to pay a proffered wage. 8 C.F.R. § 204.5(g)(2). 
Here, however, the Petitioner's bank account records do not establish its ability to pay the proffered 
wage. We already considered the Petitioner's bank funds when we examined the net current assets 
stated in its 2016 audited financial statements. Under "Current Assets," the balance sheet lists "Cash 
and Cash Equivalents" of $252,136. The statements' notes indicate that "[t]he Company maintains 
its cash balances in various banks." The record therefore indicates that the current assets listed on 
the balance sheet include the funds reflected in the bank account records. Because we have already 
considered the bank funds as part of the Petitioner's net current assets, the funds do not represent 
additional money available to pay proffered wages. 
As previously indicated, in determining a petitioner's ability to pay a proffered wage, we may 
consider factors beyond net income and net current assets. Under Sonegawa, we may consider such 
factors as: the number of years a petitioner has conducted business; its number of employees; the 
grmvth of its business; its reputation in its industry; the occurrence of uncharacteristic expenses or 
losses; a beneficiary's replacement of a current employee or outsourced service; or other evidence of 
its ability to pay. See Matter of Sonegawa, 16 l&N Dec. at 614-15. 
Here, the record indicates the Petitioner's continuous business operations since 2009 and its current 
employment of 75 people. As the Petitioner argues, copies of its federal income tax returns also 
show that its annual revenues increased almost 66 percent from 2013 to 2015. Unlike the petitioner 
in Sonegawa, however, the Petitioner has not established its possession of an outstanding reputation 
in its industry or its incurrence of uncharacteristic expenses or losses. The record also does not 
indicate the Beneficiary's replacement of an existing employee or outsourced service. Also unlike 
the petitioner in Sonegawa, the Petitioner must demonstrate its ability to pay the combined proffered 
wages of multiple beneficiaries. Thus, the totality of the circumstances under Sonegawa does not 
establish the Petitioner's ability to pay the proffered wage. 
Ill. CONCLUSION 
The record does not establish the Petitioner's 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 of R-E-S-R- LLC, !D# 419155 (AAO May 26, 2017) 
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