remanded EB-3 Case: Nursing

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 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 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 disregarded proof 
of its ability to pay the combined proffered wages 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 tiles 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 (USerS). See section 204 of the Act. 
8 U .S.C. § 1154. If USerS approves the 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, DOL has determined that the United States lacks 
enough able, willing, qualified, and available workers. 20 C.F.R. § 656.5. 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. ld Because employers need not test U.S. labor markets 
tor workers in Schedule A positions. DOL has authorized USerS to adjudicate labor certification 
Matter of W-S-S- Inc. 
applications for nurses during visa petition proceedings. 20 C.F.R. § 656.15(a). Thus, in this case, 
USCIS rules on both the petition and its accompanying labor certification. 
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 differences between the annual proffered wages and actual wages paid. 
If net income and net current assets are insufficient, USC IS may consider other factors affecting a 
petitioner's ability to pay. See Matter of Sonef?awa, 12 I&N Dec. 612, 614-15 (Reg'! Comm'r 
1967). 1 
Here, the labor certification with a priority date of December 21, 20152 states the proffered wage of 
the offered position of registered nurse as $63,398 a year. The Petitioner provided copies of its 
federal income tax returns for 2015, the year of the petition's priority date. The Director found 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 1-140 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. 3 
Where a petitioner has filed petitions for multiple beneficiaries, it must demonstrate that its job offer 
to each beneficiary is realistic, and that it has the ability to pay the proffered wage to each 
beneficiary. See 8 C.F.R. § 204.5(g)(2); see also 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). Otherwise, if the Petitioner's amounts of net income or net current assets 
equal or exceed each individual petition's proffered wage. the Petitioner could 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'! Comm'r 1977) (holding that the ability-to-pay requirement 
must establish a job offer as "realistic"). Thus, the Petitioner must establish its ability to pay this 
1 
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 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936,942-43 
(S.D. Cal. 20 15). 
2 
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). 
1 
Although we will not prorate the proffered wage for the priority date year, we may consider the short period of time 
between the priority date and the end of the year under our totality of the circumstances analysis. 
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Matter of W-S-S- Inc. 
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. 
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 !50 other 
petitions that were pending or filed after December 21, 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.
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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 Sonegawa. 
We note that on appeal, the Petitioner contends 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 I ,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). Here, 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 contends that the company's business model ensures its ability to pay all of its 
beneficiaries. Because the Petitioner charges customers more for its employees' services than it 
spends on their compensation, he states that the company generates more profits with each additional 
nurse it hires. This contention, however, overlooks the financial effect of foreign nationals. like the 
Beneficiary, who remain outside the United States 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 foreign nationals, however, do not generate income 
for the Petitioner until they obtain immigrant visas and enter the United States, which may take 
4 
We note that the Petitioner submitted copies of state quarterly tax returns indicating the individual wages of some of its 
employees in 2015. On the copies. however, the last names of the employees are "'whited out.'' USC IS is therefore 
unable to accurately determine whether the Petitioner paid other pending beneficiaries that year. To establish payment of 
wages to pending beneficiaries in 2015, the Petitioner must submit evidence identifying the beneficiaries by their full 
names. 
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Matter ofW-S-S- Inc. 
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 establish its 
ability to pay based on its business model. 
III. 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 
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(W-S-S- Inc., ID# 384592 (AAO Jan. 8, 2018) 
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