MATTER OF T-E-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 26,2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a home health care provider, seeks to permanently employ the Beneficiary as a registered nurse. It requests classification of the Beneficiary as a professional under the third preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status.

The Director, Texas Service Center, denied the petition. The Director found that the Petitioner did not establish its continuing ability to pay the proffered wage of the job offered from the priority date of the petition onward. The Petitioner filed an appeal, which we dismissed on the same ground, also finding that the Petitioner did not establish its ability to pay the proffered wages of other 1-140 beneficiaries. In addition, we found that the Petitioner did not comply with a "notice of filing" requirement inscribed in the regulation at 20 C.P.R.§ 656.10(d)(3)(iv).

The matter is now before us on a motion to reopen. The Petitioner has submitted additional documentation and asserts that these materials establish its continuing ability to pay the proffered wage from the priority date up to the present. The motion to reopen will be denied.

I. LAW AND ANALYSIS

A. Case History

The instant petition, Form 1-140, was filed on June 30, 2014. The petition is for a Schedule A occupation. A Schedule A occupation is one codified at 20 C.P.R. § 656.5(a) for which the U.S. Department of Labor (DOL) has determined that there are not sufficient U.S. workers who are able, willing, qualified and available and that the wages and working conditions of similarly employed U.S. workers will not be adversely affected by the employment of foreign nationals in such occupations. The current list of Schedule A occupations includes professional nurses. !d.

Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain a certified ETA Form 9089 (Application for Permanent Employment Certification) from the DOL prior to filing the petition with U.S. Citizenship and Immigration Services (USCIS). Instead, the petition is filed directly with USCIS with an uncertified ETA Form 9089 in duplicate. See 8 C.P.R.

Matter ojT-E-, Inc.

§§ 204.5(a)(2) and (1)(3)(i); see also 20 C.F.R. § 656.15. In accord with these regulatory provisions the instant petition was filed with a completed but uncertified ETA Form 9089.

If the Schedule A occupation is a professional nurse, the petitioner must establish that the beneficiary has a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); or has a permanent, full and unrestricted license to practice professional nursing in the state of intended employment; or has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN). See 20 C.F.R. § 656.5(a)(2).

Petitions for Schedule A occupations must also contain evidence establishing that the employer provided its U.S. workers with notice of the filing of an ETA Form 9089 (posting notice) as prescribed by 20 C.P.R. § 656.10(d), and that a valid prevailing wage determination (PWD) was obtained in accordance with 20 C.F.R. § 656.40 and 20 C.F.R. § 656.41. See 20 C.F.R. § 656.15(b )(2).

For the posting notice requirement, the employer must provide notice of the filing of an ETA Form 9089 to any bargaining representative for the occupation, or, if there is no bargaining representative, by posted notice to its employees at the location of the intended employment. See 20 C.F .R. § 656.1 0( d)(l ).

The regulation at 20 C.F.R. § 656.10(d)(3) states that the posting notice shall:

(i) State that the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity;

(ii) State that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor;

(iii) Provide the address of the appropriate Certifying Officer; and (iv) Be provided between 30 and 180 days before filing the application.

Posting notices for Schedule A occupations must also contain a description of the job offered and the rate ofpay. See 20 C.F.R. § 656.10(d)(6).

The Petitioner must demonstrate its continuing ability to pay the proffered wage beginning on the priority date ofthe petition. See 8 C.F.R. § 204.5(g)(2). The priority date of the petition is "the date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with [USCIS]." 8 C.F.R. § 204.5(d). The priority date in this case is June 30, 2014.

In this case, section G of the ETA Form 9089 specifies that the proffered wage for the job of registered nurse is $82,222 per year. As evidence of its ability to pay the proffered wage the Petitioner submitted copies of a profit and loss statement for 2013, its corporate income tax return (Form 1120S) for 2013 and the FOfi11S W-2, Wage and Tax Statements, it issued to the Beneficiary for 2013 and 2014.

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Matter ofT-E-, Inc.

The Petitioner must also establish that the Beneficiary had all of the education, training, and experience __ required on the ETA Form 9089 as of the priority date. See 8 C.F.R. § 204.5(d); Matter of Wing's Tea

House, 16 I&N Dec. 158 (Act. Reg'l Comm'r 1977).

