dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 07, 2024 In Re: 28981537 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a healthcare staffing agency, seeks to employ the Beneficiary as a registered nurse. It 
requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U .S.C. § 
1153(b )(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to sponsor 
a noncitizen for lawful permanent resident status to work in a position that requires at least two years 
of training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had submitted a properly completed uncertified Form ETA 9089, 
Application for Permanent Employment Certification (labor certification application). The matter is 
now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
The DOL has determined that there are not sufficient U.S. workers who are able, willing, qualified, 
and available for certain occupations designated under Schedule A, which in relevant part includes 
workers who will be employed as professional nurses who hold a permanent, full, and unrestricted 
license to practice professional nursing in the state of intended employment. See 20 C.F.R. 
§ 656.5(a)(2)(ii). An employer seeking labor certification for a Schedule A occupation must apply 
under 20 C.F.R. §§ 656.10 and 656.15. 20 C.F.R. § 656.10(a)(3). 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 USCIS with an uncertified labor certification application. See 8 C.F.R. 
§ 204.5(a)(2); see also 20 C.F.R. § 656.15. 
An employer must document that it notified its employees of its Schedule A application. 20 C.F.R. 
§ 656.10( d)(l ). If employees in the offered position have no bargaining representative, an employer 
must post notice for at least 10 consecutive business days to its employees "at the facility or location 
of the employment." 20 C.F.R. § 656.10( d)(l )(ii). A filing notice must: state the application's filing; 
indicate that anyone may submit documentary evidence regarding the application to the DOL 
Certifying Officer; and provide the Certifying Officer's address. 20 C.F.R. §§ 656.lO(d)(l)(ii),(3). A 
filing notice must also contain a description of the job and its rate of pay. 
Also, a Schedule A employer must attest that "[ t ]he offered wage equals or exceeds the prevailing 
wage determined pursuant to [20 C.F.R.] § 656.40 and§ 656.41." 20 C.F.R. § 656.I0(c)(l). A 
prevailing wage determination from the DOL must be included with a Schedule A petition. 20 C.F.R. 
§ 656.15(b )(1 ). The proffered wage stated on a Schedule A filing notice therefore must equal or exceed 
the prevailing wage. 
An application for Schedule A designation of a skilled worker position must demonstrate that the job 
requires at least two years of training or experience. 8 C.F.R. § 204.5(1)(2), (4). "Relevant post­
secondary education may be considered as training for the purposes of this provision." 8 C.F.R. 
§ 204.5(1)(2) ( defining the term "skilled worker"). 
II. ANALYSIS 
As noted above, the Petitioner requests classification of the Beneficiary as a skilled worker under 
Schedule A, and stated in Parts H.4 and H.4-B of its Form ETA 9089 that the position of registered 
nurse requires an associate's degree in nursing. These job requirements comport with the requirements 
of the requested classification, wherein a position must require at least two years of training or 
experience, or two years of relevant post-secondary education. However, although the Petitioner 
answered "No" in in Part H.8 to indicate that an alternate combination of education and experience 
was not acceptable, it checked the box for a master's degree in H.8-A as an alternate education 
requirement. 
In response to the Director's request for evidence (RFE), which noted that the required filing notice 
and evidence regarding in-house media had not been submitted, the Petitioner submitted a filing notice 
which stated the minimum educational requirement for the registered nurse position as an associate' s 
degree in nursing. However, the Petitioner indicated on Form ET A-9141, Application for Prevailing 
Wage Determination (PWD), that the position requires a bachelor's degree in nursing as a minimum 
educational requirement. The Director noted this discrepancy in his notice of intent to deny (NOID), 
along with missing and incorrect information on the ETA-9089, including Part H.8-A. After review 
of the Petitioner's response to the NOID, the Director concluded that the Petitioner had not met its 
burden to resolve the discrepancy regarding the minimum education requirement. He accordingly 
denied the petition because it was not accompanied by a proper labor certification application. 
On appeal, the Petitioner does not dispute the discrepancy between the minimum educational 
requirements for the position listed on its PWD versus those listed on the ET A Form 9089 and notice 
of filing. But it asserts that there is no requirement under the regulations at 20 C.F .R. § 656.10( d) that 
the filing notice list the minimum educational requirements for the position, and that the Director's 
citation to a footnote from the USCIS Policy Manual's chapter regarding petitions for Schedule A 
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occupations imposes additional requirements beyond the regulations. We agree that the regulations 
do not include such a requirement. As far as the footnote, which states that the requirements on Form 
ETA 9089 "should line up with" those on listed on the PWD and filing notice, it serves as a reminder 
to adjudicators to be alert for discrepancies between these documents. 6 USC IS Policy Manual E. 7, n. 
40, www.uscis.dhs.gov/policy-manual. In any event, this argument does not address the discrepancy 
between the minimum educational requirement listed on the Form ETA 9089 and the PWD, both of 
which do require that information to be listed. 1 
The Petitioner's representative also asserts that the prevailing wage for a registered nurse position that 
requires a bachelor's degree is higher than that for a position requiring an associate's degree, and 
therefore accomplishes the purpose of the PWD and establishes that the proffered wage equals or 
exceeds the prevailing wage. But the record does not include a PWD for this position and location 
with an associate' s degree in nursing as the minimum requirement, and the unsubstantiated assertions 
of counsel do not constitute evidence. See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) 
("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any 
evidentiary weight"). 
It is the Petitioner's burden to resolve discrepancies in the record with independent, objective evidence 
pointing to where the truth lies. Matter ofHo, 19 T&N Dec. 582, 591-92 (BIA 1988). Here, the Petitioner 
has not offered an explanation for the different minimum and alternate educational requirements in the 
record or provided evidence to resolve these inconsistencies. 
In addition, these are not the only material discrepancies in the petition. The Petitioner stated in Part 
6 of Form I-140, Immigrant Petition for Alien Worker, that the Beneficiary would work at an address 
in New York, while it indicated in Part Hof the ETA Form 9089 and in the PWD that the work would 
be performed in South Carolina. While the Petitioner attempted to address this discrepancy by 
submitting a new I-140 form with the South Carolina worksite address, a petitioner may not make 
material changes to a petition that has already been filed to make an apparently deficient petition 
conform to USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 175 (Comm'r 1998). The 
location of the prospective worksite is material to both the notice of filing requirement and the 
prevailing wage requirement under DOL's Schedule A regulations. 
Because of the unresolved discrepancies concerning both the worksite location and the minimum 
requirements for the position of registered nurse, the Petitioner has not established that the PWD it 
submitted accurately reflects the wages offered for comparable positions at the worksite, and it 
therefore cannot show that the offered wage equals or exceeds the prevailing wage. Accordingly, the 
petition must remain denied. 
1 The Petitioner's representative devotes several pages of his brief to arguments about whether the USCIS Policy Manual 
superseded a previous USCIS memorandum that he cited in his response to the Director's NOID. Counsel cited that 
memorandum for the premise that the sole purpose of the PWD "is to ensure that that the prevailing wage determination 
is reflective of the wages being offered for comparable positions in the location where the job offer exists at the time that 
the 1-140 petitioner recruits the alien worker." As the USCIS Policy Manual includes nearly identical language, we will 
not address these arguments since they are moot. See 6 USCIS Policy Manual F.7(D)(l), www.uscis.gov/policy-manual. 
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ORDER: The appeal is dismissed. 
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