dismissed EB-2 Case: Nursing

U.S. Department of Homeland Security 
U. S. C~t~zensh~p and Irnm~grat~on Sewlces 
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 Ofice ofAdmznistratzve Appeals MS 2090 
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 Wash~ngton, DC 20529-2090 
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 U. S. Citizenship 
and Immigration 
Services 
- 
P"tTRtTC COPY 
FILE: LIN 07 021 52 143 Office: NEBRASKA SERVICE CENTER Date: 
IN RE: 
PETITION: 
 Immigrant petition for Alien Worker as a Member of the Professions Holding an 
Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of 
the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
If you believe the law was inappropriately applied or you have additional information that you wish 
to have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 
C.F.R. !j 103.5 for the specific requirements. All motions must be submitted to the office that 
originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of 
$585. Any motion must be filed within 30 days of the decision that the motion seeks to reconsider 
or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
John F. Grissom [/L 
Acting Chief, Administrative Appeals Office 
LIN0702152143 
Page 2 
DISCUSSION: 
 The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is a nursing staffing agency. It seeks to place the beneficiary with an employer in the 
United States as a nurse pursuant to section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 8 1153(b)(2). The petition is accompanied by a Form ETA 9089, Application for 
Permanent Employment Certification, which was not certified by the Department of Labor. The 
Form ETA 9089 indicates in Block H that the minimum level of education required for the position 
is a bachelor's degree in nursing and that experience in the job is not required. 
The director determined that the Form ETA 9089 failed to demonstrate that the job requires a 
professional holding an advanced degree or the equivalent of an alien of exceptional ability and, 
therefore, the beneficiary cannot be found qualified for classification as a member of the professions 
holding an advanced degree or an alien of exceptional ability. 8 C.F.R. 5 204.5(k)(4). The director 
denied the petition accordingly. The director also noted three additional deficiencies in the petition. 
The director indicated that the petitioner failed to establish (1) that it has made a bona fide offer of 
full-time, permanent employment to the beneficiary; (2) that the petitioner gave proper notice of the 
filing of a Schedule A application as mandated by 20 C.F.R. 5 656.10(d); and (3) that the petitioner 
failed to establish that it has the ability to pay the beneficiary's proffered wage as well as the wages 
of the nine other beneficiaries for whom the petitioner has filed 1-140 petitions. 8 C.F.R. § 
204.5(g)(2). 
On appeal, counsel fails to address the director's primary basis for denying the petition, i-e., the 
petitioner's failure to demonstrate that the job requires a professional holding an advanced degree or 
the equivalent of an alien of exceptional ability. Instead, counsel argues that the "actual petitioner" 
is Medstar Health, Inc. ("Medstar") and that Medstar will permanently employ the beneficiary. The 
petitioner is only paid a "one time finders fee." Counsel also argues that Medstar's ability to pay the 
proffered wages is "beyond question." 
The record shows that the appeal is properly filed and timely. The procedural history in this case is 
documented by the record and incorporated into the decision. Further elaboration of the procedural 
history will be made only as necessary. 
In pertinent part, section 203(b)(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. 5 204.5(k)(2). The 
regulation hrther states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Id, 
LIN 07 021 52143 
Page 3 
Section 203(b)(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States." The regulation at 8 C.F.R. 8 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
Here, the Form 1-140 was filed on October 27, 2006. On Part 2.d. of the Form 1-140, the petitioner 
indicated that it was filing the petition for a member of the professions holding an advanced degree 
or an alien of exceptional ability. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 8 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 199 1). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. 
The regulation at 8 C.F.R. § 204.5(k)(4) states in pertinent part that "[tlhe job offer portion of an 
individual labor certification, Schedule A application, or Pilot Program application must demonstrate 
that the job requires a professional holding an advanced degree or the equivalent of an alien of 
exceptional ability." 
In this case, the job offer portion of the Form ETA 9089 indicates that the minimum level of 
education required for the position is a bachelor's degree in nursing and that experience in the job is 
not required. Accordingly, the job offer portion of the Form ETA 9089 does not require a 
professional holding an advanced degree or the equivalent of an alien of exceptional ability, and the 
appeal must be dismissed. 
