The Petitioner, a provider of health care personnel, seeks to employ the Beneficiary as a nurse supervisor. Thecompanyrequestsherclassificationunderthesecond-preference,immigrantcategory for members of the professions holding advanced degrees or their equivalents. See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A).
After the filing's initial grant, the Director ofthe Texas Service Center revoked the petition's approval and dismissed the Petitioner's following, combined motions to reopen and reconsider. The Director concluded that the Petitioner did not demonstrate: 1) the bona fidesofthe job offer; 2) the job's need for an advanced degree professional; or 3) the company's required ability to pay the proffered wage.
In revocation proceedings, the Petitioner bears the burden of establishing eligibility for the requested benefitbyapreponderanceofevidence. SeeMatter of Ho1,9I&NDec.582,589(BIA1988)(citation omitted) (discussing the burden ofproof); see also Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010) (discussing the standard ofproof). Upon de nova review, we will dismiss the appeal.
Employment-Based Immigration
Immigration as an advanced degree professional usually follows a three-step process. First, to permanently fill a position in the United States with a foreign worker, a prospective employer must obtain certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). If DOL approves a position, an employer must next submit the certified labor application with an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. § 1154. Finally, if USCIS grants a petition, a designated noncitizen may apply abroad for an immigrant visa or, if eligible, for adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255.
DOL, however, has already determined that the United States lacks sufficient nurses and that employment of noncitizens in these "Schedule A" positions will not harm the wages or working conditions of U.S. workers in similar positions. 20 C.F.R. § 656.5. Thus,DOL authorizes USCIS to adjudicate Schedule A labor certification applications for nurses in immigrant visa petition proceedings. 20 C.F.R. § 656.15(a). In this matter, USCIS therefore rules not only on the petition, p. 2 but also on its accompanying labor certification application. See 20 e.F.R. § 656.15(e) (describing USCIS'slabor certification determinations in Schedule A proceedings as "conclusive and final").
Also, "at any time" before a beneficiary obtains lawful permanent residence, users may revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.e. § 1155. If supported by a record, the enoneous nature of a petition's approval justifies its revocation. Matter of Ho, 19 I&N Dec. at 590. u s e r s p r o p e r l y i s s u e s a n o t i c e o f i n t e n t to r e v o k e ( N O I R ) a p e t i t i o n ' s a p p r o v a l i f t h e u n e x p l a i n e d and unrebutted record at the time of the NOIR's issuance would have wananted the petition's denial. Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). If a petitioner's NOIR response doesn't resolve or rebut alleged revocation grounds, users properly revokes a petition's approval. Id. at 451-52.
Ability to Pay the Proffered Wage
A petitioner must demonstrate its continuing ability to pay the proffered wage of an offered position, from a petition's priority date until a beneficiary obtains lawful permanent residence. 8 e.F.R. §204.5(g)(2). Evidenceofabilitytopaymustgenerallyincludecopiesofannualrep01is,federaltax returns, or audited financial statements. Id.
In determining ability to pay, u s e r s examines whether a petitioner paid a beneficiary the full proffered wage each year beginning from the year of a petition's priority date. If a petitioner did not annually pay the full proffered wage or did not pay a beneficiary at all, users considers whether the business g e n e r a t e d s u f f i c i e n t a n n u a l a m o u n t s o f n e t i n c o m e o r n e t c u r r e n ta s s e t s t o p a y a n y d i f f e r e n c e s b e t w e e n the proffered wage and the wages paid. If net income and net currentassets are insufficient, users may consider other factors affecting a petitioner's ability to pay a proffered wage. See Matter of The accompanying labor certification application states the proffered wage of the offered position of nursesupervisoras$96,500ayear. Thepetition'sprioritydateisDecember28,2015,thepetition's filingdate. See8e.F.R.§204.5(d)(explaininghowtodetermineapetition'sprioritydate). usersapprovedthepetitioninFebruary2016. ThePetitionerthereforehadtodemonstrateitsability to pay the proffered wage in 2015, the year of the petition's priority date, and 2016.
