The Petitioner, a healthcare ser\rices company, seeks to permanently employ the Beneficiary as a physical therapist in a~cordance with ·Section 203(b)(2) of the Immigration and ~ationality Act (the Act), 8 U.S.C. § 1153(b)(2). It has applied for the Beneficiary under a labor certification pursuant to 20 C.F.R. § 656.5, Schedule A, Group I. See 20 C.F.R. § 656.15. Schedule A, Group I is a list of occupations for which the Department of Labor (DOL) has determined that there are not sufficient United States workers who are able, willing, qualified, and available, and that the employment of foreign nationals in such occupations will not adversely affect the wages and working conditions of similarly employed United States workers. See 20 C.F.R. § 656.5. The current list includes professional nurses and physical therapists. !d.
TheDirector ofthe Texas Service Center denied the petition, concluding that the Petitioner did not demonstrate its ability to pay the proffered wage.
On appeal, the Petitioner submits additional evidence relating to the payment of wages to its current employees. It asserts that the Director erred in his decision because he did not consider a letter from its chief financial officer (CFO) or the potential net income that its physical therapist employees can .generate.
Upon de novo review, we will dismiss the appeal.
Law
Employment-based immigration is generally a three-step process. First, an employer must obtain an approved labor certification from the DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the foreign national beneficiary must 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. A petition for a Schedule A, Group I occupation, however, does not require the petitioning employer to first obtain an approved labor certification from the DOL. Instead, it files both the labor certification application (DOL ETA Form 9089, Application for Permanent Employment Certification) and an immigrant visa petition (Form I-140, Immigrant Petition for Alien Worker) with USCIS. See 8 C.F.R. § 204.5(a)(2), (1)(3)(i); 20 C.F.R. § 656.15.
In support of its ETA Form 9089 and petition, the employer must present evidence that it has the ability to pay the beneficiary the proffered wage, and must demonstrate this ability from the priority date, which, in this case, is the date it filed the petition, until the beneficiary obtains lawful permanent residence. 8 C.P.R.§ 204.5(d), (g)(2); see also 103.2(b)(l). The regulation provides that evidence of ability to pay must be in the form of copies of annual reports, federal tax returns, or audited financial statements. 8 C.P.R. § 204.5(g)(2). In addition, the petitioner must establish that it has provided its U.S. workers with notice of the position it seeks to fill with a foreign national worker as well as its filing ofthe ETA Form 9089. 20 C.P.R.§ 656.10(d); 20 C.P.R.§ 656.15(b)(2). Specifically, it must notify its U.S. employees' bargaining representative for the occupation, or, if there is no bargaining representative, then by posting notice to its employees at the facility or physicallocationoftheintendedemployment. See20C.F.R.§656.10(d)(1).
Analysis
In the instant case, the petition's priority date is April 18, 2016. Therefore, the Petitioner must establish its eligibility for the petition from April 18, 2016, onward. The Director denied the petition, finding that the Petitioner did not demonstrate it had the ability to pay multiple beneficiaries, for whom it had sought labor certifications. For the reasons discussed below, we agree with the Director's determination. We additionally find that the Petitioner's notice to its U.S. workers does not meet the requirements for Schedule A, Group I labor certification. We will therefore dismiss the appeal.
A. The Petitioner's Ability to Pay the Proffered Wage
The Petitioner has not demonstrated its continuing ability to pay the proffered wage from the petition's priority date until the Beneficiary obtains lawful permanent residence. See 8 C.P.R. § 204.5(g)(2); 103.2(b)(l). The ETA Form 9089 indicates that the proffered wage is $75,650. As the Petitioner filed this petition in April 2016 and appealed in August 2016, we will consider its 2015 documents to determine its ability to pay the Beneficiary's proffered wage.
In determining a petitioner's ability to pay the proffered wage, we first examine whether it has paid the beneficiary the full proffered wage each year from the petition's priority date. See Matter of Sonegawa, 12 I&N Dec. 612,614-15 (Reg'l Comm'r 1967). petitioner's annual payment of the full proffered wage to the beneficiary, then we examine whether the petitioner has generated sufficient annual net income or net current assets to pay the proffered wage. If a petitioner's net income and net current assets are insufficient, we may also consider the ld.