Furthermore, as noted by the director, the petition is deficient, and may not be approved, for three 
additional reasons.' 
First, the petitioner has failed to establish that it has made a bona fide offer of full-time, permanent 
employment to the beneficiary as the alien's actual employer. 
The petitioner has applied for the beneficiary under a blanket labor certification pursuant to 
20 C.F.R. 8 656.5, Schedule A, Group I. See also 20 C.F.R. 8 656.15. Schedule A is the list of 
occupations set forth at 20 C.F.R. § 656.5 with respect to which the Department of Labor (DOL) has 
I 
 An application or petition that fails to comply with the technical requirements of the law may be denied 
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9. 
LIN0702152143 
Page 4 
determined that there are not sufficient United States workers who are able, willing, qualified and 
available, and that the employment of aliens in such occupations will not adversely affect the wages 
and working conditions of United States workers similarly employed. 
Based on 8 C.F.R. $8 204.5(a)(2) and (1)(3)(i) an applicant for a Schedule A position would file 
Form I- 140, "accompanied by any required individual labor certification, application for Schedule A 
designation, or evidence that the alien's occupation qualifies as a shortage occupation within the 
Department of Labor's Labor Market Information Pilot The priority date of any 
petition filed for classification under section 203(b) of the Act "shall be the date the completed, 
signed petition (including all initial evidence and the correct fee) is properly filed with [U.S. 
Citizenship and Immigration Services (USCIS)]." 8 C.F.R. 8 204.5(d). 
Pursuant to the regulations set forth in Title 20 of the Code of Federal Regulations, the filing must 
include evidence of prearranged employment for the alien beneficiary. The employment is evidenced 
by the employer's completion of the job offer description on the application form and evidence that the 
employer has provided appropriate notice of filing the Application for Alien Employment Certification 
to the bargaining representative or to the employer's employees as set forth in 20 C.F.R. $ 656.10(d). 
Also, according to 20 C.F.R. $ 656.15(~)(2), aliens who will be permanently employed as 
professional nurses must have (1) passed the Commission on Graduates of Foreign Nursing Schools 
(CGFNS) Examination, or (2) hold a full and unrestricted license to practice professional nursing in 
the [sltate of intended employment, or (3) that the alien has passed the National Council Licensure 
Examination for Registered Nurses (NCLEX-RN). 
Finally, the regulations require that the actual "employer" file the Form 1-140. 
 8 C.F.R. 5 
204.5(1)(1). The regulation at 20 C.F.R. $ 656.3 states: 
Employer means a person, association, firm, or a corporation which currently has a 
location within the United States to which U.S. workers may be referred for 
employment, and which proposes to employ a full-time worker at a place within the 
United States or the authorized representative of such a person, association, firm, or 
corporation. 
In Matter of Smith, 12 I&N Dec. 772 (Dist. Dir. 1968), the petitioner, a staffing service, provided a 
continuous supply of secretaries to third-party clients. The district director determined that the 
staffing service, rather than its clients, was the beneficiary's actual employer. To reach this 
conclusion, the director looked to the fact that the staffing service would directly pay the 
beneficiary's salary; would provide benefits; would make contributions to the beneficiary's social 
2 
 On March 28, 2005, pursuant to 20 C.F.R. $ 656.17, the Application for Permanent Employment 
Certification, Form ETA 9089, replaced the Application for Alien Employment Certification, Form 
ETA 750. The new Form ETA 9089 was introduced in connection with the re-engineered permanent 
foreign labor certification program (PERM), which was published in the Federal Register on 
December 27, 2004, with an effective date of March 28, 2005. See 69 Fed. Reg. 77326 (Dec. 27, 
2004). 
LIN0702152143 
Page 5 
security, worker's compensation, and unemployment insurance programs; would withhold federal 
and state income taxes; and would provide other benefits such as group insurance. Id. at 773. 
