remanded EB-3 Case: Health Care

MATTER OF W-S-S-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : JULY 26, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a health care staffing company, 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 Director of the Texas Service Center denied the petition on the ground that the Petitioner did not 
establish its ability to pay the proffered wages of this Petitioner and the beneficiaries of all the other 
Form I-140, Immigrant Petitions for Alien Workers (I-140 petitions) it had filed. On appeal the 
Petitioner asserts that the denial was erroneous because the Director did not properly analyze all of 
the Petitioner's evidence and the totality of its circumstances. 
Upon de nova review , we will withdraw the Director's decision and remand the case for further 
consideration and the issuance of a new decision . 
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. 
Matter of W-S-S-, Inc. 
II. ANALYSIS 
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it 
has the ability to pay the proffered wage stated in the labor certification. 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 from the priority date 1 of the petition onward. The proffered wage in this case is 
$53,248 per year and the priority date September 6, 2017. 
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, when accompanied by a form of 
evidence required in the regulation at 8 C.F.R. § 204.5(g)(2, it may be considered proof of the 
petitioner's ability to pay the proffered wage to that beneficiary. In this case the Petitioner states that 
it began employing the Beneficiary in August 2017 and has submitted copies of three Forms W-2, 
Wage and Tax Statements, assertedly issued to the Beneficiary, two for 2017 and one for 2018. The 
two 2017 Forms W-2 recorded "wages, tips, other compensation" of $16,595.61 and $1,987.38, 
respectively, for a total of $18,582.99, while the Form W-2 for 2018 recorded "wages, tips, other 
compensation" of $44,077.84. Thus, the Forms W-2 do not indicate that the wages paid to the 
Beneficiary equaled or exceeded the proffered wage in either 2017 or 2018.2 
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 on the petitioner's federal income tax retum(s), annual report(s), or audited 
1 The "priority date" of the 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. That date 
was September 6, 2017. 
2 The authenticity of the 2018 Form W-2 appears questionable since none of the dollar figures and identification numbers 
are correctly spaced in their respective boxes. Also, the Petitioner has not explained why two Forms W-2 were issued 
for 2017. 
2 
Matter of W-S-S-, Inc. 
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 
I-140 beneficiaries, the petitioner would be considered able to pay the proffered wage during that 
year. However, if a petitioner has filed I-140 petitions for multiple beneficiaries, it must 
demonstrate that its job offer to each I-140 beneficiary is realistic, and that it has the ability to pay 
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 
Since USCIS records indicated that the Petitioner had filed multiple I-140 petitions, the Director 
issued a request for evidence (RFE) advising the Petitioner to submit, among other things, a list of 
all its I-140 petitions with the following information for each petition: 
• the receipt number, 
• the beneficiary's name, 
• the offered wage, 
• the priority date, 
• the beneficiary's dates of employment with the Petitioner, 
• the current status of the petition (pending, approved, denied, on appeal, etc.); and 
• whether the beneficiary has acquired legal permanent residence [LPR] status. 
As evidence that the proffered wages were paid to each beneficiary the Petitioner was requested to 
submit: 
• the Forms W-2, Wage and Tax Statements, for each beneficiary, or 
• their Forms 1099-MISC, Miscellaneous Income; 
• their pay vouchers for each pay period; and 
• the Petitioner's Forms 941, Employer's Quarterly Federal Tax Returns, and state 
unemployment compensation reports, for the last two quarters of 201 7 and first quarter of 
2018. 
In addition, the Petitioner was requested to submit a copy of: its 201 7 federal income tax return, or 
its 201 7 annual report, or an audited financial statement for 201 7. 
3 A 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 
Matter of W-S-S-, Inc. 
In response to the RFE the Petitioner submitted a copy of its federal income tax return for 201 7, 
Form 1120S, U.S. Income Tax Return for an S Corporation, along with all or most of the 
information and corroborating documentation relating to the other I-140 petitions and beneficiaries, 
including their offered wages and wages paid. 
In his decision the Director noted that the Petitioner's 2017 federal income tax return recorded net 
income of $963,842 and net current assets of $1,631,627, both of which exceeded the Beneficiary's 
proffered wage. While acknowledging that the Petitioner had the ability to pay the Beneficiary if his 
were the only petition it filed, the Director estimated that the Petitioner's net current assets would 
only be able to support 30 beneficiaries based on the proffered wage of $53,248 paid to the instant 
Beneficiary. Since the Petitioner had filed more than 200 1-140 petitions in the previous 12 months, 
the Director found that the Petitioner had not established its ability to pay all of its 1-140 
beneficiaries and denied the petition on that ground. 
The Director's reasoning was faulty. As asserted by the Petitioner on appeal, the Director neglected 
to properly consider the documentation it submitted in response to the RFE. In particular, while 
acknowledging the submission of Forms W-2 for the other 1-140 beneficiaries, the Director simply 
stated that they showed salaries for each beneficiary below their proffered wages. The Director did 
not calculate the dollar figures for total proffered wages and total wages paid in 201 7, nor indicate 
whether certain denied or withdrawn petitions were properly excluded. Even if the Petitioner's total 
proffered wage obligation did exceed the total wages paid in the priority date year of 2017, the 
Director did not determine whether the Petitioner's net current assets that year - which totaled more 
than $1. 6 million - may have been sufficient to cover the difference. 
Accordingly, we will remand this matter for farther consideration of the materials submitted by the 
Petitioner in response to the RFE, as well as on appeal, and a new determination by the Director 
concerning the Petitioner's ability to pay the proffered wages of all its 1-140 beneficiaries. 
On remand the Director may also consider the totality of the circumstances affecting the Petitioner's 
ability to pay the proffered wages of its 1-140 beneficiaries, employing the factors discussed in 
Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
III. CONCLUSION 
For the reasons discussed above, we will remand this case to the Director for farther consideration of 
the Petitioner's ability to pay the proffered wages of the instant Beneficiary and its other 1-140 
beneficiaries from the priority date of this petition onward. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of W-S-S-, Inc., ID# 4927828 (AAO July 26, 2019) 
4