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 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 submits additional evidence and asserts that the Director erred in finding it 
unable to pay the proffered wage of this and other petitions. 
Upon de novo review, we will withdraw the Director's decision and remand this matter for further 
proceedings consistent with the following opinion. 
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 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 of 
the 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. 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. nurses. 20 C.F.R. § 656.5(a)(3)(ii). Because employers need not test U.S. labor markets for 
Schedule A positions, the DOL has authorized USCIS to adjudicate labor certification applications for 
Matter of W-S-S- Inc. 
nurses during visa petition proceedings. 20 C.F .R. § 656.15( a). Thus, in this case, US CIS 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, USCIS 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, USCIS examines whether it generated annual amounts of net income or net current 
assets sufficient to pay any difference between the proffered wage and actual wages paid. If net 
income and net current assets are insufficient, USCIS may consider other factors affecting a 
petitioner's ability to pay. See Matter of Sonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 
1967). 1 
Here, the labor certification with a priority date of February 19, 2016, 2 states the proffered 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 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 I -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 for further proceedings. 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 1-140 beneficiaries, 
including evidence supporting the factors stated in Sonegawa. 
We note that 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 combined proffered wages of this and 
other petitions it filed that remained pending or approved after this petition's priority date. The 
1 
Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See. e.g. R;ver St. 
Donuts, LLC v. Napohtano, 558 F.3d Ill, 118 (1st Cir. 2009); Estrada-Hernande::. v. Holder, 108 F. Supp. 3d 936,942-43 
(S.D. Cal. 20 15). 
2 See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority date). 
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Matter of W-S-S- Inc. 
Petitioner argued that neither the Act nor the regulations require it to demonstrate 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 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 tiled 
after this petition's priority date. Otherwise, if the Petitioner's annual amounts of net income or net 
current assets meet or exceed each petition's proffered wage in isolation, the company could 
unrealistically demonstrate an ability to pay an unlimited number of beneficiaries. See Matter l~l 
Great Wall, 16 I&N Dec. 142, 144-45 (Acting Reg'l Comm'r 1977) (holding that the ability-to-pay 
requirement establishes 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 
filed 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, as of the tiling's grant, a 
petitioner did not demonstrate its ability to pay the combined proffered wages of multiple, pending 
petitions). 
The Director found that the Petitioner had 56 other petitions that were pending or tiled after this 
petition's priority date. USCIS records, however, indicate the Petitioner's filing of at least 157 other 
petitions that were pending or filed after the priority date. 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 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 protTered 
wages of these beneficiaries from the tiling 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 
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. 
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Matter of W-S-S- Inc. 
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. 
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, e.g.. Matter of Sunoco Energy Dev. 
Co., 17 I&N Dec. 283, 284 (Reg'! Comm'r 1979) (affirming a petition's denial where a 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 as a registered 
nurse at a client hospital in California at a proffered wage of $63,400. While this appeal 
was pending, however, the Petitioner filed another petition for the Beneficiary. Although still 
seeking to employ the Beneficiary as a registered nurse, the new petition states the Petitioner's 
intention to employer her at a hospital in New Mexico at a proffered wage of $61,402. 
The Petitioner's most recent job offer to the Beneficiary - in a different location at a different 
proffered wage rate - casts doubt on its intention to employ her in the offered position. On remand, 
the Petitioner must therefore 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 decision and for the entry of a new decision. 
Cite as Matter ofW-S-S- Inc., ID# 385228 (AAO Oct. 27, 2017) 
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