The Petitioner, a medical management or services provider for Oncology San Antonio, seeks to employ the Beneficiary as an electronic medical records manager. 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 from the priority date up to the present.
On appeal the Petitioner asserts in a statement accompanying its Form I-290B, Notice of Appeal or Motion, that the Director's decision was in error and that the evidence previously submitted establishes its continuing ability to pay the proffered wage. While the Petitioner indicated on the notice of appeal that it would file a brief and/or additional evidence within 30 days, no such materials have been received.
Upon de novo review, we will withdraw the Director's decision and remand the case for further consideration and the issuance ofa 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 2l2(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(S)(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 ofthe 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.
Matter ofP-M-M- LLC
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 regulation at 8 C.F.R. § 204.5(g)(2): 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 e_ither in the form ofcopies ofannual reports, federal tax returns, or audited financial statements. In a case where the prospective United States employer employs I00 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
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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 May 18, 2017. The labor certification states that the wage offered for the job of electronic medical records manager is $117,600 per year.
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the beneficiary was employed and paid by the petitioner during the period following the priority date. If the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage for the time period in question, when accompanied by a· form of evidence required in the regulation at 8 C.F.R. § 204.5(g)(2), may be considered proof of the petitioner's ability to pay the proffered wage.
In this case, the labor certification states that the Beneficiary started working for the Petitioner in March 2015, before the priority date. The Petitioner has submitted a copy of the Form W-2, Wage and Tax Statement, it issued to the Beneficiary for 2017, which shows that the Beneficiary received "wages, tips, other compensation" of $89,308. Since that figure was $28,292 below the proffered wage, the Petitioner has not established its continuing ability to pay the proffered wage from the priority date onward based on the wages it paid to the Beneficiary.
Ifa petitioner has not employed the beneficiary and paid him (or her) a salary equal to or above the proffered wage from the priority date onward, USCIS will examine the net income and net current assets figures recorded on the petitioner's federal income tax retum(s), annual report(s), or audited financial statement(s). If either of these figures, net income or net current assets, equals or exceeds the proffered wage or the difference between the proffered wage and the amount paid to the The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. §'204.S(d}: p. 3 Matter ofP~M-M- LLC beneficiary in a given year, the petitioner would be considered able to pay the proffered wage during that year. In this case the record includes a copy of the Petitioner's federal income tax return, Form 1120S, U.S. Income Tax Return for an S Corporation, for the 2016, which was the most recent filed by the Petitioner at the time of the Director's decision and the subsequent appeal. However, without the Petitioner's 201 7 federal tax return (or an annual report or audited financial statement for 2017), we are unable to assess the Petitioner's ability to pay the proffered wage to the Beneficiary from the priority date o f May 18, 201 7, onward. Accordingly, we will remand this rriatter 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 2017.
Conclusion
For the reasons discussed above, we will remand this case to the Directo_r 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 ofP-M-M- LLC, ID# 1592824 (AAO July 27, 2018)