See also USCIS Policy Memorandum HQOPRD 90/16.45, Determination ofAbility to Pay under 8 CFR 204.5(g)(2) 2-3 (May 4, 2004), https://www.uscis.gov/sites/default/files/files/nativedocuments/abilitytopay_4may04.pdf. 2 Federal courts have upheld our method of determining a petitioner's ability to pay proffered wages. See, e.g., River St. Donuts, LLC v. Napolitano, 558 F.3d Ill, 118 (1st Cir. 2009); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942- 43 (S.D. Cal. 2015); Rizvi v. Dep't o f Homeland Sec., 37 F. Supp. 3d 870, 884-85 (S.D. Tex. 2014), aff'd, 627 F. App'x overall magnitude of its business activities. lfthe record lacks evidence ofthe
In this case, the Petitioner has not submitted evidence showing its payments to the Beneficiary. The record therefo~e does not establish its ability to pay the proffered wage on this basis. The Petitioner has submitted copies of its consolidated audited financial statements for 2015. The documents .3 reflect a year-end net income of $403,039, and year-end net current assets of $748,443. Both of these amounts exceed the Beneficiary's annual proffered wage of $75,650. However, the notes to the financial statements indicate that the figures "include the accounts of a non-profit 501(c)(4) organization formed in 2013, whose financial support is largely provided by [the Petitioner]." The Petitioner, a domestic limited liability company, is a separate and distinct legal entity from the non- profit organization. The record does not include additionCj.l information on this organization's accounts or explain how the accounts might have impacted the Petitioner's net income or net current assets. In Sitar v. Ashcroft, No. Civ.A.02-30197-MAP, 2003 WL 22203713, at *2 (D. Mass. Sept. 18, 2003), a U.S. district court noted, "nothing in the governing regulation, 8 C.F.R. § 204.5, permits [USCIS] to consider the financial resources of individuals or entities who have no legal obligation to pay the wage." Without additional documentation, the Petitioner's consolidated audited financial statements are insufficient to demonstrate its ability to pay the proffered wage.
The Petitioner also submits a copy of its 2015 IRS Form 1065, U.S. Return of Partnership Income, reflecting that its "[o]rdinary business income (loss)'' was -$1,393,136, and its net current assets Further, a petitioner must demonstrate its ability to pay the proffered wage of each petition it has filed from the petition's priority date. 8 C.F.R. § 204.5(g)(2). As stated in the Director's decision, USCIS records indicate that the Petitioner has filed "more than 500 immigrant petitions" in 2015 and 2016. On appeal, the Petitioner does not contest this information and admits that it has petitioned for 5 wer~ -$966,929.
Beneficiary's annual proffered wage, and thus do not establish the Petitioner's ability to pay the amount. multiple beneficiaries.
As such, the Petitioner must demonstrate its ability to pay the combined The net loss and negative net current assets therefore do not exceed the proffered wages of the Beneficiary and the beneficiaries of its other petitions that remain pending 6 See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming our denial of a petition where a petitioner did not demonstrate its ability to pay multiple beneficiaries).
On appeal, the Petitioner provides information about 81 beneficiaries who it states began working as its employees in 2016. It explains that their total annual proffered wages are $4,421,456. However, documentary evidence, such as payroll records, has not been presented to support the Petitioner's 292 (5th Cir. 20 15).
We calculated the net current assets by taking the difference between total current assets and total current liabilities, which is $2,921,009- $2,172,556 = $748,443. See USCIS Policy Memorandum HQOPRD 90116.45, supra, at 2. 4 /d. According to the 2015 tax return, the Petitioner's total current assets were $3,740,275, and its total current liabilities were $4,707,204.
USCIS records indicate that the Petitioner has sought labor certifications for over 2,000 beneficiaries since 2003, and has filed more than I,000 immigrant petitions from October 2014 through April 2017. 6 after this petition's priority date.
See also 8 C.F.R. §§ 204.5(g)(2), 103.2(b)(l), (12). p. 4 assertion that it began paying the 81 beneficiaries their proffered wages upon their arrivals at the company. Regardless,therecorddoesnotincludesufficientevidenceconfirmingthePetitioner'sability to pay the remaining hundreds of beneficiaries. Without additional corroboration, the record is insufficient to establish the Petitioner's ability to pay the Beneficiary and the other beneficiaries' proffered wages.
