remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re : 9502551 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 1, 2020 
The Petitioner 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 immigrant classification allows a U.S. employer to sponsor a foreign national for lawful 
permanent resident status to work in a position that requires at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish its ability to pay the proffered wage . 
The Petitioner bears the burden of establishing eligibility for the requested immigration benefit. See 
section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will withdraw the Director ' s 
decision and remand the appeal for the issuance of a new decision. 
I. SCHEDULE A OCCUPATIONS 
The offered position of registered nurse is a Schedule A occupation. 1 A Schedule A occupation is an 
occupation for which the U.S . Department of Labor (DOL) has determined that: (1) there are not 
sufficient U.S . workers who are able, willing, qualified, and available; and (2) the wages and working 
conditions of similarly employed U.S. workers will not be adversely affected by the employment of 
foreign workers in that occupation. Petitions involving Schedule A occupations do not require the 
petitioner to test the labor market and obtain a labor certification approval from the DOL prior to filing 
an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). Instead, the 
petitioner files a petition directly with USCIS together with a Schedule A application . 2 See 8 C.F.R. 
§ 204.5(a)(2); see also 20 C.F.R. § 656.15 . 
If USCIS approves the petition, the foreign national may 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. 
1 Schedule A occupations are codified at 20 C.F.R. § 656.5(a). The two Schedule A occupations are professional nurses 
and physical therapists . 
2 Schedule A applications are filed on ETA Form 9089, Application for Permanent Employment Certification. 
II. ABILITY TO PAY THE PROFFERED WAGE 
A petitioner must establish its ability to pay the proffered wage from the priority date of the petition 
until the beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability 
to pay must generally include annual reports, federal tax returns, or audited financial statements. Id. 
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. Id. 
In determining ability to pay, USCIS first determines whether the petitioner paid the beneficiary the 
full proffered wage each year from the priority date. If the petitioner did not pay the proffered wage 
in any given year, USCIS next determines whether the petitioner had sufficient net income or net 
current assets to pay the proffered wage (reduced by any wages paid to the beneficiary). 3 
If net income and net current assets are insufficient, USCIS may 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, or whether a beneficiary will replace a current 
employee or outsourced service. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967). 
In this case, the proffered wage is $33.00 per hour and the priority date is November 27, 2019.4 On 
the petition, the Petitioner claims to have been established in 2014, employ 70 workers, and have gross 
annual income of over $8 million. The Petitioner does not claim to have employed the Beneficiary. 
The record contains the Petitioner's 2017 and 2018 IRS Form 1120S, U.S. Income Tax Return for an 
S Corporation. At the time of filing, the Petitioner's 2019 tax returns were not yet available. The 
2018 tax return lists the Petitioner's net income as $202,458 and its net current assets as $764. 
In addition to the Beneficiary's proffered wage, the Director also reviewed the proffered wages for 27 
of the Petitioner's active beneficiaries and determined that the combined proffered wage totaled 
$1,877,907. The Director then compared the wages to the Petitioner's 2018 net income. The Director 
concluded that the Petitioner's net income and net current assets were not sufficient to establish its 
ability to pay the proffered wage to the Beneficiary as well as well as its other active beneficiaries. 
The Director also considered factors under Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l 
Comm'r 1967) in concluding that the Petitioner did not establish ability to pay. 
3 If a petitioner has filed immigrant visa petitions on behalf of multiple beneficiaries, the petitioner must establish that it 
has had the ability to pay the proffered wage to each beneficiary. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 
2014) (affirming our revocation of a petition approval where the petitioner did not demonstrate its ability to pay the 
combined proffered wages of multiple beneficiaries). Petitions filed on behalf of other beneficiaries are considered from 
the priority date of each petition (not including any year prior to the priority date of the petition being reviewed on appeal) 
until the present or until the other beneficiary obtains lawful permanent residence. Petitions that have been withdrawn or 
denied are not considered in this analysis. 
4 For Schedule A cases, the priority date is the date that the immigrant visa petition is properly filed with USCTS. 8 C.F.R. 
§ 204.S(d). Although the Petitioner requested the retention of an earlier priority date under 8 C.F.R. § 204.S(e) based on 
the approval of an immigrant visa petition filed by another employer, that petition's approval was revoked and therefore 
the earlier priority date cannot be preserved for this matter. 
