dismissed EB-3 Case: Healthcare

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
Ds 
PETITION: 
 Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. fj 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documenk have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The director of the Texas Service Center denied the immigrant visa petition and certified her 
decision to the Administrative Appeals Office (AAO) on appeal. The director's decision will be affirmed. 
The petition will remain denied. 
The petitioner is a healthcare recruiter. It seeks to sponsor the beneficiary in the United States as a registered 
nurse. The petitioner asserts that the beneficiary qualifies for blanket labor certification pursuant to 20 C.F.R. 
$ 656.10, Schedule A, Group I. The director denied the petition after determining that the petitioner was not 
the beneficiary's actual employer, that the job offer was not permanent and full-time, and that the petitioner 
failed to demonstrate its continuing ability to pay the proffered wage beginning on the priority date. 
Counsel submits a brief and copies of previously submitted evidence in connection with the certification. 
Section 203(b)(3) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. 8 1153(b)(3), provides for the 
granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing skilled or unskilled labor, not of a temporary or seasonal 
nature, for which qualified workers are not available in the United States. 
In this case, the petitioner filed an Immigrant Petition for Alien Worker (Form 1-140) for classification of the 
beneficiary under section 203(b)(3)(A)(i) of the Act as a registered nurse on January 17, 2006 with 
accompanying ETA Form 9089, Application for Permanent Employment Certification (Form 1-9089 or labor 
certification application). The regulatory scheme governing the alien labor certification process contains 
certain safeguards to assure that petitioning employers do not treat alien workers more favorably than U.S. 
workers. New Department of Labor (DOL) regulations concerning labor certifications went into effect on 
March 28, 2005. The new regulations are referred to by DOL by the acronym PERM. See 69 Fed. Reg. 
77325, 77326 (Dec. 27,2004). The PERM regulation was effective as of March 28,2005, and applies to labor 
certification applications for the permanent employment of aliens filed on or after that date. Thus, PERM 
applies to the instant case. 
Aliens who will be permanently employed as professional nurses are listed on Schedule A as occupations set 
forth at 20 C.F.R. fj 656.5 for which the Director of the United States Employment Service has 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. Also, according to 20 C.F.R. 5 656.5, aliens who will be 
permanently employed as professional nurses must have (1) passed the Commission on Graduates of Foreign 
Nursing Schools (CGFNS) Examination, (2) hold a full and unrestricted license to practice professional 
nursing in the [sltate of intended employment, or (3) have passed the National Council Licensure 
Examination for Registered Nurses (NCLEX-RN) administered by the National Council of State Boards of 
Nursing. 
An employer shall apply for a labor certification for a Schedule A occupation by filing an Application for Alien 
Employment Certification (Form ETA-750 at Part A) in duplicate with the appropriate Citizenship and 
Immigration Services (CIS) office. The Application for Alien Employment Certification shall include: 
1. 
 Evidence of prearranged employment for the alien beneficiary by having an employer complete and 
sign the job offer description portion of the application form. 
2. 
 Evidence that notice of filing the Application for Alien Employment Certification was provided to the 
bargaining representative or the employer's employees as prescribed in 20 C.F.R. 8 656.10(d). 
Page 3 
The AAO reviewed the record of proceeding concerning all requirements under Schedule A applications 
under its de novo review authority and determined that the petitioner has established the beneficiary's 
qualifications to perform the duties of the proffered position and that the wage offered in this case meets the 
prevailing wage rate for nursing positions in Pinal County, Arizona according to DOL's online wage library 
in accordance with 20 C.F.R. $9 656.15 and 656.40. The authority to adjudicate appeals is delegated to the 
AAO by the Secretary of Homeland Security pursuant to the authority vested in him through the Homeland 
Security Act of 2002, Pub. L. 107-296. 
The first issues to be discussed in this case are (1) whether the petitioner is the beneficiary's actual employer, 
and (2) whether the petitioner has offered employment to the beneficiary that is not of a temporary or seasonal 
nature. In connection with these determinations, CIS examines the evidence of arrangements made for the 
beneficiary to work permanently in the United States as a registered nurse at the time of filing the immigrant 
visa petition. 
