remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 08309028 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: APR. 17, 2020 
The Petitioner, a nursing facility, seeks to employ the Beneficiary as a registered nurse. It requests 
professional classification for the Beneficiary under the third preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C. § 1153(b )(3)(A)(ii). This 
employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor a professional 
with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center initially approved the petition. The Director subsequently 
revoked the approval on the ground that the notice of the filing of an application for labor certification 
did not comply with regulatory requirements because it appeared the Petitioner would pay the 
Beneficiary less than the prevailing wage and provide fewer hours of work than specified on the labor 
certification application. 
On appeal the Petitioner asserts that it has not paid the Beneficiary less than the proffered wage nor 
provided fewer hours of work than specified on the labor certification because it has never employed 
the Beneficiary. 
Upon de nova review, we will withdraw the Director's decision and remand the case for further 
consideration of the Petitioner's ability to pay the proffered wage. 
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, 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); see also 20 C.F.R . 
§ 656.15. 
Section 205 of the Act, 8 U.S.C. § 1155, provides that "[the Secretary of the Department of Homeland 
Security] may, at any time, for what he deems to be good and sufficient cause, revoke the approval of 
any petition approved by him under section 204 [Procedure for Granting Immigrant Status]." By 
regulation this revocation authority is delegated to any USCIS officer who is authorized to approve an 
immigrant visa petition "when the necessity for the revocation comes to the attention of [USCIS]." 
8 C.F.R. § 205.2(a). 
II. ANALYSIS 
A. Notice of Filing of the Labor Certification Application 
The petition was filed in February 2016 together with a notice of filing of the labor certification 
application stating, among other things, that the registered nurse position would comprise 40 hours of 
work per week at an annual salary of $70,866, as well as a prevailing wage determination from the 
DOL indicating that $70,866 was the prevailing wage for registered nurses in the area ofl I 
New York. The petition was approved in November 2016, though the record indicates that the 
Beneficiary remains in her home country of the Philippines and has not yet consular processed or taken 
up employment as a registered nurse in the United States. 
In May 2019 the Director issued a notice of intent to revoke (NOIR) the petition's approval. The 
Director stated that: 
It has come to the attention of USCIS that the petitioner has not been paying the 
prevailing or offered wage of $70,866 per annum, nor providing the work hours to the 
beneficiary as stipulated in the labor certificate or posting. Since the employer may not 
offer or pay a beneficiary less than the prevailing wage, [USCIS] finds that the 
petitioner did not make proper notice. 
The Director then reviewed an employment agreement between the Petitioner and the Beneficiary, 
dated May 31, 2018, which affirmed that the Petitioner intended to employ the Beneficiary as a 
registered nurse in New York State at a starting wage rate of $35.62 per hour, and that the Beneficiary 
intended to accept such employment. Since the employment agreement of May 2018 postdated the 
filing of the petition in February 2016, however, the Director stated that the employment agreement 
had no probative value in this proceeding. 
The Director went on to state that: 
Since the employer may not offer or pay a beneficiary less than the prevailing wage, 
[USCIS] finds that the petitioner did not make proper notice. 
The Director reviewed the regulation at 20 C.F .R. § 656.10( d) which sets forth the notice and 
documentation requirements for applications for permanent employment certification involving 
Schedule A occupations filed under 20 C.F .R. § 656.15. The regulation states, among other things, 
that a notice posted for an ETA 9089 filed under the Schedule A procedures at 20 C.F.R. § 656.15 
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"must contain a description of the job and rate of pay, and must meet the requirements of this section." 
20 C.F.R. § 656.10(d)(6). 
The Director concluded that because the Petitioner might pay less than the prevailing wage, its notice 
of the filing of a labor certification application did not comply with the regulatory requirements. 
The NOIR was mailed to the Petitioner, but returned by the U.S. Postal to USCIS with a notice reading 
"not deliverable as addressed, unable to forward." The Director then issued a decision in August 2019 
revoking the petition's approval for the reasons explained in the NOIR. 
