remanded EB-3 Case: Nursing

MATTER OF W-S-S-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 27,2017 
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 his 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 submits additional evidence and asserts that the Director erred in finding it 
unable to pay the combined proffered wages of this and other petitions. 
Upon de novo review, we will withdraw the Director's decision and remand the matter for further 
proceedings consistent with the following decision. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Employment-based immigration usually follows a three-step process. First, an employer files a 
labor certification application 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, an employer must next submit the certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. If 
USCIS approves a petition, a foreign national may finally apply for an immigrant visa abroad or, if 
eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255. 
For professional nursing positions, however, the DOL has determined that the United States lacks 
enough able, willing, qualified, and available workers. 20 C.P.R. § 656.5. The DOL has also found 
that employment of foreign nationals in these "Schedule A., occupations will not hurt the wages and 
working conditions ofU.S. nurses. !d Because Schedule A positions do not require tests of U.S. labor 
markets, the DOL has authorized USCIS to adjudicate labor certification applications for nurses during 
visa petition proceedings. 20 C.P.R. § 656.15(a). Thus, in this case, USCIS rules on both the petition 
and its accompanying labor certification application. 
Matter of W-S-S-, Inc. 
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 e.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 a 
beneficiary the full proffered wage, users examines whether the petitioner generated sufficient 
annual amounts of net income or net current assets to pay any difference between an annual 
proffered wage and actual wages paid. If net income and net current assets are insufficient, USeiS 
may also consider other factors affecting a petitioner's ability to pay. See Matter (~{ Sonegawa, 
12 I&N Dec. 612,614-15 (Reg'l eomm'r 1967).1 
Here, the labor certification with a priority date of January 11, 2016,2 states the protTered wage of 
the offered position of registered nurse as $63,400 a year. As of the Director's decision, however, 
required evidence of the Petitioner's ability to pay the proffered wage in 2016, the year of the 
petition's priority date, was not yet available. In determining the Petitioner's ability to pay, the 
Director considered the company's federal tax returns for 2015, the most recent returns available, 
and found that the Petitioner had not established its ability to pay the Beneficiary in this case and the 
beneficiaries of its other l-140 petitions. 
Required evidence of the Petitioner's ability to pay in 2016 should now be available. We will 
therefore withdraw the Director's decision and remand this matter. On remand, the Director should 
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 the Beneficiary in this case and its other sponsored I -140 beneficiaries, including evidence in 
support of the factors stated in Sonegawa. 
On appeal, the Petitioner asserts that the Director erred in requiring it to demonstrate its ability to 
pay combined proffered wages of this and other petitions it filed that remained pending or approved 
after this petition's priority date. The Petitioner argues that neither the Act nor the regulations 
require demonstration of an ability to pay combined proffered wages of multiple petitions. The 
regulations do not specifically address petitioners with multiple petitions, but the regulations require 
a petitioner to demonstrate its ability to pay the proffered wage of each petition it tiles from that 
1 Federal courts have upheld USCIS' 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. 2015); Rivzi v. Dep't of Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff"d, 
627 Fed. App'x. 292 (5th Cir. 20 15). 
2 
See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
2 
Matter of W-S-S-, Inc. 
petition's pnonty 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 its other petitions that remained pending 
or approved after January 11,2016. Otherwise, if the Petitioner's 2016 amounts of net income or net 
current assets meet or exceed the proffered wage of each individual pending or approved petition, 
the company would unrealistically demonstrate an ability to pay an unlimited number of 
beneficiaries. See Matter of Great Wall, 16 I&N Dec. 142, 144-45 (Acting Reg'l Comm'r 1977) 
(stating that the purpose of the ability-to-pay requirement is to establish a job offer as "realistic"). 
Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the beneficiaries of 
the other I -140 petitions that were pending or tiled after the priority date of the current petition. 3 See 
Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's 
approval where, by the filing's grant, a petitioner did not demonstrate its ability to pay the combined 
proffered wages of multiple, pending and approved petitions). 
The Director cited 56 other petitions filed by the Petitioner that were pending or tiled in 2016 after 
this petition's priority date. USC IS records, however, indicate at least 15 8 other petitions that were 
pending or filed after the priority date. Thus, the Petitioner must demonstrate its ability that year to 
pay the combined proffered wages of at least 159 petitions, including this one. On remand, the 
Director should therefore request missing information regarding these other beneficiaries, 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 that year. 
We also note that on appeal, the Petitioner's president/chief executive officer (CEO) asserts that its 
business model ensures its ability to pay the proffered wages of all its pending and approved 
beneficiaries because it charges customers more for its employees' services than it spends on the 
workers' compensation. As the president/CEO states in a letter: "With more nurses, we can bill 
more hours and thus generate greater profit." This argument, however, overlooks the financial 
effects of foreign nationals, like the Beneficiary, who do not (or cannot) work for the Petitioner 
during the immigration process. The Petitioner must demonstrate its ability to pay the proffered 
wages ofthese beneficiaries from the filing dates of their petitions. See 8 C.F.R. § 204.5(g)(2). The 
beneficiaries, however, often cannot 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 company's assertion that its business model ensures its ability to pay the proffered wages 
of all its petitions from their priority date onward. 
3 The Petitioner's ability to pay the proffered wage of one of the other 1-140 beneficiaries is not considered: 
• After the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a 
pending appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
3 
.
Matter of W-S-S-, Inc. 
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 described in the labor certification application. A 
petitioner must intend to employ a beneficiary under the terms of an accompanying labor 
certification. See, e .g. , Matter of Sunoco Energy Dev. Co., 17 I&N Dec. 283, 284 (Reg' l Comm 'r 
1979) (affirming a petition ' s denial where a petitioner sought to employ a beneficiary in a different 
U.S. state than listed on a labor certification). 
Here, the labor application states the Petitioner's intention to employ the Beneficiary at a client 
hospital in California at an annual proffered wage of $63,400. While this appeal was 
pending, however, the record indicates the Petitioner's filing of another petition for the Beneficiary .4 
Although still seeking to employ the Beneficiary as a registered nurse, the new petition states the 
Petitioner ' s intention to employ him at a client hospital in Texas at a proffered wage of 
$60,362. 
The Petitioner's most recent job offer to the Beneficiary casts doubt on the company's intention to 
employ him in the offered position. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) (requiring 
a petitioner to resolve inconsistencies of record by independent, objective evidence pointing to 
where the truth lies). On remand, the Director should therefore ask the Petitioner to establish its 
intention to employ the Beneficiary in the offered position. 
IV. CONCLUSION 
The record lacks required evidence of the Petitioner 's ability to pay the proffered wage in the year of 
the petition's priority date and evidence of the Petitioner's intent to employ the Beneficiary in the 
offered position. On remand, the Director should afford the Petitioner a reasonable amount of time 
to provide the evidence and information discussed above. Upon timely receipt of the Petitioner's 
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 ofW-S-S-. Inc., ID# 481524 (AAO Oct. 27, 2017) 
4 
USC IS records identify the petition by the receipt number 
4