remanded EB-3 Case: Nursing

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services be 
FILE: EAC-04-159-5 1434 Office: VERMONT SERVICE CENTER 
 Date: 
c 
MY 1 9 2006 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Petition for Alien Worker as a Skilled Worker or Professional Pursuant to Section 203(b)(3) 
of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(3) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
/mu ~odert P. Wiemann, Chie 
Administrative Appeals Office 
EAC-04-159-5 1434 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded. 
The petitioner is a skilled nursing home. It seeks to employ the beneficiary permanently in the United States 
as a staff nurse. The petitioner asserts that the beneficiary qualifies for certification pursuant to 20 C.F.R. 
3 656.10, Schedule A, Group I. The petitioner submitted the Application for Alien Employment Certification 
(ETA 750) with the Immigrant Petition for Alien Worker (1-140). The director determined that the petitioner 
had not established that it had the continuing ability to pay the beneficiary the proffered wage beginning on 
the priority date of the visa petition and denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. 
The procedural history in this case is documented by the record and incorporated into this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's November 19, 2004 denial, the single issue in this case is whether or not the 
petitioner has the ability to pay the proffered wage as of the priority date and continuing until the beneficiary 
obtains lawful permanent residence. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(3)(A)(i), provides 
for the granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled labor (requiring at least two years training or 
experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 
States. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and who are members of the professions. 
The regulation at 8 C.F.R. 
 204.5(g)(2) states: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment-based 
immigrant which requires an offer of employment must be accompanied by evidence that the 
prospective United States employer has the ability to pay the proffered wage. The petitioner 
must demonstrate this ability at the time the priority date is established and continuing until the 
beneficiary obtains lawful permanent residence. Evidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial statements. In a case 
where the prospective United States employer employs 100 or more workers, the director 
may accept a statement from a financial officer of the organization which establishes the 
prospective employer's ability to pay the proffered wage. 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 [Citizenship and Immigration Services (CIS)]. 
Employment-based petitions depend on priority dates. The priority date for Schedule A occupations is 
established when the 1-140 is properly filed with CIS. 8 C.F.R 3 204.5(d). The petition must be accompanied 
by the documents required by the particular section of the regulations under which it is submitted. 8 C.F.R. 
5 103.2(b)(l). The priority date of the petition in this case is April 29, 2004. The proffered wage as stated on 
the Form ETA 750 is $14.50 per hour, which amounts to $30,160.00 annually. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all pertinent 
EAC-04-159-5 1434 
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evidence in the record, including new evidence properly submitted upon appeal1. No relevant evidence was 
submitted on appeal. Other relevant evidence in the record includes a copy of the petitioner's financial report for 
2002 and 2003 and a letter from the petitioner dated October 13, 2004. The record does not contain any other 
evidence relevant to the petitioner's ability to pay the wage. 
The petitioner states on appeal that it is a non-profit entity with the ability to pay the proffered wage. The 
petitioner also states that its current assets combined with "assets whose use is limited are greater than its current 
liabilities and it had a large amount of cash at the end of 2003. 
The petitioner must establish that its job offer to the beneficiary is a realistic one. The petitioner's ability to pay 
the proffered wage is an essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 
16 I&N Dec. 142 (Acting Reg. Cornrn. 1977). See also 8 C.F.R. 5 204.5(g)(2). In evaluating whether a job offer 
is realistic, CIS requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's 
proffered wage, although the totality of the circumstances affecting the petitioning business will be considered if 
the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Cornm. 1967). 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
this evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, on the Form ETA 750B, signed by the beneficiary on February 16, 2004, the beneficiary did not 
claim to have worked for the petitioner. 
As another means of determining the petitioner's ability to pay the proffered wage, CIS will next examine the 
petitioner's net income figure as reflected on the petitioner's federal income tax return for a given year, 
without consideration of depreciation or other expenses. Reliance on federal income tax returns as a basis for 
determining a petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos 
Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9~ Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Tex. 
1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 
(N.D. Ill. 1982), afd., 703 F.2d 571 (7" Cir. 1983). In K.C.P. Food Co., Inc., the court held that the Immigration 
and Naturalization Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the 
petitioner's corporate income tax returns, rather than the petitioner's gross income. 623 F. Supp. at 1084. The 
court specifically rejected the argument that the Service should have considered income before expenses were 
paid rather than net income. Finally, there is no precedent that would allow the petitioner to "add back to net cash 
the depreciation expense charged for the year." See Elatos Restaurant Corp., 632 F. Supp. at 1054. 
The evidence indicates that the petitioner is a non-profit organization. The record before the director closed on 
October 14, 2004 with the receipt by the director of the petitioner's submissions in response to the request for 
evidence (RFE). As of that date the petitioner's federal tax return for 2004, if applicable, was not yet due. Since 
the tax return for 2004, which covers the period of time from the priority date to the date the record closed before 
the director, was not available at the time the petitioner submitted evidence in response to the RFE, CIS will look 
at previous years' tax returns to determine the petitioner's ability to pay the proffered wage. The record does not 
' The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which are 
incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case provides no 
reason to preclude consideration of any of the documents newly submitted on appeal. See Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988). 
