The Petitioner, a healthcare staffing company, seeks to employ the Beneficiary as a nurse supervisor. It requests his classification as a member of the professions holding an advanced degree under the second-preference, immigrant category. See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). This employment-based, "EB-2" category allows U.S. businesses to sponsor foreign nationals for lawful permanent resident status if they have master's degrees, or bachelor's degrees followed by five years of experience.
The Director of the Texas Service Center denied the petition and the Petitioner's following motions to reopen and reconsider. The Director concluded that the record did not establish the Beneficiary's qualifications for the offered position, or the Petitioner's required ability to pay the proffered wage. The Director also denied the accompanying application for Schedule A designation, finding that the On appeal, we affirmed the Director's decision. We also found that the offered position did not qualify for Schedule A designation and that DOL's debarment of the Petitioner for infractions in other matters precluded the petition's approval.
The matter is now before us on the Petitioner's motion to reconsider. The Petitioner asserts that: it need not post notice of the offered wage; our ability-to-pay analysis overlooked its profitable business model; and the Beneficiary meets the position's experience requirements. The Petitioner also contends that the position qualifies for Schedule A designation and that the company's debarment did not affect the petition's approvability.
Upon review, we will grant the motion, in part, and deny the motion, in part.
Schedule A is the U.S. Department of Labor's (DOL's) list of shortage occupations in which the employment of foreign nationals will not hurt the wages and working conditions of U.S. workers. 20 C.F.R. § 656.5. Because employers need not advertise these positions to U.S. workers, the DOL has authorized U.S. Citizenship and Immigration Services (USCIS) to adjudicate Schedule A applications with immigrant visa petitions. See 20 C.F.R. § 656.15.
Petitioner did not properly post notice o f the offered wage.
Law
A motion to reconsider must establish that our decision was based on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider must be suppotied by a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USCIS or Department of Homeland Security policy. We may grant a motion that satisfies these requirements and demonstrates eligibility for the requested immigration benefit.
Analysis
Upon reconsideration, we find the offered position eligible for Schedule A designation and conclude that, as the Petitioner's debarment period has expired, the debarment would no longer preclude the petition's approval if the Petitioner had otherwise established eligibility. However, for the reasons discussed below, we will also deny the motion, in part, as the Petitioner has not demonstrated eligibility for the requested benefit.
A. TheNoticeofFiling
As required, the Petitioner's application for Schedule A designation contains a copy of the company's notice ofthe application's filing, which includes a description of the otlered position and the rate of pay. See 20 C.F.R. §§ 656.10(d)(6), 656.15(b)(2) (listing criteria for Schedule A filing notices). Our appellate decision concluded that the notice improperly listed a rate ofpay of$77,710, which is less than the offered rate ofpay stated on the Schedule A application of$77,750.
On motion, the Petitioner asserts that the wages on the notice need not equal or exceed the offered wage, but rather only the prevailing wage, which was determined by a state workforce agency (SWA) to be $77,709. The Petitioner notes that a Schedule A filing notice "must meet the requirements of this s.ection." 20 C.F.R. § 656.10(d)(6). The Petitioner argues that this reference indicates that the notice must also meet requirements listed at 20 C.F.R. §656.10(d)(4), which governs applications filed under the· basic labor certification process, rather than the Schedule A process. The referenced section includes a .requirement that a notice "state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form)." Because the wage rate on its notice exceeds the SWA's prevailing wage rate, the Petitioner contends that its notice meets DOL requirements. Contrary to the Petitioner's assertions, the referenced regulation does not allow the employer to list a rate of pay on the notice that is Jess than the rate of pay stated on the Schedule A application. It simply states that the rate of pay, or offered wage, must equal or exceed the prevailing wage and must be listed on the notice.
Moreover, the Petitioner overlooks another requirement of the referenced section. A filing notice also "must contain the information required for advertisements by [20 C.F.R.] § 656.17(f)." 20 C.F.R. § 656.10(d)(4). In turn, 20 C.F.R. § 656.17(£)(7) bars ads from containing "wages or terms and conditions of employment that are less favorable than those offered to the alien."· Thus, p. 3 the Petitioner's filing notice must not contain wages less favorable than those offered to the Beneficiary. Because the Petitioner's filing notice contains wages below the annual offered wage of $77,750, the notice's wages are less favorable than those offered to the Beneficiary. The notice therefore violates DOL regulations. See, e.g., Matter ofOm Shri Ganesh. LLC, 2016-PER-00024, 2016 WL 4088802, *3 (BALCA July 28, 2016) (holding that a filing notice may not contain a wage that equals the prevailing wage but falls below the offered wage).