In Matter of Ord, 18 I&N Dec. 285 (Reg. Comm. 1992), a firm sought to utilize the H-1B 
nonimmigrant visa program and temporarily outsource its aeronautical engineers to third-party 
clients on a continuing basis with one-year contracts. In Ord at 286, the Regional Commissioner 
determined that the petitioning firm was the beneficiary's actual employer, not its clients, in part 
because it was not an employment agency merely acting as a broker in arranging employment 
between an employer and a job seeker, but had the authority to retain its employees for multiple 
outsourcing projects. 
In Matter of Artee, 18 I&N Dec. 366 (Comm. 1982), the petitioner was seeking to utilize the H-2B 
program to employ machinists who were to be outsourced to third-party clients. The commissioner 
in this instance again determined that where a staffing service does more than refer potential 
employees to other employers for a fee, where it retains its employees on its payroll, etc., the staffing 
service rather than the end-user is the actual employer. Id. 
In this matter, the petitioner admits on appeal that it will not employ the beneficiary. To the 
contrary, the petitioner claims that Medstar will be the beneficiary's actual employer, that Medstar 
will be paying the beneficiary, and that the petitioner will only be paid a one-time finder's fee.3 
Therefore, the petitioner is not the actual employer in the instant matter. Medstar has not filed a 
Form 1-140 and has not signed a Form ETA 9089 pertaining to the proposed employment. It is 
further noted that the petitioner may not amend the current petition to replace itself with Medstar as 
the petitioner. A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm. 1988). Instead, the appropriate remedy would be to file another petition with the 
proper fee and required documentation. Accordingly, the petitioner in this matter is not entitled to 
the benefit sought, and the petition may not be approved for this additional reason. 
Second, the petitioner has failed to establish that it gave notice of the filing of the Schedule A 
application pursuant to 20 C.F.R. fj 656.1 O(d), which provides in pertinent part: 
3 
 The record contains a Service Provider Agreement (Agreement) dated May 19, 2005, between the 
petitioner and Harbor Hospital, a member of Medstar, for the provision by the petitioner of 
registered nurses and other medical personnel to Medstar. While the Agreement provides that the 
petitioner will pay all wages, workers' compensation and unemployment compensation owed to its 
personnel, counsel's assertions on appeal contradict the terms of the Agreement. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Further, the petitioner has provided no evidence to establish that the 
Agreement was in effect as of the priority date in 2007. 
LIN 07 021 52143 
Page 6 
(1) In applications filed under 5 656.15 (Schedule A), 656.16 
(Sheepherders), $ 656.17 (Basic Process); 3 656.18 (College and 
University Teachers), and 6 656.21 (Supervised Recruitment), the 
employer must give notice of the filing of the Application for 
Permanent Employment Certification and be able to document that 
notice was provided, if requested by the certifying officer as follows: 
(i) 
 To the bargaining representative(s) (if any) of the employer's 
employees in the occupational classification for which certification of 
the job opportunity is sought in the employer's location(s) in the area 
of intended employment. Documentation may consist of a copy of the 
letter and a copy of the Application for Permanent Employment 
Certification form that was sent to the bargaining representative. 
(ii) If there is no such bargaining representative, by posted notice to 
the employer's employees at the facility or location of the 
employment. The notice must be posted for at least 10 consecutive 
business days. The notice must be clearly visible and unobstructed 
while posted and must be posted in conspicuous places where the 
employer's U.S. workers can readily read the posted notice on their 
way to or from their place of employment . . . In addition, the 
employer must publish the notice in any and all in-house media, 
whether electronic or printed, in accordance with the normal 
procedures used for the recruitment of similar positions in the 
employer's organization. 
As correctly noted by the director, the record is devoid of evidence that the petitioner has given 
proper notice pursuant to 20 C.F.R. 5 656.10(d). Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of SqfJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Third, the petitioner had not established that it had the continuing ability to pay the beneficiary the 
proffered wage beginning on the priority date of the visa petition. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. 
 Any petition 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. 
