The Petitioner, a provider of healthcare professionals, seeks to employ the Beneficiary as a nurse supervisor.. The Petitioner requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second prefere1:1ce immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). This employment-based immigrant classification allows a U.S..employer to sponsor a professional with an advariced degree for lawful permanent resident status. .
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not established that the occupation requires an· advanced degree, and that it had not established its ability to pay the proffered wage to the Beneficiary and its other sponsored workers.
On appeal, the Petitioner states .that the position of nurse supervisor carries greater responsibilities than a registered nurse and, therefore, requires an advanced degree. The Petitioner also asserts that the record demonstrates its ability to pay the proffered wages of all of its pending petitions based on the totality of the circumstances. It asserts that it has a rea~onable expectation of an .increase in business; that multiple pending petitions do not weaken its business; and that its bank statements and line of credit establish its ability to pay the proffered wage.
Upon de novo review, we will dismiss the appeal.
Law and Analysis
A. Employment-Based Petitions for Schedu_le A Occupations
A Schedule A occupation is an occupation codified at 20 C.F.R. § 656.S(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 and physical therapists. Id.
Matter r~fR-E-S-R- LLC
Petitions for Schedule A occupations do not require a petitioner to test the labor market and obtain a certified labor certification from the DOL prior to filing the petition with U.S. Citizenship and Immigration Services (USCIS). Instead, the petition is filed directly with USClS with a duplicate uncertified labor certification. See 8 C.F.R. § 204.5(a)(2); see also 20 C.F.R. § 656.15. If USCIS approves the petition, the foreign national applies 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.
B. Ability to Pay the Proffered Wage
The Director denied the petition, concluding that the Petitioner did not es,tablish its continuing ability to pay the proffered wage from the petition's priority date onward. The proffered wage is $96,950 per year. The priority date of the petition is October 12, 2016. See 8 C.F.R. § 204.5(d).
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability of prospective employer to pay wage. Any pet1t1on 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 determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the full proffered wage each year from a petition's priority date. If a petitioner did not pay a beneficiary the full proffered wage, we next examine whether it had sufficient annual amounts of net income or net current assets to pay the difference between the proffered wage and the wages paid, if any.. If a petitioner's net income or net current assets are insufficient, we may also consider other evidence of The record does not demonsfrate that the Petitioner has paid the Beneficiary any wages from the priority date onward. The record indicates that the Petitioner is a limited liability company taxed as a partnership. The Petitioner's audited statement of operations for the IO-month period ending October 31, 2016, states net income of $256,026. The Petitioner's audited balance sheet for the same period states net current assets of $699,294. However, where a petitioner has filed Fonn 1-140 petitions for multiple its ability to pay the proffered wage.
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 111, 118 (Ist Cir. 2009); Tongatapu Woodcraft Haw., ltd. v. Feldman, 736 F.2d 1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, -- F. Supp. 3d --, 2015 WL 3634497, *5 (S.D. Cal. 2015); Rizvi v. Dep ' t o f Homeland Sec., 37 F. Supp. 3d 870, 88.'.3-84 (S.D. Tex. 2014), a.ff'd, 627 Fed. App'x 292, 294-295 (5th-Cir. 2015). p. 3 beneficiaries, it ni.ust 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). USCIS records show that the Petitioner has filed dozens of Form I-140 petitions for other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the beneficiaries of the other Form 1-140 petitions that were The Petitioner must document the receipt numbers, names of beneficiaries, pnonty dates, and proffered wages of these other petitions, and indicate the status of each petition and the date of any status change (i.e., pending, approved, withdrawn, revoked, denied, on appeal or motion, beneficiary obtained lawful permanent residence).; To offset the total wage burden, the Petitioner may submit documentation showing that it paid wages to other beneficiaries. To demonstrate that it has the ability to pay the Beneficiary and the other beneficiaries, the Petitioner must, for each year at issue (a) calculate any shortfall between the proffered wages and any actual wages paid to the primary Beneficiary and its other beneficiaries, (b) add these amounts together to calculate the total wage deficiency, and (c) demonstrate that its net income or net current assets exceed the total wage pending or filed after the priority date of the current petition. deficiency.Not eligible at the time of filing
In response to the Director's notice of intent to deny (NOID), the Petitioner did not provide requested information about the other petitions that it has filed. On appeal, the Petitioner does not submit the requested information, but instead states that multiple pending petitions do not weaken its business. However, failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Moreover, without information regarding the Petitioner's additional beneficiaries, we cannot determirie the Petitioner's ability to pay the combined proffered wages ofall ofthe applicable beneficiaries.
On appeal, the Petitioner argues that it has a reasonable expectation of an increase in business and asserts that the Beneficiary's proposed employment will increase the Petitioner's income. However, the Petitioner must demonstrate its ability to pay from the priority date onward. As the Beneficiary has not yet been employed by the Petitioner, any income from the Beneficiary's possible future employment cannot be considered for the years prior to that employment. Further, against the projection of future earnings, Matter of'Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg'! Comm'r 1977), states:
The Petitioner's ability to pay th~ proffered wage o f one o f the other 1-140 beneficiaries is not considered: After the other beneficiary obtains lawful permanent residence; ,· If an 1-140 peJition filed on behalf of _the other beneficiary has been withdrawn, revoked, or denied without a pending appeal or motion; or · Before the priority date o f the 1-140 petition filed on behalf o f the other beneficiary. It is.the Petitioner's burden 'to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter c?fSkirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012).
Matter ofR-E-S-R- LLC ·
I do not feel, nor do I believe the Congress intended, that the petitioner, who admittedly could not pay the offered wage at the time the petition was filed, should subsequently become eligible to have the petition approved under a new set of facts hinged upon probability and projections; even beyond the information presented on appeal.
