remanded EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 14, 2023 In Re : 23090698 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a healthcare 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 
classification. Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U .S.C . 
§ 1153(b )(3)(A)(i). This employment-based immigration classification allows a U.S. employer to 
sponsor a noncitizen for lawful permanent residence 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, concluding that the record did not 
establish that the Petitioner was a valid U.S. employer. The matter is now before us on appeal. 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review , 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
The offered position of registered nurse is a "Schedule A" occupation . The Department of Labor has 
determined that there insufficient U.S. workers who are able, willing, qualified, and available and that 
employment of noncitizens in these "Schedule A" positions will not harm the wages or working 
conditions of U.S. workers in similar positions. 20 CFR § 656.5. Therefore, DOL authorizes U.S. 
Citizenship and Immigration Services (USCIS) to adjudicate Schedule A labor certification 
applications for registered nurses in immigrant visa petition proceedings. 20 C.F.R. § 656.15(a). 
A petitioner may file a Form 1-140 on a noncitizen's behalf if that petitioner is an "employer desiring 
and intending to employ [the noncitizen] within the United States." Section 204(a)(l)(F) of the Act. 
For purposes of filing such a petition, an employer must have a location in the United States and a 
valid Federal Employer Identification Number (FEIN) and propose to employ the noncitizen in the 
United States on a full-time basis . 20 C.F.R. § 656 .3 (defining "Employer"). 
The Director denied the present petition because the record did not establish that the Petitioner exists 
as an entity which can employ a noncitizen in the United States under the name and address provided. 
On appeal, the Petitioner provides corporate ownership documents, documentation of its trade name 
and FEIN, and evidence that it is the entity licensed to operate the care facility that will employ the 
Beneficiary at the U.S. work location provided on the labor certification form and Form I-140. This 
establishes that the Petitioner is a valid U.S. employer for purposes of filing an employment visa 
petition. However, while the Petitioner has overcome the sole ground of the Director's denial, the 
record indicates that farther review is required to establish eligibility. 
A petitioner must establish that it has the ability to pay the beneficiary the proffered wage from the 
priority date 1 onward. 8 C.F.R. § 204.5(g)(2). To demonstrate that the job offer to the beneficiary is 
realistic, the petitioner must also establish its ability to pay the proffered wages of its other Form I-140 
beneficiaries. 2 
The regulation at 8 C.F.R. § 204.5(g)(2) states that documentation of ability to pay shall be in the form 
of copies of annual reports, federal tax returns, or audited financial statements, and that in appropriate 
cases, additional financial evidence may be submitted. This documentation should demonstrate the 
Petitioner's continuing ability to pay the proffered wage of $66,560 starting on the priority date, which 
in this instance is May 21, 2021. 
The record in the present case includes the Petitioner's 2019 federal tax return, but does not include 
its federal tax returns, audited financial statements, or annual reports from the priority date year of 
2021 onward. Additionally, USCIS records indicate that the Petitioner has filed Forms I-140 for over 
a dozen other beneficiaries. Where a petitioner has filed Form I-140 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 at 124. The Petitioner here must therefore establish its ability to pay not only 
the Beneficiary of this petition, but also the beneficiaries of the other petitions that were pending or 
approved as of the Beneficiary's priority date, as well as those filed after the priority date. 3 The record 
in this case does not include any documentation regarding the wages of these other beneficiaries. 
Because the record does not establish the Petitioner's ability to pay the Beneficiary's wages, we will 
remand the matter to the Director for farther consideration. 
On remand, the Director should issue a new request for evidence requesting documentation of the 
Petitioner's ability to pay starting on the priority date, as well as a list of all of the Petitioner's pertinent 
Forms I-140, their proffered wages, and any other evidence relevant to determining the Petitioner's 
ability to pay. 
1 The priority date ofa Schedule A petition is the date the petition is properly filed with USCTS. 8 C.F.R. § 204.S(d). 
2 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 when the petitioner did not demonstrate its ability to pay multiple beneficiaries). 
3 The 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 pennanent residence; 
• If an T-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary; or 
• In any year when the Petitioner has paid the Beneficiary a salary equal to or greater than the proffered wage. 
2 
Upon receiving a timely response, the Director should consider the Petitioner's net income and net 
current assets each year from 2021 onward, as well as information related to the Petitioner's other 
Form 1-140 beneficiaries for the relevant time period. At their discretion, the Director may consider 
other evidence that is relevant to the Petitioner's financial situation. 4 
Finally, we note that that the Petitioner may not have provided appropriate notice of filing the 
application for labor certification. All Schedule A petitions must include evidence that notice of the 
labor certification application's filing was given to the appropriate bargaining representative for the 
offered occupational classification, or if there is no bargaining representative, to the petitioner's 
employees. 20 C.F.R. §§ 656.15, 656.lO(d)(l)(i)-(ii). 
The Petitioner here indicated that there was no bargaining representative for the offered position and 
provided evidence that it gave notice of filing to its employees. However, publicly available 
information from the Connecticut Department of Health indicates that the Petitioner was cited inc=] 
2021 for failure to file a strike contingency plan after receiving notice of a labor strike from its 
healthcare workers' union in D 2021. 5 This indicates that the healthcare workers at the work 
location where the Petitioner proposes to employ the Beneficiary were unionized in May 2021, when 
the petition was filed. 
On remand, the Director should request documentation regarding the union representation that existed 
at the stated work location at the time of filing, including whether the nurses at this work location were 
unionized, and if so, whether the Petitioner gave appropriate notice of filing to the bargaining 
representative as per 20 CFR § 656.l0(d)(l)(i). 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
4 Where a petitioner's net income and net cunent assets are insufficient to pay the offered wage, USCTS may, at its 
discretion, consider other relevant factors, such as the number of years the petitioner has been in business. the size of its 
operations, the growth of its business over time, its number of employees, the occurrence of any uncharacteristic business 
expenditures or losses, its reputation within its industry, and whether a beneficiary will replace a cunent employee or 
outsourced service. See Matter ofSonegawa, 12 T&N Dec. 612, 614-15 (Reg'! Comm'r 1967). 
5 Notice of Civil Penalty from Conn. Dep't. of Health I I 2021 ), License Lookup, 
https://elicense.ct.gov/Lookup/LicenseLookup.aspx (choose "Chronic & Convalescent Nursing Home" under "License 
Type," enter 'I tin the "Business Name/OBA" field, then press "Submit"; press "Detail" in the resulting popup, 
and click the appropriate document link in the "Citations" section to access the PDF) (last visited Jul. 14, 2023). 
3