remanded EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 30,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of healthcare personneL 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)(i), 8 U.S.C. 
§ 1153(b)(3)(i). This employment-based, "EB-3" category allows a U.S. employer 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 proffered wage. 
On appeal, the Petitioner submits additional evidence and asserts that the Director erred in finding it 
unable to pay the combined proffered wages of this and other petitions. 
Upon de novo review, we will withdraw the Director's decision and remand this matter for further 
proceedings consistent with the following opinion. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration generally follows a three-step process. First, an employer files an 
application for labor certification 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 certifies a foreign national to 
permanently fill an offered position, the employer must then submit the 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. IfUSCIS approves the 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. 
For professional nursing positions, however, the DOL has determined that the United States lacks 
enough able, willing, qualified, and available workers. 20 C.F.R. § 656.5(a)(3)(ii). The DOL has also 
found that employment of foreign nationals in these ''Schedule A" jobs will not hurt the wages and 
working conditions of U.S. nurses. !d. Because Schedule A positions do not require tests of U.S. labor 
markets, the DOL has authorized USCIS to adjudicate labor applications for professional nurses during 
Matter of W-S-S-, Inc. 
visa petition proceedings. 20 C.F.R. § 656.15(a). Thus, in this case, USCIS rules on both the labor 
certification application and the petition. 
II. THE PETITIONER'S ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must 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. Jd. 
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 
proffered wage, USCIS examines whether it generated sufficient annual amounts of net income or 
net current assets to pay any differences between the annual proffered wage and actual wages paid. 
If net income and net current assets are insufficient, USCIS may also consider other factors affecting 
a petitioner's ability to pay a proffered wage. See Maller of Sonegawa. 12 l&N Dec. 612, 614-15 
(Reg'! Comm'r 1967). 1 
Here, the labor certification with priority date of January 25, 2016,2 states the protTered wage of the 
offered position of registered nurse as $66,040 a year. As of the Director's decision, however, 
required evidence of the Petitioner's ability to pay the proffered wage in 2016, the year of the 
petition's priority date, was not yet available. In determining the Petitioner's ability to pay, the 
Director considered the company's federal tax returns for 2015, the most recent returns available, 
and found that the Petitioner had not established its ability to pay the Beneficiary in this case and the 
beneficiaries of its other I -140 petitions. 
Required evidence of the Petitioner's ability to pay in 2016 should now be available. We will 
therefore withdraw the Director's decision and remand this matter for consideration of evidence 
pertinent to the priority date year. On remand, the Director should ask the Petitioner for copies of its 
annual report, federal income tax returns, or audited financial statements for 2016. The Petitioner 
may also submit additional evidence in support of its ability to pay the proffered wage to Beneficiary 
in this case and to its other sponsored I-140 beneficiaries, including evidence supporting the factors 
stated in Sonegawa. 
On appeal, the Petitioner asserts that the Director erred in requiring it to demonstrate an ability to 
pay combined protTered wages of this and other petitions that were pending or tiled after this 
petition's priority date. The Petitioner argues that it already established its ability to pay the 
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 Ill, I 18 (I st Cir. 2009); Estrada-Hernande::: v. Holder, I 08 F. Supp. 3d 
936, 942-43 (S.D. Cal. 2015); Riv:::i v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff"d, 
627 Fed. App'x 292 (5th Cir. 20 15). 
2 
See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
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Matter of W-S-S-, Inc. 
proffered wages of other approved petitions. However. where a petitioner has filed petitions for 
multiple beneficiaries, it must demonstrate that its job offer to each beneficiary is realistic. and that it 
has the ability to pay the proffered wage to each beneficiary. See 8 C.F.R. § 204.5(g)(2); see also 
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). Otherwise. if the Petitioner's 
2016 amounts of net income or net current assets equal or exceed each individual petition's 
proffered wage, the Petitioner could unrealistically demonstrate an ability to pay an unlimited 
number of beneficiaries. See Matter (~f Great Wall. 16 l&N Dec. 142. 144-45 (Acting Reg'! 
Comm'r 1977) (holding that the ability-to-pay requirement must establish a job offer as '"realistic"). 
Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the beneficiaries of 
the other 1-140 petitions that were pending or filed after the priority date of the current petition. 3 
The Petitioner also asserts that the Director erred by requiring it to demonstrate its ability to pay the 
combined proffered wages of petitions that were not "pending simultaneously.'' The Petitioner, 
however, appears to misunderstand USCIS' reference to a "pending'' petition. For ability-to-pay 
purposes, a petition remains pending not just during its adjudication period. A petitioner must 
demonstrate its continuing ability to pay "until the beneficiary obtains lawful permanent residence ... 
8 C.F.R. § 204.5(g)(2). Thus, unless withdrawn or revoked. a petition also remains pending after its 
approval. A petitioner must therefore demonstrate its ability to pay combined proffered wages even 
if the adjudication periods of the petitions did not overlap. 4 
The Director cited 56 petitions of the Petitioner that were pending or filed in 2016 after this 
petition's priority date. Including this petition, however, USCIS records indicate the Petitioner's 
submission of at least 15 8 petitions that were pending or filed after the priority date. On remand, the 
Director should therefore request the missing information including the receipt numbers. names of 
beneficiaries, priority dates, and proffered wages of these other petitions. and the status of each 
petition and the date of any change (i.e., pending, approved, withdrawn, revoked. denied, on appeal 
or motion, beneficiary obtained lawful permanent residence). The Director should also request 
evidence of any wages paid to these other beneficiaries in that year. 
3 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. 
4 The Director stated that he did not require the Petitioner to demonstrate its ability to pay the proffered wages of 
petitions whose beneficiaries obtained lawful permanent residence. We agree that the Petitioner need not demonstrate its 
ability to pay beneficiaries who obtained lawful permanent residence before this petition's priority date. But it must 
establish its ability to pay the proffered wages of beneficiaries who obtained "green cards" after the priority date. 
Specifically, it must demonstrate its ability to pay such beneficiaries from the petition's priority date until the approval 
dates oftheir green cards. 
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Matter of W-S-S-, Inc. 
On appeal, the Petitioner further states that it charges customers more for the services of its 
employees than it pays the workers. It contends that this business model ensures its ability to pay 
the combined proffered wages of its pending petitions. The record, however, does not support the 
Petitioner's contention because many of its new hires, including the Beneficiary, remain outside the 
United States during the immigration process. The Petitioner must demonstrate its ability to pay the 
proffered wages of these foreign nationals from the priority dates of their petitions. See 8 C.F.R. 
§ 204.5(g)(2). The beneficiaries outside the United States, however, cannot generate income for the 
Petitioner for months or sometimes years after the priority dates, once they receive immigrant visas 
and enter the country. The record therefore does not support the Petitioner's contention that its 
business model ensures its ability to pay the combined proffered wages. 
III. CONCLUSION 
As of the Director's decision, required evidence of the Petitioner's ability to pay the proffered wage 
from the petition's priority date was not yet available. On remand, the Director should afford the 
Petitioner a reasonable amount of time to provide the evidence and information discussed above. 
Upon timely receipt of the Petitioner's response, the Director should review the entire record and 
enter a new decision. 
ORDER: The decision of the Director is withdrawn. The record is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter q{W-S-S-, Inc., ID# 404233 (AAO Oct. 30, 2017) 
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