remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 8, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of nursing staff, 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 )(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 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 asserts that the Director erred in finding it unable to pay the combined 
proffered wages of this and other petitions. 1 
Upon de novo review, we will withdraw the Director's decision and remand this matter for further 
proceedings consistent with the following opinion. 2 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration usually 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 then submits 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. If USCIS approves the petition, the foreign national may finally apply for an 
1 
The Form 1-2908, Notice of Appeal or Motion, indicated that the Petitioner would provide a brief and/or additional 
evidence within 30 days of the appeal's filing. As of this decision's date, however, almost one year after the appeal's 
filmg, we have not received any additional submissions from the Petitioner. 
2 
While this appeal was pending, USC IS approved another skilled worker petition by the Petitioner for the Beneficiary. 
The approval of the second petition did not moot the appeal, however, as this petition's approval would entitle the 
Beneficmry to an earlier priority date. See 8 C.F.R. § 204.5(e) (allowing a beneficiary of multiple, approved, 
employment-based petitions to use the earliest priority date). 
Matter of W-S-S-, Inc. 
immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of 
the Act, 8 U.S.e. § 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. The DOL has also found 
that employment of foreign nationals in these "Schedule A" positions will not hurt the wages and 
working conditions of U.S. workers with similar jobs. !d. Because Schedule A positions do not require 
tests of U.S. labor markets, the DOL has authorized USCIS to adjudicate certification applications tor 
nurses during visa petition proceedings. 20 e.F.R. § 656.15(a). Thus, in this case, USCIS rules on both 
the petition and its accompanying labor certification application. 
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. !d. 
In determining ability to pay, USeiS 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, users examines whether it generated annual amounts of net income or net current 
assets sufficient to pay any differences between the proffered wage and actual wages paid. If net 
income and net current assets are insufficient, users may consider other factors affecting a 
petitioner's ability to pay. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'! eomm'r 
1967).3 
Here, the labor certification with a priority date of December 7, 2015, 4 states the proffered wage of 
the offered position of registered nurse as $66,100 a year. The Petitioner provided copies of its 
federal income tax returns for 2015, the year of the petition's priority date. The Director tound that 
based on the evidence for 2015, the Petitioner had not established its ability to pay the proffered 
wage of this petition and its other I-140 petitions. We are remanding this matter to the Director to 
gather additional information on the multiple beneficiaries and to request additional evidence of the 
Petitioner's ability to pay in 2016, so that USCIS may analyze the totality of the Petitioner's 
circumstances under Sonegawa. 5 
In response to the Director's request for evidence, the Petitioner asserted that the Director erred in 
requiring it to demonstrate an ability to pay the combined proffered wages of this and other petitions 
3 
Federal courts have upheld our 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, 118 (I st Cir. 2009); Estrada- Hernandez v. Holder, I 08 F. Supp. 3d 936, 942-43 
(S.D. Cal. 20 15). 
4 
This petition's priority date is the date of the petition's filing. See 8 C.F.R. § 204.5(d) (explaining how to determine a 
petition's priority date). 
5 
Although we w~ll not prorate the proffered wage for the priority date year. we may consider the short period of time 
between the pnonty date and the end of the year under our totality of the circumstances analysis. 
2 
Matter of W-S-S-, Inc. 
it filed. The Petitioner argued that neither the Act nor the regulations require it to demonstrate its 
ability to pay combined proffered wages of multiple petitions. 
The regulations do not specifically address the ability to pay of petitioners with multiple oending or 
filed petitions. But the regulations require a petitioner to demonstrate its ability to pay the proffered 
wage of each petition it files from the petition's priority date onward. 8 C.F.R. § 204.5(g)(2). The 
Petitioner here must therefore demonstrate its ability to pay the proffered wage of this and other 
petitions that were pending or filed after this petition's priority date.6 See Patel v. Johnson. 
2 F. Supp. 3d 108, 124 (D. Mass. 20 14) (affirming our revocation of a petition's approval where, by 
the filing's grant, the petitioner did not demonstrate its ability to pay the combined proffered wages 
of multiple beneficiaries). Otherwise, if the Petitioner's annual amounts of net income or net current 
assets meet or exceed the proffered wage of each pending petition, the company would 
unrealistically demonstrate an ability to pay an unlimited number of beneficiaries. See Malter of' 
Great Wall, 16 l&N Dec. 142, 144-45 (Acting Reg'! Comm'r 1977) (holding that the purpose ofthe 
ability-to-pay requirement is to establish a job offer as "realistic"). 
