remanded EB-3 Case: Healthcare

MATTER OF A-H-C-P-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 10, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of healthcare staffing services, seeks to employ the Beneficiary as a 
registered nurse. It requests her classification under the third-preference, immigrant category as a 
skilled worker. 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" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a position requiring at least two 
years of training or experience. 
The Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate its required ability to pay the combined proffered wages of this and 
other petitions. 
On appeal, the Petitioner submits additional evidence and asserts its ability to pay the combined 
proffered wages based on its beneficiaries' generation of income in excess of their wages. It also 
argues that it need not pay proffered wages until beneficiaries obtain lawful permanent resident 
status. 
Upon de nova review, we will withdraw the Director's decision and remand the matter for entry of a 
new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigration generally follows a three-step process. To permanently fill a job in 
the United States with a foreign national, an employer must first obtain certification from 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 an offered position, an employer must then submit the labor 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. If USCIS approves a 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. 
The DOL has determined that the United States lacks able, willing, qualified, and available nurses, 
and that employment of foreign nationals in this "Schedule A" occupation will not hurt the wages and 
Matter of A-H-C-P-, Inc. 
working conditions of U.S. workers with similar jobs. 20 C.F.R. § 656.5. Thus, the DOL has 
authorized USCIS to adjudicate labor certification applications for nurses. 20 C.F.R. § 656.15(a). 
USCIS therefore not only rules on this petition, but also on its accompanying labor certification 
application. See 20 C.F.R. § 656.15( e) ( describing a labor certification determination by USC IS in a 
Schedule A case as "conclusive and final"). 
II. 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. 1 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. Id. 
Here, the labor certification application states the proffered wage of the offered position of registered 
nurse as $54,800 a year. As of the appeal's filing, however, required evidence of the Petitioner's 
ability to pay the proffered wage in 2017, the year of the petition's priority date, was not yet 
available. 2 The Director determined the Petitioner's ability to pay based on copies of its federal 
income tax returns for 2016. 
Required evidence of the Petitioner's ability to pay in 2017 should now be available. We will 
therefore remand this matter. On remand, the Director should ask the Petitioner to submit copies of 
an annual report, federal income tax returns, or audited financial statements for 2017. 
The Director should also remind the Petitioner that it must provide the receipt numbers, priority 
dates, and proffered wages of its other immigrant petitions that were pending or approved as of this 
petition's priority date of September 11, 2017, or submitted thereafter that year. See Patel v. 
Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval 
where, as of the filing' s grant, a petitioner did not demonstrate its ability to pay combined proffered 
wages of multiple petitions). 3 In response to the Director's request for evidence (RFE), the 
Petitioner provided a list of other petitions. But the list lacked the petitions' proffered wages, 
preventing a determination of the Petitioner's ability to pay the petitions' combined wages. On 
remand, the Petitioner should provide the missing proffered wages. It may also submit additional 
evidence, including proof of its payment of wages to relevant beneficiaries and materials supporting 
the factors stated in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). 
1 This petition's priority date is September 11, 2017, the date of its filing. See 8 C.F.R. § 204.5(d) (explaining how to 
determine a petition's priority date). 
2 On appeal, the Petitioner submits a copy of IRS Form 940, Employer's Annual Federal Unemployment (FUT A) Tax 
Return, for 2017. This form, however, does not reflect the Petitioner's income or net current assets. It therefore does not 
constitute required evidence under 8 C.F.R. § 204.5(g)(2). 
3 The Petitioner need not provide information about petitions that were denied, withdrawn, or revoked without a pending 
appeal of motion. USCIS will also not require the Petitioner to demonstrate its ability to pay a proffered wage before a 
petition's priority date. 
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Matter of A-H-C-P-, Inc. 
III. THE NOTICE OF FILING 
Although unaddressed by the Director, the accompanying labor certification application does not 
merit approval. Unless a bargaining unit represents employees in an offered position, an employer 
seeking Schedule A designation must document its posting of a notice of the filing of the labor 
certification application to employees at the proposed worksite. 20 C.F .R. § 656.1 S(b )(2). The 
notice must include a position's rate of pay. 20 C.F.R. § 656.10(d)(6). 
Here, the Petitioner's RFE response included a copy of a filing notice describing the position's rate 
of pay as $54,400 a year. As previously indicated, however, the labor certification application states 
the annual proffered wage as $54,800. Contrary to 20 C.F .R. § 656.10( d)( 6), the notice does not 
accurately describe the position's rate of pay. 
On remand, the Director should ask the Petitioner to submit evidence of its compliance with the 
filing notice requirements and afford it a reasonable opportunity to respond. Upon timely receipt of 
a response, the Director should review the entire record and enter a new decision. 
IV. CONCLUSION 
As of the appeal's filing, required evidence of the Petitioner's ability to pay the proffered wage 
during the year of the petition's priority date was not yet available. The record also lacks evidence 
that the Petitioner properly notified employees of the filing of the labor certification application. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter of A-H-C-P-. Inc., ID# 1676708 (AAO Aug. 10, 2018) 
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