On motion, the Petitioner states that it modeled its filing notice on a USCIS sample and that we should therefore find the notice sufficient. See Memorandum from Michael Aytes (the Aytes memo), Acting Assoc. Dir., Domestic Ops., USCIS, HQPRD 70.23.1, AFM Update: Chapter 22: 2 Employment-Based Petitions 19 (Sept. 12, 2006) , Like the USCIS sample, the Petitioner's notice states: "The employer will pay or exceed the prevailing wage, as determined by the U.S. Department o f Labor." I d. However, the Aytes memo also requires the Petitioner to state the rate o f pay, which is the offered wage, on the notice. The memo does not indicate, nor has the Petitioner established, that including the statement from the sample in any way negates this requirement.
DOL regulations indicate that a filing notice must contain the rate of pay for the proffered position, which must equal or exceed the proffered wage. lf the rate of pay exceeds the proffered wage, as in this case, the notice must contain the higher rate of pay. Contrary to DOL regulations, the Petitioner's filing notice does not contain the rate of pay for the proffered position. We will therefore affirm our appellate finding and deny the motion.
B. The Petitioner's Ability to Pay the Proffered Wage
In finding the record insufficient to demonstrate its ability to pay, the Petitioner asserts that we overlooked its profitable business model. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its continuing ability to pay a proffered wage from a petition's priority date until a beneficiary obtains lawful permanent residence). The Petitioner states that it charges clients more for the services of its employees than it pays the workers. It therefore claims that its net income increases with each employee hired.
The record, however, indicates that the Petitioner does not immediately employ many of its beneficiaries, and thus does not immediately derive net income from them. The Petitioner identified 3 22 beneficiaries of petitions that it filed in 2013. however, the Petitioner stated that it did yet employ nine of the beneficiaries. only the 13 beneficiaries it employed, the record does not establish the Petitioner's possession of sufficient amounts of net income or net current assets in 2013 to pay their total proffered wages. http://www. uscis.gov/sites/default/files/USC IS/Laws/Memoranda!Static_Files-Memoranda/Arch ives%20 1998-2008/ 2006/afm_ch22_091206r.pdf (last visited July I0, 20 17). 3 Our appellate decision misstated the number of identified beneficiaries as 18.
The priority dates of petitions with accompanying Schedule A applications are the filing dates of the petitions. 8 C.F.R. § 204.5(d).
More than a year after the petitions' priority dates, 4 Even considering
In addition, as indicated in our appellate decision, the Petitioner has not demonstrated its ability to pay the combined proffered wages of all of its pending and approved petitions. As ofthis petition's priority date, USCIS records indicate the Petitioner's filing of at least 115 petitions, 76 in 2013 and 39 in 2012, that remained pending or approved. Because a petitioner must establish its ability to pay until beneficiaries obtain lawful permanent residence, the Petitioner here must establish its ability to pay the combined proffered wages of this petition and its other pending or approved petitions. The Petitioner must demonstrate its ability to pay the combined proffered wages until the beneficiaries of the other petitions obtained lawful permanent residence, or until their petitions were denied, withdrawn, or revoked. 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 grant, the petitioner did not demonstrate its ability to pay the combined proffered wages o f multiple, pending beneficiaries).
In response to a request from the Director, the Petitioner provided information about only 22 of its pending petitions, all filed in 2013. The record does not indicate the proffered wages of the other 93 pending petitions, or whether the Petitioner paid wages to their beneficiaries. The record also does not indicate whether the beneficiaries obtained lawful permanent residence, or whether their petitions,were denied, withdrawn, or revoked. Without this information, the record does not establish the Petitioner's ability to pay the proffered wage. See also 8 C.F.R. § 103.2(b)(14) (allowing USCIS to deny a petition if a petitioner does not submit requested evidence that precludes a material line of inquiry).
For the foregoing reasons, the record does not establish the Petitioner's continuing ability to pay the proffered wage from the petition's priority date onward. We will therefore also affirm our appellate finding on this ground.