In this case, section H of the ETA Form 9089 specifies that the minimum requirements to qualify for the job of registered nurse are a bachelor's degree in nursing or a foreign educational equivalent, 12 months of experience in the job offered, and licensure as a registered nurse in the state of Texas. As evidence of the Beneficiary's qualifications the Petitioner submitted documentation showing that the Beneficiary earned a 4-year bachelor of science in nursing from in Philippines, and was licensed by the as a registered nurse at the time the petition was filed. No evidence of the Beneficiary's work experience was submitted.

The Director denied the petition on the ground that the Petitioner did not establish its ability to pay the proffered wage. The Director noted that the Beneficiary's Forms W-2 for 2013 and 2014 indicated that her gross pay from the Petitioner in those 2 years was ·$50,183 .09 and $39,999.73, respectively. Those sums were $32,038.91 and $42,222.27 below the proffered wage. The Director also noted that the Petitioner had no net income or net current assets in 2013, since its federal income tax return for 2013 recorded a net loss of$66,548 and net current liabilities of$29,581.

The Petitioner filed an appeal, supplemented with a brief and additional documentation which included a copy of its federal income tax return, Form 1120S, for 2014. On appeal, the Petitioner asserted that it paid the Beneficiary more than the prevailing wage it was required to pay in 2013 and 2014, when the Beneficiary was employed in nonimmigrant (H-1B) status. The Petitioner also asserted that the Director did not take its gross income and gross assets into account, nor the amounts it paid in wages to other nurse employees, in determining the Petitioner' s ability to pay the proffered wage to the instant Beneficiary. Moreover, according to the Petitioner the Beneficiary would replace some part-time nurses, and the funds currently used to pay them would be available to pay the Beneficiary.

We dismissed the appeal, finding that the evidence of record still did not establish the Petitioner's ability to pay the proffered wage from the priority date of June 30, 2014, onward. The 2014 tax return recorded net income of $35,631, which was less than the $42,222.27 needed to cover the shortfall between the proffered wage ($82,222) and the amount actually paid to the Beneficiary in 2014 ($39,999.73). Nor were there any net current assets to cover that difference since the tax return recorded net current liabilities of $42,032. While the Petitioner justly claimed that it was only required to pay the Beneficiary an annual salary of$35,422 in 2014 under her approved petition for H-1B nonimmigrant status, we pointed out that compliance with the prevailing wage in a nonimmigrant petition did not alter the Petitioner' s obligation to establish its ability to pay the higher proffered wage of the job offered in the current immigrant petition from the priority date of that petition onward. No documentation was submitted to identify the part-time nurses the Petitioner claimed would be replaced by the Beneficiary, show the amount of wages they received, and confirm that they would be replaced. Nor did the Petitioner submit any documentation to corroborate its claim that another beneficiary of an I -140 petition no longer intended to work for the

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Matter ofT-E-. Inc.

Petitioner and that his (or her) proffered wage, unstated by (the Petitioner, would be available to pay the instant Beneficiary.

Furthermore, we pointed out that USCIS records indicated that the Petitioner filed at least four other immigrant visa petitions that remained pending beyond the priority date of the instant petition, and identified them by their respective receipt numbers. We stated that the Petitioner must establish its ability to pay the combined proffered wages of the instant Beneficiary and all the other beneficiaries of I-140 petitions from the priority date of the instant petition until the other beneficiaries obtain lawful permanent residence, or until the other petitions were denied, withdrawn, or revoked, citing Patel v. Johnson, 2 F.Supp. 3d 118, 124 (D. Mass. 2014) (upholding our denial of a petition in which the petitioner did not establish its ability to pay the proffered wages of multiple beneficiaries). The Petitioner had not identified any of these other I -140 beneficiaries or furnished any of the information (and supporting documentation) described above. Finally, we considered the magnitude of the Petitioner's business and the totality of its circumstances, in accordance with Matter of Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967), and concluded that the record did not establish the Petitioner's continuing ability to pay the proffered wage of the instant Beneficiary (and other beneficiaries of I -140 petitions) from the priority date of the instant petition onward. For all of these reasons we affirmed the Director's decision to deny the petition.