Moreover, in -t!iis case, the Petitioner has provided no evidence to show how the Beneficiary's employment as a nurse supervisor will significantly increase income for the Petitioner's business.
The Petitioner asserts that it will make a profit of $4,450 annually from employment of the Beneficiary, which is the difference between the amount of annual reimbursement the Petitioner stands to receive from · where the Beneficiary will be working, and the proffered wage. However, the Petitioner has not calculated the additional costs (in addition to salary) in employing the Beneficiary, which may include legally required benefits (social security, Medicare, federal and· state unemployment insurance, and worker's compensation), employer costs for providing insurance benefits (life, health, and disability), paid leave benefits On appeal, the Petitioner also asserts that we should consider its line of credit with Flushing Bank in our determination of its ability to pay the proffered wage. In calculating the ability to pay the proffered wage, we will generally not augment the Petitioner's net income or net currentassets by adding in its lines ofcredit. A line ofcredit_is a bank's unenforceable commitment to make loans to a particular borrower up to a specified maximum during a specified time period. A line of credit is not a contractual or legal obligation on the part of t~e bank. See John Downes and Jordan Elliot Goodman, Barron 's Dictionary o f Finance and Investment Terms 45 (5th ed. 1998}. Moreover, without information regarding the Petitioner's additional beneficiaries, we cannot determine whether the unused funds from the line of credit are-sufficient to cover the Petitioner's wage obligations.
Further, the Petitioner asserts that the decision in Full Gospel Portland Church v. Thornburgh, 730 F. Supp. 441 (D.D.C. 1988), is binding here. We disagree. Although we may consider the reasoning of the decision, we are not bound to follow the published decision of a United States district court in cases arising within the same district. See lYfatter ofK-S-. 20 I&N Dec. 715 (BIA 1993). In addition, the decision in Full Gospel is distinguishable from this case. The court in Full Gospel ruled that USCI~ should consider the pledges of parishioners in determining a church's ability to pay the wages of cl- music teacher. Here, a line of credit is a debt and creates a liability on the Petitioner's balance sheet, whereas a parishioner's pledge is a promise to give money. The pledge does not create a liability. The Petitioner's line of credit does not e~tablish its ability to pay the proffered wage. benefits, if any, the Beneficiary will receive. I.
(vacations, holidays, sick, and personal leave), retirement and savings, and supplemental pay. Therefore, the Petitioner has not established that that the Beneficiary's proposed employment will increase the Petitioner' s income.
The record does not include an employment agreeme~t between the Petitioner and the Beneficiary showing what p. 5 The Petitioner also asserts that its bank statements establish its ability to pay the proffered wage. However, bank statements are not among the three types of evidence, listed in 8 C.F.R. § 204.5(g)(2), required to illustrate a petitioner's ability to pay a proffered wage. While this regulation allows additional material "in appropriate cases," the, Petitioner has not demonstrated why the documentation specified at 8 C.F.R. § 204.5(g)(2) is inapplicable or otherwise depicts an inaccurate financial picture of the Petitioner. The Petitioner also has not established that the funds reported on its bank statements show additional available·funds that were not reflected on its financial statements, such as the Petitioner's taxable income (income minus deductions) or the cash specified on its audited balance sheet.' Moreover, without infom1ation regarding the Petitioner's additional beneficiaries, we cannot determine whether the funds in the Petitioner's bank account are sufficient to cover the Petitioner's wage obligations.
We may consider evidence of a petitioner's ability to pay beyond its net income and net current assets, including such factors as: the number of years it has conducted business; the growth of its business; its number of employees; the occurrence of any uncharacteristic business expenditures or losses; its reputation in its industry; whether a beneficiary will replace a current employee or outsourced service; or other evidence of its. qbility to pay a proffered wage. See Matter of Sonegawa, 12 I&N Dec. 612, 614-615 (Reg'l Comm'r 1967).
In this case, the record indicates that the Petitioner was organized in 2009. While its gross income increased between 2013 and 2015, the record does not show its historical growth since its organization. The Petitioner has not indicated that it experienced any uncharacteristic business expenditures or losses. Further, the record does not establish the Petitioner's reputation in its industry, and it does not appear that the Beneficiary will be replacing a current employee or outsourced service.
Also, as discussed above, without information regarding all of its 1-140 beneficiaries, we cannot determine the Petitioner's ability to pay the combined proffered wages of all of the applicable beneficiaries. Thus, assessing the totality of circumstances in this case, the record does not establish the Petitioner's continuing ability to pay the proffered wage.
The Petitioner has not established its continuing ability to pay the proffered wage from the petition's C. Eligibility for the Classification Sought priority,date onward.
Although not discussed by the Director, the Petitioner's federal employer identification number (EIN) listed on the Form 1-140 and labor certification is different thatthe EiN listed on the PWD. The Petitioner stated on the Form 1-140 and labor certification that .its EIN _is The EIN listed on the PWD is In any future proceedings, the Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to wh~re the truth lies.Inconsistencies in the record Ma/fer qfHo, 19 l&N Dec. -582, 591-92 (BIA 1988).
Matter c!fR-E-S-R- LLC
The Director also denied the petition finding that the position of nurse supervisor fits within the occupation title of registered nurse, and that the job does not require an adva°'ced degree professional. However, because the_Petitioner's lack of ability to pay is dispositive in this case, we need not reach the issue of the requested classification and therefore reserve it.
Conclusion
The Petitioner has not established its continuing ability to pay the Beneficiary because it has not ,,demonstrated ,its ability to pay the proffered wages of all of its Form I-140 beneficiaries from the petition's priority date onward.
ORDER: The appeal is dismissed.
Cite as Matter ofR-E-S-R- LLC, ID# 447298 (AAO Jan. 29, 2019)