The Petitioner asserts that the Director erred in rejecting a letter from its CPO as proof of its ability to pay. It claims that as it employs more than 300 people, the regulation allows USCIS to accept a statement from its financial officer to verify its ability to pay the Beneficiary's proffered wage. The regulation provides, "[i]n 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." 8 C.P.R. § 204.5(g)(2). The language of the regulation iJidicates that while USCIS may accept a statement from the financial officer o f a petitioner that employs 100 or more workers as proof, it is not required to do so.
The Petitioner maintains that the Director did not explain his rejection of the CPO's letter. It cites Matter ofX, our 2004 non-precedent decision in which we held that the Director of California Service Center erred in disregarding a financial officer's letter without explanation. See id., 2004 WL 3457071, *3 (AAO Oct. 26, 2004). The decision was not published as a precedent and therefore does not bind USCIS officers in future adjudications. See 8 C.P.R. § 103.3(c). Non-precedent decisions apply existing law and policy to the specific facts ofthe individual case, and may be distinguishable based on the evidence in the record of proceedings, the issues considered, and applicable law and policy. Moreover, in that case, we found that a financial officer's statement, supported by a copy of a federal income tax return, demonstrated the petitioner's ability to pay one foreign national beneficiary. Unlike this case, Matter of X did not discuss a petitioner's ability to pay the proffered wages of multiple beneficiaries. Considering the hundreds of additional proffered wages for which the Petitioner remains responsible, the statement from its financial officer is insufficient to demonstrate its ability to pay.
Next, the Petitioner argues that the Director did not consider the income that its future physical therapist employees would generate, which exceeds their salaries and employment-related expenses. Its CPO states that the Petitioner has an "annualized profit margin ... in excess of $20,000" for each physical therapist it employs. Citing Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989) and Construction and Design Co. v. USCJS, 563 P.3d 593 (7th Cir. 2009), the Petitioner states that we must consider the potential net income generated by these foreign national employees in determining its ability to pay the proffered wages.
Although the Petitioner's income may rise with each additional physical therapist it employs, there are 7 additional costs associated with the employment of a new employee as well.
The Petitioner asserts
For example, the U.S. circuit court noted in Construction and Design Co. that in addition to salary, an employer has to pay "employment taxes (plus employee benefits, if any)." ld, 563 F.3d at 596. The Petitioner has not explained if its analysis includes employee compensation expenses which may include legally required benefits (social security, Medicare, federal and state unemployment insurance, and worker's compensation), employer costs for providing p. 5 that it incurs an average of approximately $10,000 per year "on administrative, tax, and healthcare expenses per employee." However, it has not supported the assertion with relevant, probative, and credible evidence. See Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). Further, the record does not establish the Petitioner's ability to pay the combined proffered wages of the Beneficiary and other beneficiaries named in pending petitions. Specifically, it has not established that its 2015 annual net income or net current assets equal or exceed the total annual proffered wages of these foreign nationals.
Like the instant Beneficiary, USCIS records indicate that most ofthe other beneficiaries live outside the United States. They therefore cannot work and generate net income for the Petitioner immediately upon the filing o f their petitions. Rather, they must wait for approvals o f their petitions and their subsequent immigrant visas before they can legally enter the United States and earn net income for the Petitioner. The record is insufficient to establish that the Petitioner's current employees generate sufficient net income to fund the combined proffered wages ofall its pending beneficiaries, many ofwhom have been waiting for approvals to enter the United States and have not been earning net income for the Petitioner.
In dicta, the decisions in Construction and Design Co. and Masonry Masters, Inc. state that a petitioner would not likely seek to employ a foreign national unless the employment would increase its net income. Constr. & Design Co., 563 F.3d at 597; Masonry Masters, 'Inc., 875 F.2d at 903. However, unlike the instant case, neither of those cases involved a petitioner responsible for paying proffered wages to multiple beneficiaries who lived outside the United State~. The facts ofthose cases therefore distinguish them from the instant matter and render them unpersuasive authority.
As previously indicated, we may also consider evidence ofa petitioner's ability to pay a proffered wage beyond its net income and net current assets. See Sonegawa, 12 I&N Dec. at 614-15. As in Sonegawa, we may consider such factors as: the number of years a petitioner 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 an employee or outsourced service; or other ev.idence of its ability to pay the proffered wage.