LIN 07 021 52 143 
Page 7 
Here, the petitioner(s) identified on the Form 1-140 admit on appeal that they are neither the "actual 
petitioner" nor the future employer of the beneficiary. The petitioner(s) claim that Medstar will 
employ the beneficiary and that "Medstar's assets and ability to pay the beneficiary nurses are 
beyond question, which evidence has been previously provided." However, each petition filing is a 
separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d).~ In making a determination of 
statutory eligibility, USCIS is limited to the information contained in the record of proceeding. See 
8 C.F.R. 5 103.2(b)(16)(ii). Once again, going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Furthermore, even if the petitioners' ability to pay were relevant to this petition, the director correctly 
concluded that the evidence submitted does not establish that the petitioner(s) have the ability to pay 
both the proffered wage and the wages of the nine other beneficiaries for whom the petitioner(s) 
have filed Forms 1-140. The primary petitioner, which appears to be United Nursing Agency and 
- - - 
Recruitment Services, Inc., cannot combine its resources with another party, - 
PC, and "share" responsibility for the beneficiary. The regulations foresee only one individual 
employer filing a petition, not joint employers pooling resources and filing petitions collectively. 
See generally 8 C.F.R. 5 204.5(1) and 20 C.F.R. 5 656.3(1). Moreover, the petitioners' 2005 tax 
returns indicate that the petitioners each had -510,741 .OO and $22,185.00 in net income5 respectively 
and $8,472.00 and $1 56,448.00 in net assets6 respectively. Even combined together, it has not been 
established that either or both have the ability to pay the proffered wage and the wages of the nine 
other beneficiaries for whom the petitioner(s) have filed Forms I-140.~ 
4 
 Because a corporation is a separate and distinct legal entity from its owners and shareholders, the 
assets of other enterprises or corporations cannot be considered in determining the petitioning 
corporation's ability to pay the proffered wage. See Matter of Aphrodite Investments, Ltd., 17 I&N 
Dec. 530 (Comm. 1980). In a similar case, the court in Sitar v. Ashcroft, 2003 WL 22203713 
(D.Mass. Sept. 18, 2003) stated, "nothing in the governing regulation, 8 C.F.R. 5 204.5, permits 
[USCIS] to consider the financial resources of individuals or entities who have no legal obligation to 
pay the wage." 
For an S corporation filing a 2005 Form 1120S, ordinary income (loss) from trade or business 
activities is reported on Line 21 of Form 1120S, and income/loss reconciliation is reported on 
Schedule K, Line 17e. When the two numbers differ, the number reported on Schedule K is used for 
net income. 
Net current assets are the difference between the petitioner's current assets and current liabilities. 
A corporation's year-end current assets are shown on Schedule L, lines 1 through 6 and include 
cash-on-hand. Its year-end current liabilities are shown on lines 16 through 18. 
7 
 The petitioner's reliance on appeal on the balances in its bank accounts is misplaced. First, bank 
statements are not among the three types of evidence, enumerated in 8 C.F.R. 5 204.5(g)(2), required to 
illustrate a petitioner's ability to pay a proffered wage. While ths regulation allows additional material 
"in appropriate cases," the petitioner in ths case has not demonstrated why the documentation specified 
at 8 C.F.R. 5 204.5(g)(2) is inapplicable or otherwise paints an inaccurate financial picture of the 
Page 8 
Accordingly, the petitioner has failed to establish that it has the ability to pay the proffered wage, 
and the petition may not be approved for this additional reason. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a 
plaintiff can succeed on a challenge only if he shows that the AAO abused its discretion with respect 
to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. 
Supp. 2d at 1043. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. 5 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
petitioner. Second, bank statements show the amount in an account on a given date, and cannot show 
the sustainable ability to pay a proffered wage. Third, no evidence was submitted to demonstrate that 
the funds reported on the petitioner's bank statements somehow reflect additional available funds that 
were not reflected on its tax return, such as the petitioner's taxable income (income minus deductions) 
or the cash specified on Schedule L that is being considered in determining the petitioner's net current 
assets.