ThePetitionerdidnotsubmitevidencethatitpaidtheBeneficiaryin2015. ButthePetitionerprovided a copy of an IRS Form W-2, Wage and Tax Statement, indicating that the company paid her $24,152 in 2016. This amount does not equal or exceed the annual proffered wage of $96,500. Thus, based solely on wages paid, the Petitioner did not demonstrate its ability to pay the proffered wage in 2015 or 2016.
FederalcourtshaveupheldUSCIS'methodofdeterminingapetitioner'sabilitytopayaprofferedwage. See,e.g.,River St. Donuts. LLC v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Just Bagels Mfg.. Inc. v. Mayorkas, 900 F. Supp. 2d 363, 373-76 (S.D.N.Y.2012).
Sonegawa. 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967).
Nonetheless, we creditthe Petitioner's paymentto the Beneficiary in 2016. For that year, the company need only demonstrate its ability to pay the difference between the proffered wage and the wages paid - or $72,348.
The petition included copies of the Petitioner's federal income tax return for 2014 and financial statements for 2015. As the Director's NOIR notes, however, the record lacked regulatory required evidence of the company's ability to pay the proffered wage from the year of the petition's priority date onward. The 2014 tax return covers the year before the year ofthe petition's priority date. Also, contrary to 8 C.F.R. § 204.5(g)(2), the 2015 financial statements do not indicate that they were "audited." The record therefore did not demonstrate the Petitioner's ability to pay the proffered wage from the year of petition's priority date onward.
The Petitioner's NOIR response included copies of federal income tax returns for 2015 and 2016, as well as audited financial statements for 2016. The record, however, does not establish that these materials constitute regulatory required evidence of the company's ability to pay in 2015 and 2016. See 8 C.F.R. § 204.5(g)(2) (stating that evidence of ability to pay "shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements") (emphasis added). The tax returns for 2014, 2015, and 2016 list a federal employer identification number (FEIN) different than the one the company stated on the Fonn I-140 and accompanying labor certification application. The inconsistentFEINscastdoubtontheauthenticityandaccuracyofthetaxreturns. SeeMatterofHo, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record with independent, objective evidence pointing to where the truth lies).Inconsistencies in the record Additionally, a petitioner must provide "evidence that the prospective United States employer has the ability to pay the proffered wage." 8 C.F.R. §204.5(g)(2)(emphasisadded). Becausethetaxreturnsreflectfinancialinformationofacompany with a different FEIN than the Petitioner, the record does not establish the returns as those of the Petitioner. ThetaxreturnsthereforedonotconstituteregulatoryrequiredevidenceofthePetitioner's ability to pay. Similarly, the FEIN discrepancies cast doubt on the accuracy and authenticity of the audited financial statements for 2016. The statements do not indicate to what FEIN their financial information corresponds. Thus, the statements also do not establish the Petitioner's ability to pay in 2016.
Even if we considered the tax returns submitted by the Petitioner as its own, they would not establish thecompany'sabilitytopaytheprofferedwage. The2015returnreflectsnetincomeof$72,293and net current assets of-$145,115. Neither ofthose amounts would equal or exceed the annual proffered wage of$ 96,500. The return therefore would not establish the Petitioner's ability to pay the proffered wage in 2015.
The 2016 tax return reflects $460,839 in net income and $434,467 in net current assets. Both those amounts would exceed the $72,348 difference between the annual proffered wage and the wages the Petitioner paid the Beneficiary that year. As noted, however, the FEIN discrepancies cast doubt on whether this return reflects the financial information of the Petitioner. Additionally, as the NOIR notes,thePetitionerfiledFormI-140petitionsforotherbeneficiaries. Apetitionermustdemonstrate its abilityto paytheprofferedwageofeachpetitionitfilesuntilabeneficiaryobtainslawfulpermanent residence. 8 C.F.R. § 204.5(g)(2). This Petitioner must therefore demonstrate its ability to pay the combined proffered wages of this and any other petitions it filed that were pending or approved as of this petition's priority date of December 28, 2015 or filed thereafter in 2015 or 2016. See Patel v.
Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our revocation of a petition's approval where,asofthefiling'sgrant, apetitionerdidnotdemonstrateitsabilityto paythecombinedproffered Contrary to the NOIR's instructions, the Petitioner did not provide information about its other Form 1-140petitions. See8C.F.R.§ 103.2(b)(14)(statingthat"[f]ailuretosubmitrequestedevidencewhich precludesamateriallineofinquiryshallbegroundsfordenyingthebenefitrequest"). USCISrecords indicate the Petitioner's filing of at least 30 Form 1-140 petitions for other beneficiaries that were On appeal, the Petitioner argues that other factors demonstrate its ability to pay the proffered wage in the relevant years. See Matter ofSonegawa, 12 I&N Dec. at 614-15. But we need not consider Sonegawa factors because, as noted above, the record lacks regulatory required evidence of the Petitioner'sabilitytopay. ThetaxreturnsandauditedfinancialstatementssubmittedbythePetitioner do not identify the company by the same FEIN it listed on the Form 1-140 and accompanying labor certificationapplication. ThePetitioner'sNOIRresponsealsoomittedrequestedevidenceneededto determine the company's total wage obligation to all applicable beneficiaries. Because of these evidentiary defects, regulations would not permit the Petitioner's demonstration of its ability to pay even if Sonegawa factors favored the company.
In the Petitioner's prior motions before the Director, the company asse1ied that the tax returns list its correctFEINandthatthe2016financialstatementsreflectitsfinancialdata. TheFEINlistedonthe Beneficiary's IRS Forms W-2 for 2016, 2017, and 2018 match the FEIN on the tax returns. But the FEIN on the Forms W-2 and tax returns do not match the FEIN listed on the 1-140 and labor certification filed with the instant petition, and USCIS records indicate the Petitioner's filing of multiple, Form 1-140 petitions under both FEINs. The record therefore does not establish the company's true identificationnumber. Also, ifthe tax returns, auditedfinancial statements, andF01ms W-2 reflect the Petitioner's true FEIN as the company asserts, the Petitioner has not explained why it listed the other FEIN on Forms 1-140 and labor certification applications. See Matter o fHo, 19 I&N Dec. at 591 (requiring a petitioner to resolve inconsistencies of record with independent, objective evidence).
The Petitionerneed not demonstrate its ability to pay proffered wages of petitions that it withdrew or, unless the filings remainpendingonappealormotion,thatUSCISrejected,denied,orrevoked. ThePetitioneralsoneednotdemonstrate its ability to pay proffered wages ofpetitions before their corresponding priority dates, or after the dates their corresponding beneficiaries obtained lawful permanent residence. 3..' wages o f multiple petitions). pending or approved as of December 28, 2015 or filed thereafter in 2015 or 2016. theprofferedwagesandprioritydatesoftheotherpetitions. Thus,USCIScannotcalculatethetotal proffered wages that the Petitioner must demonstrate its ability to pay each year. For this additional reason, the record does not demonstrate the Petitioner's ability to pay the proffered wage in 2015 or 2016.
The record lacks
For the foregoing reasons, the Petitioner has not demonstrated its ability to pay the proffered wage of theofferedposition. Wewillthereforeaffirmthepetition'srevocation.
The Bona Fides of the Job Offer
A business may file an immigrant visa petition if it is "desiring and intending to employ [anoncitizen] within the United States." Section 204(a)(1 )(F) of the Act. A petitioner must intend to employ a beneficiary under the terms of an accompanying labor certification application. See Matter of Izdebska, 12 I&N Dec. 54, 55 (Reg'l Comm's 1966) (affirming a petition's denial where, contrary to the terms of a labor certification, a petitioner did not intend to employ a beneficiary as a domestic workeronafull-time,live-inbasis). Forlaborcertificationpurposes,theterm"employment"means "[p]ermanent, full-time work." 20 C.F.R. § 656.3.