The Director cited 55 other petitions filed by the Petitioner that were pending after this petition's 
priority date. USCIS records, however, indicate the Petitioner's submission of over 150 other 
petitions that were pending or filed after December 7, 2015. 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 2015 and 2016. The Director should further ask the 
Petitioner to submit copies of its annual report, federal income tax returns, or audited financial 
statements for 2016. The Petitioner may also submit additional evidence of its ability to pay, 
including evidence supporting the factors stated in SoneRawa. 
The Petitioner contends that its business model ensures its ability to pay all its beneficiaries. 
Because the Petitioner charges customers more for its employees' services than it pays the workers, 
he states that the company's income increases with each additional nurse it hires. This argument, 
however, overlooks the financial effect of foreign nationals who do not (or cannot) work for the 
Petitioner during the immigration process. The Petitioner must demonstrate its ability to pay the 
proffered wages of these beneficiaries from the filing dates of their petitions. See 8 C.F.R. 
§ 204.5(g)(2). The beneficiaries, however, often do not generate income for the Petitioner until they 
obtain immigrant visas, which may occur months or even years after the filings of their petitions. 
Because many of the Petitioner's beneficiaries do not work for it while their petitions remain 
pending, the record does not support the Petitioner's ability to pay based on its business model. 
6 
The Petitioner would not need to demonstrate its ability to pay combined proffered wages for any year in which its 
payments to the Beneficiary equaled or exceeded the annual proffered wage. 
3 
.
Matter of W-S-S-, Inc. 
We note that on appeal, the Petitioner also asserts that the Director erred in disregarding a letter from 
its accounting manager 
as proof of its ability to pay. The letter asserts the Petitioner's ability to pay 
and provides additional financial information about the company, which, as of 2016, employed more 
than 1,000 people. The Petitioner notes that the regulation at 8 C.F.R. § 204.5(g)(2) allows a 
statement from a financial officer of a petitioner with at least 100 employees to establish its ability to 
pay. The regulations, however, do not require the Director to accept the letter as proof of the 
Petitioner's ability to pay. See 8 C.F.R. § 204.5(g)(2) (stating that a director "may accept a 
statement from a financial officer" to establish a petitioner's ability to pay). In this case. the 
Petitioner must demonstrate its ability to pay combined proffered wages of multiple petitions and we 
find that the Director therefore did not abuse his discretion by requiring more than the letter as proof 
of the company's ability to pay. The Petitioner also submitted a copy of a decision we issued in a 
prior appeal, accepting a letter from a financial officer as proof of the Petitioner's ability to pay. As 
a non-precedent decision, however, this 2004 opinion does not bind us in this matter. See 8 C.F.R. 
§ 103.1 O(b) (stating that, in cases involving the same issues, immigration officers need only follow 
decisions "designated to serve as precedents"). 
III. THE PETITIONER'S INTENTION TO EMPLOY THE BENEFICIARY 
IN THE OFFERED POSITION 
Although unaddressed by the Director, the record also does not establish the Petitioner's intention to 
employ the Beneficiary in the offered position. 
A petitioner must intend to employ a beneficiary under the terms of an accompanying labor 
certification. See Matter olSunoco Energy Dev. Co., 17 I&N Dec. 283, 284 (Reg'! Comm'r 1979) 
(affirming a petition's denial where the petitioner sought to employ a beneficiary in a geographical 
area unstated on the accompanying labor certification). 
Here, the labor certification states the Petitioner's intention to employ the Beneficiary at a client 
hospital in California at an annual proffered wage of $66,100. As previously noted, 
however, the Petitioner filed a later petition for the Beneficiary. Although still seeking to employ 
the Beneficiary as a registered nurse, the new petition states the Petitioner's intention to employ her 
at a hospital in Texas at a proffered wage of$60,362. 
The Petitioner's most recent job offer to the Beneficiary - in a different state with a different 
proffered wage - casts doubt on the company's intention to employ her in the offered position. On 
remand, the Director should ask the Petitioner to submit additional evidence of its intention to 
employ the Beneficiary under the terms of the accompanying labor certification. 
IV. CONCLUSION 
The record lacks information on the Petitioner's ability to pay this beneficiary and the beneficiaries 
of other I -140 petitions. The Director should ask the Petitioner to provide all the evidence and 
4 
Matter C?f W-S-S-, Inc. 
information discussed above and afford it a reasonable period in which to respond. Upon receipt of 
a timely response, the Director should review the entire record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter o.fW-S-S-. Inc., ID# 439238 (AAO Jan. 8, 2018)