EAC-04-159-5 1434 
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contain the petitioner's Form 990 Return of Organization Exempt from Income Tax. The record does contain a 
copy of the petitioner's audited financial report for 2002 and 2003. 
For the petitioner's audited financial report, CIS considers net income to be the figure labeled (loss) income 
before adjustment for prior years' items. 
The petitioner's audited financial report shows the amounts for (loss) income before adjustment for prior years' 
items in the table below. 
Tax Wage increase needed Surplus or 
year Net income to pay the proffered wage deficit 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2002 and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2003. 
As an alternative means of determining the petitioner's ability to pay the proffered wage, CIS may review the 
petitioner's net current assets. Net current assets are an entity's current assets less its current liabilities. 
Generally, CIS does not look at a non-profit petitioner's net current assets because this information would not 
be listed on the Form 990 Return of Organization Exempt from Income Tax. However, since this information is 
listed on the petitioner's audited financial report, CIS will look at the petitioner's net current assets. 
Calculations based on the petitioner's audited financial report yield the amounts for net current assets as 
shown in the following table. 
Tax Net Current Assets Wage increase needed 
year End of year to pay the proffered wage 
* The full proffered wage, since the record contains no evidence of any wage 
payments made by the petitioner to the beneficiary in 2002 and 2003. 
The above information is insufficient to establish the petitioner's ability to pay the proffered wage in 2003. 
The petitioner states on appeal that "the position of [the petitioner] is [that] the not-for-profit entity has the ability 
to pay the offered wage as of the date of this filing and continuing to the present." The record also contains a 
letter from the petitioner dated October 13, 2004 stating that "[it] has been in business since 1974 and employs 
240 employees. Its previous approximate gross income was $28M and [it had] a net income of $1M." 
EAC-04-159-5 1434 
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The regulation at 8 C.F.R. 3 204.5(g)(2), quoted full above, states that "where the prospective United States 
employer employs 100 or more workers, the director may accept a statement from a financial officer of the 
organization which establishes the prospective employer's ability to pay the proffered wage." According to the I- 
140 petition, the individual filing the appeal is the petitioner's chief financial officer. Thus, the AAO will 
exercise its discretion and accept the letter from the petitioner dated October 13, 2004 as evidence of the 
petitioner's ability to pay the proffered wage. 
The petitioner likewise states that "there is a line labeled 'assets whose use is limited.' These are current assets 
which are designated [for a specific] purpose. This number plus our current assets are almost double our current 
liabilities." According to the audited financial report, "assets whose use is limited are "[tlrustee funds held under 
bond indenture, net of amounts required for current liabilities." The AAO will not alter the petitioner's financial 
report after it has been audited by a certified public accountant and add to the petitioner's current assets an 
amount that has been specifically set apart for limited use. In addition, it is questionable whether assets set apart 
for limited use can be used to pay the proffered wage because nothing in the record indicates that those assets can 
in fact be used to pay the proffered wage. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofSici, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 
1972)). 
The petitioner also states that "we have cash at the end of the year of $860,402.00 which is available to pay the 
hourly wage stated in the petition." CIS, in calculating the petitioner's net current assets, takes into account the 
petitioner's cash on hand because current assets include cash on hand, inventories, and receivables expected to 
be converted to cash within one year. CIS will not look at the petitioner's assets, including cash on hand, 
without also taking into account the petitioner's liabilities. 
After a review of the evidence, it is concluded that the petitioner has established its ability to pay the salary 
offered as of the priority date of the petition and continuing until the beneficiary obtains lawful permanent 
residence. 
For the reasons discussed above, the assertions of the petitioner and evidence on appeal has overcome the 
decision of the director. 
Beyond the decision of the director, the issue of whether the petitioner has established that the beneficiary 
possessed the necessary licensing credentials required by the regulations applicable to the admission of registered 
nurses under Schedule A, Group I warrants reexamination. An application or petition that fails to comply with 
the technical requirements of the law may be denied by the AAO even if the Service Center does not identify 
all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 299 F. 
Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The director's decision is 
silent on whether the beneficiary possessed the necessary licensing credentials, and evidence in the record 
does not comport with CIS'S qualification requirements. 
The regulation at 20 C.F.R. 3 656.22(~)(2) states: 
An employer seeking a Schedule A labor certification as a professional nurse (§656.10(a)(2) of this part) 
shall file, as part of the labor certification application, documentation that the alien has passed the 
Commission on Graduates of Foreign Nursing Schools (CGFN) Examination; or that the alien holds a 
EAC-04-159-5 1434 
Page 6 
full and unrestricted (permanent) license to practice nursing in the State of intended employment.2 
Application for certification of employment as a professional nurse may be made only pursuant to this 
§656.22(c), and not pursuant to $4 656.21,656.21a, or 656.23 of this part. 
According to the Form ETA 750 and the 1-140 petition, the beneficiary's state of intended employment is 
New Hampshire. The record in this case does not contain evidence that the beneficiary has passed the 
CGFNS, has passed the NCLEX-RN examination and has a letter from New Hampshire, or holds a full and 
unrestricted (permanent) license to practice nursing in New Hampshire. 
