remanded EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
MATTER OF K-S- LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 22, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of healthcare staff to hospitals, clinics, and managed care organizations, 
seeks to employ the Beneficiary as a registered nurse. It requests her classification under the third­
preference, immigrant category as a skilled worker. See Immigration and Nationality Act (the Act) 
section 203(b)(3)(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 job 
requiring at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the bona fides of the job offer. 
On appeal, the Petitioner submits additional evidence. The Petitioner asserts that the Director erred 
by basing her conclusion on a finding that the Beneficiary would work at the company's office, 
rather than at a client site. 
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 
Immigration as a skilled worker typically follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer seeks 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 DOL approves a position, an employer must next submit the labor 
certification with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). 
Section 204 of the Act, 8 U.S.C. § 1154. If USCIS grants a petition, a foreign national may finally 
apply abroad for an immigrant visa or, if eligible, for adjustment of status in the United States. See 
section 245 of the Act, 8 U.S.C. § 1255. 
DOL, however, has already determined that the United States lacks sufficient nurses and that 
employment of foreign nationals in these "Schedule A" positions will not harm the wages or 
working conditions of U.S. nurses. 20 C.F.R. § 656.5. DOL therefore authorizes USCIS to 
adjudicate labor certification applications in petition proceedings for Schedule A nurses. 20 C.F.R. 
Matter of K-S- LLC 
§ 656.15(a). Thus, in this matter, users rules not only on the petition, but also on its accompanying 
labor certification application. 
II. THE BONA FIDES OF THE JOB OFFER 
As noted, the Director denied the petition finding that the Petitioner has not demonstrated that the 
job offer was bona fide. The Director's concerns appear to focus on two areas: the position's 
worksite and the employment conditions. The Director found that the Petitioner intends to employ 
the Beneficiary at its headquarters, but noted that the Petitioner did not demonstrate that its 
headquarters includes a healthcare facility where a nurse would work. However, the decision also 
states that the Petitioner intends to "contract out" its employees to work at client sites, and that 
because the Beneficiary would be contracted out, the Petitioner must show "when, where, and how" 
employees would perform their duties. 
users must explain in writing the specific reasons for denying a benefit request. 8 e.F.R. 
§ 103.3(a)(l)(i). Here, the Director does not clearly explain the conclusion that the Petitioner did not 
demonstrate the bona fides of the job offer for the offered position of registered nurse, as the 
Director makes contradictory findings regarding the intended work location. 
In this case, the labor certification application and accompanying prevailing wage determination list 
the worksite as the Petitioner's office, but the job-duty sections of these documents state: "The 
worksite is unknown at this time." 1 An addendum to the Petitioner's Form I-140, Immigrant 
Petition for Alien Worker, list two worksites: the Petitioner's office; and a client hospital in the 
same state, about 200 miles away. The addendum states that the Beneficiary would permanently 
work at one location, but it does not specify which one. The Petitioner also submitted a copy of its 
staffing agreement with the client and a notice of filing posted at the hospital client site prior to the 
petition's filing. See 20 e.F.R. § 656.15(b)(2) (requiring Schedule A labor certification applications 
to include evidence of filing notices posted at employment locations). On appeal, the Petitioner 
further submits a letter from the client stating that the Beneficiary would work at the hospital while 
employed by the Petitioner. 
As noted by the Petitioner on appeal, the Director's decision did not address all of the evidence 
regarding the offered position's worksite and employment conditions. We will therefore remand the 
matter. On remand, the Director should ask the Petitioner to submit any additional evidence or 
information needed, and provide the company a reasonable opportunity to respond. The Director 
should then review the entire record, develop the analysis, and enter a new decision. If the decision 
1 A labor certification employer must obtain a prevailing wage determination from DOL to establish the minimum, 
acceptable wage for an offered position. See 20 C.F.R. § 656.1 0(c)(l) (requiring an employer to certify that its proffered 
wage equals or exceeds a position's prevailing wage). According to DOL, if a petitioner is unsure about where the 
Schedule A beneficiary will work at the time the prevailing wage is filed, they should use their headquarters location for 
the prevailing wage and post the notice of filing at any possible location. DOL, "OFLC [Office of Foreign Labor 
Certification] Frequently Asked Questions and Answers," Notice of Filing, 12., https://www.foreignlaborcert.doleta.gov/ 
faqsanswers.cfm#q! 176 (last visited July 9, 2019). 