The Petitioner filed an appeal, indicating that a brief and/or additional evidence would be submitted 
within 30 days. No such materials were filed in that time period, however, nor any time since. 
Therefore, our appellate review is restricted to the Petitioner's statements on page 6 of the appeal form. 
The Petitioner asserts that it never received the NOIR. Our review of the record, however, confirms 
that it was mailed to the correct address. The NOIR was sent to the same address the Petitioner 
provided on its Form 1-140 petition. The revocation decision was also sent to the same address, and 
duly received by the Petitioner. 
The Petitioner contends that because it has never employed the Beneficiary, and thus could not have 
failed to pay her the prevailing wage or provide her proper work hours, there is no basis for the 
Director's finding that the Petitioner's notice of the filing of a labor certification application did not 
comply with regulatory requirements. We agree. In his decision the Director did not discuss the fact 
that the Beneficiary has never been employed by the Petitioner, but acknowledged that fact implicitly 
by refraining from any express finding that the Petitioner is paying less than the proffered wage to the 
Beneficiary and making a generic finding that the Petitioner "may ... pay a beneficiary less than the 
prevailing wage." (Emphasis added.) 
Since the Beneficiary has not consular processed and begun employment with the Petitioner, and the 
Petitioner has therefore never failed to pay the prevailing wage or provide proper work hours to the 
Beneficiary, we will withdraw the Director's finding that the notice of the filing of the labor 
certification application did not comply with applicable regulations. 
B. Ability to Pay the Proffered Wage 
We note, however, that the record lacks evidence of the Petitioner's ability to pay the proffered wage 
of this Beneficiary, as well as the beneficiaries of all its other 1-140 petitions, from the priority date of 
this petition onward. 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 
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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 
$70,866 per year and the priority date February 3, 2016. 
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. The 
Beneficiary in this case has never been employed by the Petitioner. Therefore, the Petitioner cannot 
establish its ability to pay the proffered wage based on wages paid to the Beneficiary. 
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 
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 1-140 
beneficiaries, the petitioner would be considered able to pay the proffered wage during that year. 
However, if a petitioner has filed 1-140 petitions for multiple beneficiaries, it must demonstrate that 
its job offer to each 1-140 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). 
The record in this case includes copies of the Petitioner's federal income tax returns for 2014 and 
2015, but not for 2016, the year of the petition's priority date when it was filed and approved. Nor 
does the record include any other evidence of the types identified in 8 C.F.R. § 204.5(g)(2) to 
demonstrate the Petitioner's ability to pay the proffered wage from the priority date of February 3, 
2016, onward. 
Therefore, we will remand this case so that the Director may request additional evidence of the 
Petitioner's ability to pay the proffered wage in 2016. Since the record indicates that the Petitioner 
may have filed multiple 1-140 petitions for other beneficiaries, the Director should determine whether 
that is the case and request evidence of the Petitioner's ability to pay their proffered wages in 2016 as 
well. The Petitioner must establish its ability to pay the proffered wages of this Beneficiary as well as 
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 certified ETA 9089, the "priority 
date" is the date the petition (with the completed but uncertified ET A 9089) was filed with USCIS. That date was 
February 3, 2016. 
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the proffered wages of the beneficiaries of other 1-140 petitions that were pending or approved as of 
the priority date of the current petition, or were filed between the priority date and original approval 
date of this petition. 2 
III. CONCLUSION 
Based on the foregoing analysis, we will withdraw the Director's decision and remand the case for 
further consideration of the Petitioner's ability to pay the proffered wage. The Director may, in his 
discretion, issue a new NOIR setting forth revised grounds for revocation. In such case the Petitioner 
shall have the opportunity to respond to any such grounds before a new decision is issued. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further consideration 
and the entry of a new decision consistent with the foregoing analysis. 
2 A 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 permanent residence; 
• if an T-140 petition filed on behalfof the other beneficia1y has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• before the priority date of the T-140 petition filed on behalfofthe other beneficiary. 
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