In its initial petition, the petitioner submitted a letter to CIS dated December 30, 2005 stating that it would 
employ the beneficiary for a permanent position, describing her duties, and stating her compensation rate plus 
a benefits package. Additionally, with the initial submission, the petitioner submitted a letter dated December 
1, 2005 from the petitioner to the beneficiary offering her employment and informing her of her first 
assignment at the office of 
 'n Casa Grande, Arizona. The petitioner stated that it 
her and provide a comprehensive employee benefit package. A posting notice was posted 
location. 
In addition, there are two contracts, one between the petitioner and DocComply Solutions in Healthcare 
(DocComply), dated December 9, 2005, and one between DocComply and Dr 
November 17, 2005. As the director pointed out, both contracts contain the same hd provisions. T e irector dated 
quoted the most relevant provisions in her decision. In the contract between the petitioner and DocComply, 
the petitioner states that it screens potential healthcare workers and is responsible for the administrative 
aspects of those foreign healthcare workers7 immigration and qualifications for obtaining employment 
authorization to work in the United States. See 1. and 2.a. through 2.h. A recital at the beginning states that 
the healthcare workers "will be employed by [the petitioner] and retained by [DocComply] on a per diem 
basis for a trial period after which said candidate will become an employee of [DocComply] ..." 
Doccomply's responsibilities are to hire the healthcare workers on a full-time basis, pay the petitioner a sum 
for the healthcare worker, and complete forms submitted to CIS'. 
 See 3.a. through 3.d. 
 The term of 
agreement is one year. See 4. The contract does not specifically mention the beneficiary. As noted above, 
the contract between Doccomply and Dr. montains the same provisions with the same corresponding 
citations. 
The record of proceeding has no evidence concerning the employee benefit package that would be provided to 
the beneficiary. The contracts contain no provisions concerning who is responsible for compensating the 
beneficiary for work performed and the employee benefits package. The director correctly identified a critical 
issue in this case, namely, the identification of a specific contract covering the parameters of the beneficiary's 
employment. The petitioner must establish eligibility at the time of the visa petition's filing. Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
1 
 However, the petitioner signed the visa petition and Form 9089. 
- Page 4 
On certification, counsel states that "[tlhe immediate contract between the [pletitioner and [DocComply] is 
for one year with an automatic one-year renew1 [sic] as a result of traditional business practices." Counsel 
also states that the beneficiary would be permanently employed either through renewed contracts with 
DocComply or new contracts with other companies seeking to fill nursing shortages. Counsel also states that 
there is no regulatory requirement for the beneficiary's name to appear in a contract. 
For ascertaining whether or not the petitioner is the beneficiary's "actual employer," the regulations provide 
guidance at 20 C.F.R. 5 656.3 as follows: 
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. 
Fixed-term contracts were considered in Matter of Smith, 12 I&N Dec. 772 (Dist. Dir. 1968). In Smith, a 
secretarial shortage resulted in the petitioner providing a continuous supply of temporary secretaries to third- 
party clients. The petitioner in Smith guaranteed a British secretary permanent, full-time employment with its 
firm for 52 weeks a year with "fringe benefits." The district director determined that since the petitioner was 
providing benefits; directly paying the beneficiary's salary; making contributions to the employee's social 
security, workmen's compensation, and unemployment insurance programs; withholding federal and state 
income taxes; and providing paid vacation and group insurance, it was the actual employer of the beneficiary. 
Id. at 773. Additionally, the petitioner in Smith guaranteed the beneficiary a minimum 35-hour work week, 
even if the secretary was not assigned to a third-party client's worksite, and an officer of the petitioning 
company provided sworn testimony that the general secretarial shortage in the United States resulted in the 
fact that the petitioner never failed to provide full-time employment over the past three years. Id. 