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Matter of K-S- LLC 
is adverse, the Director must clearly identify any denial grounds with citation to pertinent statutes, 
regulations, case law, or USCIS policy. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to 
pay the proffered wage of the offered position. 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 tax returns, or audited financial statements. Id. 
Here, the labor certification application states the proffered wage of the offered position of registered 
nurse as $58,635 a year. The petition's priority date is June 28, 2018, its filing date. See 8 C.F.R. 
§ 204.S(d) (explaining how to determine a petition's priority date).2 
The Petitioner submitted a copy of its federal income tax return for 2017. Contrary to 8 C.F.R. 
§ 204.5(g)(2), however, the record lacks required evidence of the Petitioner's ability to pay the 
proffered wage in 2018, the year of the petition's priority date. 
Also, USCIS records indicate the Petitioner's filing of multiple immigrant petitions. A petitioner 
must demonstrate its ability to pay the proffered wage of each petition it files until a beneficiary 
obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must therefore 
demonstrate its ability to pay the combined proffered wages of this and its other petitions that were 
pending or approved as of this petition's priority date of June 28, 2018, or filed thereafter. See Patel 
v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming revocation of a petition's approval 
where, as of the grant, a petitioner did not demonstrate its ability to pay the combined proffered 
wages of multiple petitions). 
USCIS records indicate that the Petitioner had at least 10 other petitions that were pending or 
approved as of June 28, 2018, or filed thereafter. 3 The record, however, does not contain the 
proffered wages or priority dates of the other petitions. Without this information, we cannot 
determine the Petitioner's ability to pay the combined proffered wages of all applicable petitions. 
Because the Director did not notify the Petitioner of this deficiency, we will remand the matter. 
On remand, the Director should instruct the Petitioner to provide the proffered wages and priority 
dates of its other petitions. The Petitioner may also submit additional evidence of its ability to pay, 
2 The Director's request for additional evidence incorrectly identified the petition's priority date as March 8, 2005. That 
is the priority date of an approved petition that another company filed for the Beneficiary. The Petitioner therefore need 
not demonstrate its ability to pay the proffered wage before 2018. 
3 ~ . . . . 
~-----------~ USCIS denied two of the petitions, but they remain pending on appeal. 
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Matter of K-S- LLC 
including documentation of any wages it paid to applicable beneficiaries in 2018 or supporting the 
ability-to-pay factors stated in Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). The 
Director should also instruct the Petitioner to submit copies of an annual report, federal tax return, or 
audited financial statements for 2018. 
IV. THE BENEFICIARY'S EDUCATIONAL QUALIFICATIONS 
Finally, the record does not establish the Beneficiary's educational qualifications for the offered 
pos1t10n. A petitioner must establish a beneficiary's possession of all of a position's job 
requirements by a petition's priority date. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(1)(3)(ii)(B). 
Here, the labor certification application states the minimum educational requirements of the offered 
position of registered nurse as a U.S. associate's degree or a foreign equivalent degree in nursing. 
The application specifies that the Petitioner will not accept an alternate combination of education 
and experience. 
The Petitioner submitted copies of a nursing diploma, transcripts, and certificates from India. The 
documents indicate that, by the petition's priority date, the Beneficiary completed a three-year 
nursing program and obtained government certifications as a nurse and midwife. Contrary to the 
minimum educational requirements stated on the labor certification application, however, the record 
lacks evidence that one of the credentials equates to a U.S. associate's degree in nursing. The 
Petitioner therefore has not demonstrated the Beneficiary's educational qualifications for the offered 
position. 
On remand, the Director should instruct the Petitioner to submit additional evidence of the 
Beneficiary's possession of a foreign degree that equates to a U.S. associate's degree. The Director 
should afford the Petitioner a reasonable period to respond to this issue and the others raised in this 
opinion. Upon receipt of a timely response, the Director should review the entire record and enter a 
new decision. 
V. CONCLUSION 
The Director did not consider all of the evidence regarding the offered position's worksite. Also, the 
Petitioner has not demonstrated its ability to pay the combined proffered wages of this and other 
petitions from this petition's priority date onward, or the Beneficiary's qualifying education for the 
offered position. 
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 K-S- LLC, ID# 2994955 (AAO July 22, 2019) 
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