2 
On appeal, the Petitioner submits financial statements 5 for the calendar year ending December 31, 
2019. As the Director did not have the opportunity to review this in the first instance, we will remand 
the petition for further consideration. Since the priority date in this matter is 2019, the Director should 
compare the Petitioner's I-140 filings pending after November 27, 2019 to the Petitioner's 2019 
financial information. On remand, the Director may request additional information related to the 
Petitioner's ability to pay, including documentation related to 2020, as well as additional information 
related to proffered wages on the Petitioner's other I-140s petitions. The Director should also consider 
any updated evidence of the size of the Petitioner's operations, including any additional sponsored 
foreign workers, the growth of its business over time, its number of employees, its reputation within 
its industry, and any other relevant factors under Matter of Sonegawa. 
The Director should also ask the Petitioner to resolve an inconsistency in the record concerning the 
hours per week that the Beneficiary will work in the offered position. On appeal, the Petitioner claims 
that the total proffered wage for each of its beneficiaries should be lower than what the Director 
calculated (using each beneficiary's hourly wage rate) because its nurses work 37.5 hours per week 
instead of 40 hours per week. In support of this claim, the record contains a contract between the 
Petitioner and a staffing services client which states that "[ a ]ny schedules in excess of 3 7 .5 hours per 
week will be considered overtime and paid at time and one-half." However, the Petitioner's November 
21, 2019 letter in support of the petition states that the Beneficiary will work 40 hours a week. 6 The 
submitted Notice of Filing also states that the offered position is for 40 hours per week, as does the 
employment contact between the Petitioner and the Beneficiary. Therefore, on remand, the Director 
should provide the Petitioner with the opportunity to address this inconsistency. 7 
Finally, on remand, the Director may request that the Petitioner explain the different addresses it has 
used on documentation submitted to various state and federal government agencies. The street address 
on this petition, Schedule A application, and the Petitioner's website is I I. 8 
However, this is also the same address as another company, ~------~ 9 Corporar filings I 
with the New York State Division of Corporations (NYSDOC) use the street address of 
I I which appears to be a shared office space. 10 In addition, the Petitioner's 2017 and 2018 tax 
5 A note to the accountant's report states that the financial statements were prepared using a "special purpose framework 
and not U.S. generally accepted accounting principles (U.S. GAAP)." Specifically, the submitted financial statement uses 
the American Institute ofCeitified Public Accountants' (AICPA) Financial Rep01ting Framework for Small- and Medium­
Sized Entities (FRF for SMEs ). The AI CPA represents the CPA profession nationally and develops standards for audits 
of private companies by CPAs. See https://www.aicpa.org. Issued in June 2013, this special purpose framework is for 
privately held owner-managed businesses and is more streamlined than the GAAP framework. Although the FRF for 
SMEs framework was developed by AICPA, it has not been acted upon by an AICPA senior technical committee or the 
Financial Accounting Standards Board. As a result, the FRF for SMEs framework currently has no official or authoritative 
status. See https://www.aicpa.org/interestareas/frc/accountingfinancialreporting/pcfr/frf-smes- faq .html. Because the 
submitted financial statements have not been prepared in accordance with GAAP, they would not appear to meet the 
requirements of financial statements under 8 C.F.R. § 204.5(g)(2). 
6 It appears that this document originally stated that the offered position was 3 7 .5 hours per week and was changed at some 
point using correction fluid to state 40 hours per week. 
7 The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the 
truth lies. See Matter of Ho, 19 I&N Dec. 582 591-92 BIA 1988). 
8 The Petitioner's website is https: Although the company is named~---------~ 
the website states the company's name F"------,____,' 
9 The website for this company is https:~----~ 
10 NYSDOC business information is available at https://www.dos.ny.gov/corps/busentitysearch.html. 
3 
returns use~-------~ for the Petitioner's address, which appears to be the residential 
address of the Petitioner's owner, and the address that I I used on its NYSDOC filings. On 
remand, the Director may obtain an explanation from the Petitioner about these different addresses, 
why I luses the same addresses, and provide evidence that it has an actual business location, 
including photographs of its office space. 
III. CONCLUSION 
We are remanding the appeal. On remand, the Director should allow the Petitioner a reasonable period to 
provide evidence relating to the Petitioner's ability to pay the proffered wage, resolve inconsistencies in 
the stated hours per week that the Beneficiary and its other immigrant visa petition beneficiaries will work, 
and explain the multiple addresses used by the Petitioner. Upon receipt of the Petitioner's 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 entry of a new 
decision consistent with the foregoing analysis. 
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