C. The Beneficiary's Experience
The Petitioner seeks to qualify the Beneficiary for the offered position of nurse supervisor based on his possession of a bachelor's degree followed by at least five years of experience. See Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977) (requiring a petitioner to establish a beneficiary's possession of all DOL-certified job requirements by a petition's priority date). On appeal, we found that the record did not establish the Beneficiary's possession of 60 months of post-baccalaureate experience "in the job offered," as the Schedule A application specifies. The Beneficiary attested to experience as an operating room nurse and a registered nurse, positions which he stated involved mostly clinical duties caring for patients. But he did not claim any experience in the offered position of nurse supervisor, the job duties of which largely involve administrative tasks such as supervising, scheduling, and training nurses.
On motion, the Petitioner notes that, to qualify as an advanced degree professional, a beneficiary need only have five years of progressive, post-baccalaureate experience in the specialty. See 8 C.F.R. § 204.5(k)(2) (defining the term "advanced degree"). Because the Beneficiary has at least p. 5 five years of post-baccalaureate experience in nursing, the Petitioner asserts that the Beneficiary meets the positions' experience requirements.
A beneficiary, however, must qualify not only for a requested classification, but also for the offered position. See Matter Wing's Tea House, 16 I&N Dec. at 160. Here, we did not find the Beneficiary unqualified for the requested classification of advanced degree professional. Rather, we found that the record did not establish his qualifying experience for the offered position. The Schedule A application states that the offered position requires 60 months of experience "in the job offered." The application also indicates that the Petitioner will not accept experience in an alternate occupation.
Counsel asserts that the Petitioner intended to require 60 months of post-baccalaureate experience as a nurse, rather than in the offered position of nurse supervisor. He states that the Schedule A application form did not allow the Petitioner adequate space to list its intended experience requirement.
Assertions ofcounsel, however, do not constitute evidence. Matter ofObaigbena, 19 l&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's statement must be substantiated in the record with independent evidence, which may include affidavits and declarations. Also, counsel's claim of insufficient space on the application form is unpersuasive. The Petitioner could have indicated its acceptance of experience as a nurse by stating "nurse" as an alternate occupation in Part H.1 0 of the form.
Part of the Schedule A application supports the Petitioner's purported intention to require experience as a nurse. Part H.l4 of the application form states the Petitioner's acceptance of"five years of post- baccalaureate progressive work experience as [a] registered nurse." But this part conflicts with other sections of the form that require 60 months of experience "in the job offered" and state the unacceptability of an alternative occupation. Thus, the record does not establish the Petitioner's claimed intention to accept post-baccalaureate experience as a nurse.
For the foregoing reasons, the record does not establish the Beneficiary's possession of the minimum amount of experience in the offered position as specified on the Schedule A application. For this additional reason, we will affirm our prior finding and deny the motion.
D. The Petitioner's Intention to Employ the Beneficiary in the Offered Position Although unaddressed in our appellate decision, the record also does not establish the Petitioner's intention to employ the Beneficiary in the offered position.
A business may sponsor a foreign national for lawful permanent resident status if it is "desiring and intending to employ [him or her] within the United States." Section 204(a)(1)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). A petitioner must intend to employ a beneficiary under the terms and conditions of an accompanying labor certification. See Matter of Izdebska, 12 I&N Dec. 54, 55 p. 6 (Reg'l Comm'r 1966) (affirming a denial where, contrary to the terms of the accompanying labor certification, the petitioner did not intend to employ the beneficiary as a domestic worker-on a full- time, live-in basis).
Here, the Schedule A application states the Petitioner's intention to employ the Beneficiary in the offered position of nurse supervisor. A copy of the Petitioner's employment agreement with the Beneficiary and a letter from its chief financial officer/controller, however, identify the Beneficiary's position as "registered nurse." A copy of the Petitioner's contract with the Beneficiary's assigned client also describes the Petitioner's employees as either therapists or "registered nurses."
The references in the contracts to "registered nurse" cast doubt on the Petitioner's intention to employ the Beneficiary in the offered position ofnurse supervisor. See Matter ofHo, 19 l&N Dec. 582, 591 (BIA 1988) (requiring a petitioner to resolve inconsistences of record by independent, objective evidence pointing to where the truth lies).
In any future filings in this matter, the Petitioner must therefore establish its intention to employ the Beneficiary in the offered position of nurse supervisor.
Conclusion
The offered pos1t10n qualifies for Schedule A designation as a professional nurse, and the Petitioner's debarment no longer precludes the petition's approval. But the record does not establish the Petitioner's compliance with filing notice regulations, its continuing ability to pay the profiered wage, or the Beneficiary's qualifying experience for the offered position.
ORDER: The motion to reconsider is granted in part and denied in part.
Cite as Matter ofA-T- Inc., 10# 81325 (AAO Aug. 24, 2017)