In the instant case, the record indicates that the Petitioner has been in business since 2003. From 2014 to 2015, it increased its number of employees, annual gross receipts or sales, and salaries and wages paid. It has provided evidence of its reputation as a fast-growing company, and the record does not show that the Beneficiary will replace an employee or outsourced service. The evidence, specifically, the 2014 and 2015 tax returns, however, demonstrates that the Petitioner incurred a substantial loss with its "[o]rdinary business income (loss)'' going from -$8,417 to -$1,393,136. In addition, unlike the petitioner in Sonegawa, the Petitioner here must demonstrate its ability to pay the combined proffered wages of multiple beneficiaries. Thus, considering the totality of the circumstances in this case pursuant to Sonegawa, the record is insufficient to establish the insurance benefits (life, health, disability), paid leave benefits (vacations, holidays, sick, and personal leave), retirement and savings (defined benefit and defined contribution), and supplemental pay (overtime and premium, shift differentials, and nonproduction bonuses).
Petitioner's ability to pay the Beneficiary's proffered wage, as well as the wages of other 8 beneficiaries, from the petition's priority date onward. decision and dismiss the appeal.
B. ScheduleA,GroupINoticeofPosting
Consequently, we will affirm the Director's
As an additional matter, we find in this case that the Petitioner has not met its notice requirements. A petition for a Schedule A, Group I occupation must contain evidence establishing that the employer provided its U.S. workers with notice of the position it seeks to fill as well as its filing of the ETA Form 9089. 20 C.P.R. § 656.10(d); 20 C.P.R. § 656.15(b)(2). In this case, as there is no bargaining representative, the Petitioner must notify its U.S. workers by posting notices at the facilityorphysicallocationoftheintendedemployment. See20C.F.R.§656.10(d)(l)(ii).
The addendum to section H of the ETA Form 9089 reflects that the Beneficiary will be employed at 9 one of four identified locations in Oregon "or [at] a yet unknown worksite." evidence that the notice was provided at four of the Petitioner's client sites in Oregon where the Beneficiary may be employed, but not at the work-sites of all of the Petitioner's current clients.
Under USCIS policy, the Petitioner must post the notice at the location where the Beneficiary "is actually going to be physically employed such as the hospital or other facility where the DOL has explained that:
If the employer does not know wherb the Schedule A employee will be placed, the 1. employer must post the notice at that [sic] work-site(s) of all of its current clients, and publish the notice of filing internally using eleptronic and print media according to the normal procedures used by the employer to notify its employees of employment As the Petitioner has not demonstrated that it posted the notice at all of the worksites of its, current clients, it has not shown that it meets the regulatory notice requirements. See 20 C.F.R. § 656.1 0(d). In addition, the Petitioner has not submitted a proper DOL ETA Form 9141; Application for Prevailing Wage Determination, for the intended location(s) of employment. Specifically, the ETA Form 9089 indicates that the primary worksites for the physical therapist position offered to the Beneficiary are in Oregon, while the submitted ETA Form 9141 lists the Petitioner's Florida office as the sole intended employment location. See 20 C.F.R. §§ 656.40, 656.41. Therefore, the record does not establish that the proffered wage of $75,650 for an employmentlocation in Florida is the appropriate rate ofcompensation for the location(s) ofthe intended employment specified in the ETA Form 9089. 9 We note, however, that the Petitioner provided its office location in Florida as the Beneficiary's worksite on ETA Form 9141, indicating that she would only be employed at the Florida location on page 3 ofthe form.
USCIS Policy Memorandum, HQPRD70/23.12, AFM Update: Chapter 22: Employment-based Petitions (AD03"0/) 15-18 (Sept. 12, 2006), https://www.uscis.gov/sites/default/files/USCJS/Laws/Memoranda/Static_Files_Memoranda/ Archives%20 I998-2008/2006/afm_ch22_091206r.pdf (last accessed on May I0, 2017, and incorporated into the record o f proceedings).
See DOL's Frequently Asked Questions and Answers, Notice of Filing, #12 located at https://www.foreignlaborcert. doleta.gov/faqsanswers.cfm#q! 176 (last accessed on May I0, 2017, and incorporated into the record of proceedings).
[B]eneficiary will be directly providing services." opportunities in the occupation in question.
The record contains
IlL CONCLUSION
The Petitioner has not established its ability to pay the Beneficiary's proffered wage from the petition's priority date onward. In addition, it has not satisfied the regulatory notice requirements for .a Schedule A, Group I labor certification. Accordingly, the Petitioner has not shown its eligibility for the immigration benefit sought.
ORDER: The appeal is dismissed.
Cite as Matter ofA-H-P-, LLC, ID# 142314 (AAO June 13, 2017)