In addition to the ability to pay issue, we found that the Petitioner did not comply with the requirement in 20 C.F.R. § 656.10(d)(3)(iv) to post notice of the application for Schedule A designation "between 30 and 180 days before filing the application." In this case, we pointed out that the notice of filing was posted at the Petitioner's address from May 19, 2014 to June 6, 2014. Since the ETA Form 9089 application for Schedule A designation was filed on June 30, 2014 -which was 24 days after the end of the notice posting period - we concluded that the notice of posting did not occur during the requisite period of 30 to 180 days before filing. Accordingly, we determined that the Petitioner was not eligible for Schedule A designation. For this reason as well we dismissed the appeal.

B. Motion to Reopen

The requirements for a motion to reopen are set forth in the regulation at 8 C.F.R. § 1 03.5(a)(2):

A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence.

In support of its motion the Petitioner submits a letter from counsel and documents addressing one aspect of its ability to pay the proffered wage - specifically, the part-time nurses it claims will be replaced by the Beneficiary. Four individuals are identified by name. Copies of their registered nurse licenses from the have been submitted, as well as the Forms W-2 the Petitioner issued for 2014. The four nurses were paid a total of $138,316.52. According to the Petitioner, the nurses now (as of January 2016, when the motion was filed) work for other employers

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Matter ofT-E-, Inc.

and the wages that were paid to them are now available, as.needed, to pay the instant Beneficiary. No further evidence has been submitted.

The newly-submitted materials are not sufficient to overcome the grounds for denial of the petition as discussed in the previous decisions of the Director and this office. With regard to the four part­time nurses, the Forms W-2 confirm that they were all employed by the Petitioner in 2014, but the Petitioner has not indicated when their employment ceased or submitted any documentary evidence thereof. Thus, it is not possible to determine when the wages paid to these four nurses may have been freed up to pay the instant Beneficiary, and if this occurred before the June 30, 2014 priority date.

Moreover, the Petitioner has not addressed any of the other ability to pay issues discussed in our dismissal of the appeal. Th,e Petitioner has not identified or provided any documentation concerning its I-140 beneficiary who allegedly no longer wants to be employed. Nor has the Petitioner provided any information or documentation concerning the other I-140 beneficiaries identified by receipt number in a footnote of our prior decision. USCIS records show that four of these petitions were approved: (on November 20, 2009); (on October 4, 2012);

(on January 17, 2013); and (on August 18, 2015). There is no evidence in the record as to the proffered wages of these beneficiaries, how much they have actually been paid, whether they are still employed by the Petitioner, the dates of their departure (if applicable), and their current immigration status. Thus, it is not possible to determine whether the Petitioner has met its proffered wage obligations to all of these beneficiaries during the required time periods.

For the reasons discussed above, the Petitioner has not overcome the previous findings by the Director and this office that it has not established its ability to pay the proffered wage of the instant Beneficiary, as well as the proffered wages of the other beneficiaries of its I -140 petitions, from the priority date of the instant petition onward. On this ground alone the petition cannot be approved.

The Petitioner has also not addressed our finding that it did not comply with the "notice of posting" requirement for Schedule A designation in 20 C.F.R. § 656.10(d)(3)(iv). For this reason as well the petition cannot be approved.

In addition, we note that there is no evidence in the record, such as a letter from a prior employer, that the Beneficiary has 1 year of experience as a registered nurse, as required by the ETA Form 9089 to qualify for the job offered. For this additional reason the petition cannot be approved.

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Matter ofT-E-. Inc.

II. CONCLUSION

The petition cannot be approved on the following grounds:

1. The Petitioner has not established its continuing ability to pay the proffered wage of the instant Beneficiary, as well as the proffered wages of its other I-140 beneficiaries, from the priority date of the instant petition up to the present.

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2. The Petitioner did not comply with the "notice of filing" requirement in connection with its application for Schedule A designation.

3. The Petitioner has not established that the Beneficiary met the experience requirement on the ETA Form 9089, as of the priority date, to qualify for the job of registered nurse.

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. See section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The Petitioner has not met that burden.

ORDER: The motion to reopen is denied.

Cite as Matter ofT-E-. Inc., ID# 10821 (AAO Oct. 26, 2016)