Two cases falling under the temporary nonimmigrant H-1B and H-2B visa programs also provide guidance 
concerning the temporary or permanent nature of employment offers. In Matter of Ord, 18 I&N Dec. 285 
(Reg. Comm. 1992), a firm sought to utilize the H-IB nonimmigrant visa program and temporarily outsource 
its aeronautical engineers on a continuing basis with one-year contracts. The regional commissioner 
determined that permanent employment is established when a constant pool of employees are available for 
temporary assignments. Id. at 287. Additionally, Ord held that the petitioning firm was the beneficiary's 
actual employer because it was not an employment agency merely acting as a broker in arranging 
employment between an employer and job seeker, but retained its employees for multiple outsourcing 
projects. Id. at 286. Likewise, Matter ofdrtee, 18 I&N Dec. 366 (Comm. 1982), also addresses the issue of 
an employment offer's temporary or permanent nature. The commissioner held that the nature of the 
petitioner's need for duties to be performed must be assessed in order to ascertain the temporary or permanent 
aspect of an employment offer. In Artee, the petitioner was seeking to utilize the H-2B program to employ 
machinists temporarily to be outsourced to third party clients. The commissioner referenced the occupational 
shortage of machinists in the U.S. economy to determine that the nature of the employment offered was 
permanent and not temporary. Id. at 366. The commissioner stated the following: 
The business of a temporary help service is to meet the temporary needs of its clients. To do 
this they must have a permanent cadre of employees available to refer to their customers for 
the jobs for which there is frequently or generally a demand. By the very nature of this 
arrangement, it is obvious that a temporary help service will maintain on its payroll, more or 
less continuously, the types of skilled employee most in demand. This does not mean that a 
temporary help service can never offer employment of a'temporary nature. If there is no 
Page 5 
demand for a particular type of skill, the temporary help service does not have a continuing 
and permanent need. Thus a temporary help service may be able to demonstrate that in 
addition to its regularly employed workers and permanent staff needs it also hired workers 
for temporary positions. For a temporary help service company, temporary positions would 
include positions requiring skill for which the company has a non-recurring demand or 
infrequent demand. Id. at 367-368. 
The petitioner indicated on Form 1-140 that the position is a full-time, permanent position for a registered 
nurse. However, the contracts between the petitioner, DocComply, and ~r. do not actually specify who 
the beneficiary's actual employer will be. Neither the letter between the petitioner and the beneficiary nor the 
contracts clarify that the benejcialy would be worlung 40 hours per week or state anything about her 
specifically being offered full-time employment and the specific conditions of her employment such as 
reporting hours. The posting notice does not state that the position is full-time or anything about reporting 
hours. The petitioner submitted the petition and Form ETA 9089 in this case and has an agreement to be the 
employer but according to its contract with DocComply, DocComply would hire an unnamed healthcare 
worker full-time for 40 hours per week. If that healthcare worker was the beneficiary, then it is unclear who 
the actual employer would be since it seems both the petitioner and DocComply are acting as actual 
employers since one claims to be and may be paying the beneficiary's salary and the other wo 
w 
in charge 
of hiring, which is an act of an actual employer. Doccomply has the same agreement with Dr. 
 so again, 
it is unclear who the actual employer would be without clarity in the agreements themselves or specification 
with regard to the actual beneficiary2. The letter between the petitioner and the beneficiary does not clarify 
matters either since it is between the petitioner and the beneficiary and merely states her location and 
indicates that the petitioner would pay her wages. However, that obligation is not explained in the agreements 
among the petitioner, Doccomply, and Dr. or by counsel in his brief submitted on certification. 
Therefore, because of these issues concerning the contracts and the fact that the same contracts are signed 
between three different entities without any specific binding document pertaining to the beneficiary, the 
petitioner has not established that it will pay the beneficiary's wages, provide employment benefits, have the 
authority to hire and fire the beneficiary, or at all times control the beneficiary's full-time work assignments 
(if they are full-time). Finally, if the contracts in the record are applicable to the beneficiary's proposed 
employment, Ord would stand for the premise that the petitioner could not be the actual employer since the 
petitioner states in its agreement with DocComply that it is an independent contractor and merely screens and 
places employee candidates with DocComply. Ord held that an actual employer would not be a mere placing 
agent. 
irector determined that the one-year clause in the contracts between the petitioner, DocComply and Dr. 
undermined the notion that the beneficiary would be employed in a permanent, full-time position. 
However, the provision referenced by the director at paragraph 4 is about the general term of a general 
contract not necessarily the length of employment being proposed. The early termination clause found in 
paragraph 5 makes clear that the petitioner receives its placement payment regardless of a healthcare worker 
lasting for one year with DocComply (or DocComply7s placement of a worker with 
h The same 
problem occurs, however, as correctly identified by the director, that the lack of specificity wit respect to the 
beneficiary makes it impossible to determine whether or not the beneficiary is being offered permanent, full- 
time employment and whether or not the petitioner is the actual employer as that is legally defined. 
