Non-Precedent Decision of the Administrative Appeals Office DATE: APR. 24, 2019
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a clinical research facility, seeks to employ the Beneficiary as a clinical research coordinator. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based "EB-2" immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director of the Texas Service Center denied the petition on the ground that the Petitioner did not establish its ability to pay the proffered wage. On appeal the Petitioner asserts that the denial was erroneous because the Director did not properly analyze the totality of the Petitioner's circumstances, did not take its affiliated entity's financial record into account, and applied the wrong standard of proof Upon de nova review, we will withdraw the Director's decision and remand the case for further consideration and the issuance of a new decision.
Law
Employment-based immigration generally follows a three-step process. First, an employer obtains an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that employing a foreign national in the position will not adversely affect the wages and working conditions of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the foreign national may 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.
To be eligible for the classification it requests for the beneficiary, a petitioner must establish that it has the ability to pay the proffered wage stated in the labor certification. As provided in the regulation at 8 C.F.R. § 204.5(g)(2):
Matter ofA-A-, MD., P.A.
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 [USCIS].
Analysis
As indicated in the above regulation, the Petitioner must establish its continuing ability to pay the proffered wage from the priority date1 of the petition onward. The priority date in this case is February 8, 2018. The labor certification states that the wage offered for the job of clinical research coordinator is $141,544 per year. The Director found that the record did not demonstrate the Petitioner's ability to pay the proffered wage in 2017. However, as the priority date occurred in 2018, that is the first year for which the Petitioner must demonstrate its ability to pay. When the record was before the Director, evidence of the Petitioner's ability to pay in 2018 was not available. Therefore we will remand the matter to the Director to request regulatory required evidence, as specified in 8 C.F.R. § 204.5(g)(2), of the Petitioner's ability to pay the proffered wage in 2018.
The Petitioner may also submit materials in support of the factors discussed in Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l Comm'r 1967). As the Petitioner argues and Sonegawa requires, the Director on remand must consider the totality of the circumstances affecting the Petitioner's ability to pay, including the prior evidence submitted regarding its historical profitability and claims regarding uncharacteristic expenses.
Conclusion
For the reasons discussed above, we will remand this case to the Director for further consideration of the Petitioner's ability to pay the proffered wage from the priority date onward.
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.
Cite as Matter ofA-A-, MD., P.A., ID# 3730385 (AAO Apr. 24, 2019) 1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. § 204.5(d).