In the letter dated October 13, 2004, the petitioner states that the beneficiary "[has] sat for the NCLEX-RN 
examination and successfully pass[ed] the test (evidence of NY license issuance)." The petitioner also states 
that "[the beneficiary] would not be issued with a New York RN certificate had she not successfully passed 
the NCLEX and . . . the Texas State Board of Nursing only accepts endorsement (if a foreign-educated has no 
CGFNS) if the original license was obtained by passing the examination." Evidence in support of those 
statements includes copies of the beneficiary's registered professional nurse license and registration certificate 
from New York granted to the beneficiary on June 1, 1999, a copy of the beneficiary's registered nurse 
license and identification from Texas granted to the beneficiary on September 16, 2004, a copy of relevant 
sections of New York's regulations, a copy of relevant sections of Texas' regulations, and a copy of relevant 
sections of New Hampshire's regulations. 
A petitioner must establish the beneficiary's eligibility for the visa classification at the time of filing; a 
petition cannot be approved at a future date after eligibility is established under a new set of facts. Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Cornrn. 1971). Therefore, the petitioner must show that the beneficiary 
possessed the necessary licensing credentials before the priority date. The beneficiary's registered nurse 
license for Texas was granted on September 16, 2004, four-and-a-half months after the priority date. Thus, 
the AAO will not look at the beneficiary's license from Texas or relevant sections of Texas' regulations in the 
record. 
According to New York's regulations, the professional education requirement for registered professional 
nursing includes "a general nursing course of at least two academic years in a country outside the United 
States and its territories or possessions that is satisfactory to the department and that the licensing authority or 
appropriate governmental agency of said country certifies to the department as being preparation for practice 
as a registered professional nurse." This part of the regulation is silent on whether passing the NCLEX-RN 
examination is necessary. Thus, the beneficiary's license from NY and relevant sections of New York's 
regulations are insufficient to show that the beneficiary's passed the NCLEX-RN examination. 
The record also includes New Hampshire's regulations, which states in pertinent part that "applicants for 
licensing by endorsement shall . . . [vlerify the successful completion of a nursing educational program . . . 
[and] [plrovide documentation that fulfills board requirements of a current practical nursing license in one 
jurisdiction." Again, this part of the regulation is silent on whether passing the NCLEX-RN examination is 
On October 2,2002, the Department of Labor advised the Service, now CIS, that because many states accept passage of the 
National Council Licensure Examination for Registered Nurses (NCLEX-RN), a state licensing examination, it planned to 
pursue conforming amendments to the regulations at 20 C.F.R. 656.22(C)(2) and advised the Service that it may favorably 
consider an 1-140 petition for a foreign nurse for Schedule A labor certification if a certified copy of a letter from the state of 
intended employment is submitted showing that the alien has passed the NCLEX-RN examination. See Memorandum from 
Thomas Cook, Acting Associate Commissioner, Office of Adjudications, Adjudication of Form 1-140 Petitions for Schedule- 
A Nurses Temporarily Unable to Obtain Social Security Cards (December 20,2002). 
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necessary. Thus, this part of New Hampshire's regulations is also insufficient to show that the beneficiary 
passed the NCLEX-RN examination. 
The petitioner also states in the letter dated October 13, 2004 that "reciprocity allowed registered nurses to 
practice from one state to another." The fact that the beneficiary may be allowed to practice in New 
Hampshire as a result of reciprocity does not negate the fact that the beneficiary must meet the requirements 
set out in the regulations. 
Moreover, the petitioner states in the letter dated October 13, 2004 that "we could not submit a copy of the 
letter from the NCSBN that [the beneficiary] passed the NCLEX examinations because that letter is in Korea 
and [the beneficiary] is currently working in Saudi Arabia. Also added to the obstacle of submitting this letter 
is the difficulty of going around (doing mailing, errands, etc) in Saudi Arabia due to the crisis there." The 
petitioner's assertion regarding the beneficiary's situation, without supporting documentary evidence, is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofSici, 22 I&N Dec. 
158, 165 (Cornrn. 1998) (citing Matter of Treasure Crap of California, 14 I&N Dec. 190 (Reg. Cornm. 
1972)). In addition, the Form ETA 750B, dated February 16, 2004, includes the beneficiary's signature. The 
record also includes other documentation regarding the beneficiary's education and work experiences, 
including documentation from Saudi Arabia. If the beneficiary, who is currently residing in Saudi Arabia, 
was able to submit information to the petitioner in 2004, the AAO questions why the beneficiary is unable to 
contact someone with access to her letter from the NCSBN and provide a copy of the letter to the petitioner. 
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to 
the director for consideration of whether the petitioner has established that the beneficiary possessed the 
necessary licensing credentials required by the regulations. The director may request any additional evidence 
considered pertinent. Similarly, the petitioner may provide additional evidence within a reasonable period of 
time to be determined by the director. Upon receipt of all the evidence, the director will review the entire 
record and enter a new decision. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. 
The petitioner has not met that burden. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for further 
action in accordance with the foregoing and entry of a new decision, which, if adverse to the 
petitioner, is to be certified to the AAO for review.