2 
 For example, an addendum to a contract pertaining to the terms of the beneficiary's employment with 
regards to the arrangements between the petitioner, DocComply and Dr. might illuminate the specific 
responsibilities and obligations and therefore define the legal nature of the employee-employer relationship. 
Thus, the AAO concurs with the director's decision that the preponderance of the evidence in the record of 
proceeding does not show that the petitioner is the beneficiary's actual employer and that the job offer is 
permanent and full-time. 
The second issue to be discussed in this decision is whether or not the petitioner has demonstrated that it has 
the continuing ability to pay the proffered wage beginning on the priority date. The director stated that the 
petitioner filed thirty-one other immigrant petitions and thus its ability to pay is "not clearly established7' 
because of those multiple pending sponsorships and wage obligations. Counsel states on certification that the 
petitioner's net current assets are sufficient to demonstrate the petitioner's continuing ability to pay the 
proffered wage beginning on the priority date. Counsel also states that the beneficiary and the petitioner's 
other hired nurses will generate more profits than the costs associated with their employment and thus 
increase the petitioner's revenues. 
The regulation 8 C.F.R. 9 204.5(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 in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The petitioner must demonstrate the continuing ability to pay the proffered wage beginning on the priority 
date, which for visa petitions filed under section 203(b)(3)(A)(i) of the Act, is the date the Form 1-140 
Immigrant Petition for Alien Worker is filed with CIS. See 8 C.F.R. 
 204.5(d). Here, the priority date is 
January 17, 2006. The proffered wage as stated on the Form ETA 9089 is $24.25 per hour ($50,440 per 
year3). 
Relevant evidence in the record includes the petitioner's audited financial statements for the period ended 
October 31, 2005. The evidence in the record of proceeding indicates that the petitioner is structured as a 
limited liability company. On the petition, the petitioner claimed to have been established in 2005, to have a 
gross annual income of $1,578, and to currently employ one worker. The petitioner claimed to have sufficient 
net current assets to pay the proffered wage and its audited financial statements reflect that it did have 
$1,765,023.63 in net current assets on October 3 1,2005. 
The petitioner must establish,that its job offer to the beneficiary is a realistic one. The petitioner must establish 
that the, job offer was realistic as of the priority date and that the offer remained realistic for each year thereafter, 
until the beneficiary obtains lawful permanent residence. The petitioner's ability to pay the proffered wage is an 
essential element in evaluating whether a job offer is realistic. See Matter of Great Wall, 16 I&N Dec. 142 
(Acting Reg. Comm. 1977). See also 8 C.F.R. 5 204.5(g)(2). In evaluating whether a job offer is realistic, CIS 
requires the petitioner to demonstrate financial resources sufficient to pay the beneficiary's proffered wages, 
although the totality of the circumstances affecting the petitioning business will be considered if the evidence 
warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Cornrn. 1967). 
3 
 Assuming 40 hours per week, although this is not specified. 
In determining the petitioner's ability to pay the proffered wage during a given period, CIS will first examine 
whether the petitioner employed and paid the beneficiary during that period. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, 
the evidence will be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the 
instant case, the petitioner has not established that it employed and paid the beneficiary the full proffered 
wage from the priority date. 
If the petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the 
proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's 
federal income tax return, without consideration of depreciation or other expenses. Reliance on federal 
income tax returns as a basis for determining a petitioner's ability to pay the proffered wage is well 
established by judicial precedent. Elatos Restaurant Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) 
(citing Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng 
Chang v. Thornburgh, 719 F. Supp. 532 (N.D. Texas 1989); K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. 1080 
(S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. Ill. 1982), am, 703 F.2d 571 (7th Cir. 1983). 
Reliance on the petitioner's gross sales and profits and wage expense is misplaced. Showing that the 
petitioner's gross sales and profits exceeded the proffered wage is insufficient. Similarly, showing that the 
petitioner paid wages in excess of the proffered wage is insufficient. 
The petitioner's appellate argument that its depreciation expense should be considered as cash is misplaced. 
In K.C.P. Food Co., Inc. v. Sava, 623 F. Supp. at 1084, the court held that the Immigration and Naturalization 
Service, now CIS, had properly relied on the petitioner's net income figure, as stated on the petitioner's 
corporate income tax returns, rather than the petitioner's gross income. The court specifically rejected the 
argument that the Service should have considered income before expenses were paid rather than net income. 
