dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
In Re : 24845354 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 19, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner seeks to permanently employ the Beneficiary as a nursing assistant. It requests the 
Beneficiary's classification under the third-preference, immigrant visa category as an "other worker" 
requiring less than two years of training or experience . See Immigration and Nationality Act (the Act) 
section 203(b)(3)(A)(iii), 8 C.F.R. § 1153(b)(3)(A)(iii). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish the Beneficiary has met the minimum training and experience requirements stated on the 
ETA Form 9089, Application for Permanent Employment Certification (ETA 9089) . The matter is 
now before us on appeal. 
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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (DOL). See section 
212(a)(5) of the Act, 8 U.S .C. § l 182(a)(5) . 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 (Form 1-140) with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the 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 . 
II. ANALYSIS 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(D) requires that a petition filed under this classification 
must be accompanied by evidence a beneficiary "meets any educational, training and experience, and 
other requirements of the labor certification." 
In section H.14 of ETA Form 9089, the Petitioner listed the proffered petition's "Specific skills or 
other requirements": 
Employer requires: 1. Must be a high school graduate. 2. Must have completed at least 
2 months post-high school Nursing Assistant training. 3. Must have 3 months experience 
working as a healthcare worker at a healthcare facility (any position). 4. Must have BLS 
CPR certificate. 5. CNA certification preferred but not required. 
As documentation the Beneficiary "completed at least 2 months post-high school Nursing Assistant 
training," the Petitioner submitted her "Certificate of Completion" from I I College's 
"Nursing Assistant Training Program" indicating that she participated in the program from "October 
24, 2020 to December 7, 2020" (45 days). The Director determined that the Beneficiary's Nursing 
Assistant training accounted for only 45 days of the required two months of training and therefore she 
did not meet the minimum training requirement stated on the labor certification. 
On appeal, the Petitioner contends that the two months' Nursing Assistant training requirement "leaves 
room for interpretation. It does not mention days (as the [Director] calculated 45 days and claims the 
requirement is for 60 days) but rather mentions a type of training which routinely takes approximately 
2 months." In addition, the Petitioner states that the dates of the program "did in fact reflect 45 
calendar days, however, if you take into account the weekend days, the course equivalent [sic] to 60 
business days." The record, however, does not include corroborating evidence showing that the 
Beneficiary's Nursing Assistant program included weekend training days. Nonetheless, even 
including weekends, the training program falls short of "at least 2 months" as specified in the labor 
certification. 
The Petitioner further argues that "the Beneficiary continued at the !college and 
completed additionally the Home Health Aide Training Program ... for an additional 6 weeks .... 
Thus, she clearly has more than the 2 months training required under any interpretation." 1 The 
appellate submission includes a memorandum from College indicating that 
Beneficiary was registered in the school's Home Health Aide Training Program until January 19, 
2021. The Petitioner also submits information about California's Certified Nurse Assistant "Licensing 
and Certification Program" and "Home Health Aide Requirements in California." The Beneficiary's 
additional Home Health Aide Training program, however, reflects training for a different occupation 
and therefore we cannot conclude that she has completed at least two months of "Nursing Assistant 
training." 
In order to determine what a job opportunity requires, we must examine "the language of the labor 
certification job requirements." Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). USCIS must 
1 The Petitioner has not provided evidence indicating that training as a "Home Health Aide" constitutes "Nursing Assistant" 
training. 
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examine the certified job offer exactly as it is completed by the prospective employer. See Rosedale 
Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984). Our interpretation of the job's 
requirements must involve reading and applying the plain language of the alien employment certification 
application form. Id. at 834. Here, the Petitioner has not demonstrated that the Beneficiary has at least 
two months of Nursing Assistant training. Accordingly, she does not meet the minimum training 
requirement of the labor certification. 
In his decision, the Director discussed an additional ground for denying the petition. The Director stated 
that the Beneficiary did not meet the requirement for three months of experience working as a healthcare 
worker at a healthcare facility. Since our finding that the Beneficiary does not meet the labor 
certification's minimum training requirement is dispositive of this appeal, we will not address the 
experience issue at this time. However, we reserve this issue for future proceedings. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues 
the decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N 
Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
III. CONCLUSION 
We will dismiss the appeal because the Petitioner has not established that the Beneficiary has the training 
required by the terms of the labor certification. 
ORDER: The appeal is dismissed. 
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