The Petitioner attested on the Form I-140 and accompanying labor certification applicationto its intent to employ the Beneficiary as a nurse supervisor on a permanent, full-time basis. The position involves superv1smgnurses. TheBeneficiarywouldworkatthesiteofthePetitioner'sclient,anursinghome in I The Beneficiary's application for adjustment of status includes a copy of her employment agreement with the Petitioner. The Director's NOIR notes that the agreement states the Petitioner's intent to employ the Beneficiary as a "Registered Professional Nurse." The job title in the agreement conflicts with that ofthe offeredposition of"Nurse Supervisor" stated on the Form I-140 and labor certification application. Based on the inconsistent job titles, the Director concluded that the Petitioner did not demonstrate its intent to employ the Beneficiary in the offered position.
The Director also found insufficient evidence of the Petitioner's claimed intent to employ the Beneficiaryonapermanentbasis. TheDirector'sNOIRanddecisionnotethattheinitial,employment agreement between the Petitioner and Beneficiary states a term of only two years. The amended agreement in the company's NOIR response similarly has a three-year term.
As previously discussed, we will affirm the revocation ofthe petition's approval based on insufficient evidence ofthe Petitioner's ability to pay the profferedwage. We therefore need not decide the issues related to the bonafides of the company's job offer. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding that administrative agencies need not make findings on issues "unnecessary to the results they reach"). We therefore hereby reserve the issues regarding the bonafides of the job offer for future consideration should their resolutions become necessary.
The Job's Need for an Advanced Degree Professional
If accompanying a petition for an advanced degree professional, the job-offer portion of a labor certification application "must demonstrate that the job requires a professional holding an advanced degree." 8 C.F.R. § 204.5(k)(4)(i). The term "advanced degree" means: a United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate or a foreign equivalent degree p. 6 followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2).
The accompanying labor certification application states the primary requirements of the offered position of nurse supervisor as a U.S. bachelor's degree, or a foreign equivalent degree, in nursing and five years of experience in the job offered or in "nursing or [an]other allied medical field." The application also states the Petitioner's acceptance of an alternate combination of education and Based on the job requirements listed on the laborce1iification application, the offered position appears to require an advanced degree. Consistent with the definition of "advanced degree" at 8 C.F.R. § 204.5(k)(2), the position requires at least a master's degree or a bachelor's degree followed by five years of experience.
TheNOIR,however,questionsthePetitioner'soccupationalclassificationoftheofferedposition. The NOIR notes that, on the Fonn I-140, the Petitioner classified the position under the DOL occupational experience: amaster'sdegree,withnotrainingorexperiencerequired. code (29-1141) of "registered nurse." registered nurses in the United States do not require advanced degrees or their equivalents. Rather, the database states that "[m]ost occupations in this [group] require training in vocational schools, related on-the-job experience, or an associate's degree." O*NET Online, "Summary Report for: 29- 1141.00-Registered Nurses," https://www.onetonline.org/link/summary/29-1141.00. The NOIR notes that another DOL publication also suggests that registered nurses in the United States need not have advanced degrees. The Occupational Outlook Handbook states that "[r]egistered nurses usually take one of three education paths: a bachelor's degree in nursing; an associate's degree in nursing; or a diploma from an approvednursingprogram." U.S. Bureau ofLabor Statistics, Occupational Outlook Handbook, "Registered Nurses," https://www.bls.gov/ooh/healthcare/registered-nurses.htm#tab-4. Thus, based on the occupational code listed by the Petitioner, the Director concluded that the company did not demonstrate the offered position's need for an advanced degree professional.
The DOL's occupational database indicates that most
As we will affirm the revocation ofthe petition's approval on another ground, we need not review the Director's finding of insufficient evidence of the offered position's need for an advanced degree professional. See INS v. Bagamasbad, 429 U.S. at 25. We therefore also hereby reserve this issue for future resolution, if needed.
Conclusion
The Petitioner did not demonstrate its required ability to pay the position's proffered wage from the petition's priority date onward. We will therefore affirm the revocation ofthe petition's approval.
ExaminationforRegisteredNurses,orastatelicenseasaregisterednurse. Satisfactionofthisrequirementisnotatissue. 5 The labor certification application and prevailingwage dete1mination classify the position under the same occupational code. The application further states that the position requires passage of the NCLEX-RN, the National Council Licensure p. 7 ORDER: The appeal is dismissed.