The court in Chi-Feng Chang further noted: 
Plaintiffs also contend the depreciation amounts on the 1985 and 1986 returns are non-cash 
deductions. Plaintiffs thus request that the court sua sponte add back to net cash the 
depreciation expense charged for 'the year. Plaintiffs cite no legal authority for this 
proposition. This argument has likewise been presented before and rejected. See Elatos, 632 
F. Supp. at 1054. [CIS] and judicial precedent support the use of tax returns and the net 
income Jigures in determining petitioner's ability to pay. Plaintiffs' argument that these 
figures should be revised by the court by adding back depreciation is without support. 
(Emphasis in original.) Chi-Feng at 537. 
According to the audited financial statements in the record of proceeding, the petitioner's net income is 
$23.63 as of October .31, 2005 and does not demonstrate its continuing ability to pay the proffered wage 
beginning on the priority date. 
If the net income the petitioner demonstrates it had available during that period, if any, added to the wages 
paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS 
will review the petitioner's assets. The petitioner's total assets include depreciable assets that the petitioner 
uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of 
business and will not, therefore, become funds available to pay the proffered wage. Further, the petitioner's 
total assets must be balanced by the petitioner's liabilities. Otherwise, they cannot properly be considered in 
the determination of the petitioner's ability to pay the proffered wage. Rather, CIS will consider net current 
assets as an alternative method of demonstrating the ability to pay the proffered wage. Net current assets are 
Page 8 
the difference between the petitioner's current assets and current liabilitie~.~ If the total of a corporation's 
end-of-year net current assets and the wages paid to the beneficiary (if any) are equal to or greater than the 
proffered wage, the petitioner is expected to be able to pay the proffered wage using those net current assets. 
If the petitioner intends to hire 32 immigrant workers, presumably at the same wage offering as the instant 
petition, then it must show that it has $1,614,080 available to it from the date the priority date was established 
for each petition. The petitioner demonstrated with regulatory-prescribed evidence that it had $1,765,023.63 
in net current assets on October 3 1, 2005, which would be greater than the total amount it would be obliged to 
demonstrate that it had available to it. 
However, since the priority date is in 2006, any additional proceedings in this matter would require 
submission of regulatory-prescribed evidence covering as much of that year as possible. Additionally, counsel 
argues that the petitioner receives more revenue that it costs the petitioner to employ the nurses it intends to hire. 
The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Even if CIS chose to accept the petitioner's 
contracts as evidence of projected income, the petitioner has failed to demonstrate an accurate estimation of net 
income for each hour worked. The petitioner has failed to demonstrate that the projected nurse-generated income 
would be sufficient to cover the salary of the nurse and all concomitant expenses of the business, especially if the 
petitioner is responsible for the purchase of worker's compensation, professional liability, health insurance, or 
other benefits, such as transportation and legal fees. Such detail would be required to balance the profit the 
petitioner claims it will receive against the costs it will assume in employing more nurses. 
Another problem with the petitioner demonstrating its continuing ability to pay the proffered wage is that it is 
unclear, as discussed above, that it is the actual employer and entity obligated to pay the proffered wage. If 
or DocComply are the actual employer in this matter, then either of those business entities 
would either Dr.El nee to emonstrate the ability to pay the proffered wage. Because a corporation is a separate and 
distinct legal entity from its owners and shareholders, the .assets of its shareholders or 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, Ztd., 17 I&N Dec. 530 (Comrn. 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. 8 204.5, permits [CIS] to consider the financial resources of individuals or entities who 
have no legal obligation to pay the wage." Additionally, if either Dr. or DocComply are a successor-in- 
interest to the petitioner, they would also need to show their ability rn o pay the proffered wage. This status 
requires documentary evidence that the petitioner has assumed all of the rights, duties, and obligations of the 
predecessor company. In addition, in order to maintain the original priority date, a successor-in-interest must 
demonstrate that the predecessor had the ability to pay the proffered wage. See Matter of Dial Auto Repair 
Shop, Inc., 19 I&N Dec. 481 (Comm. 1986). 
Without sufficient documentation that the petitioner is the actual employer and accurate petitioning entity in 
this case, the petitioner has not demonstrated that it has the continuing ability to pay the proffered wage 
beginning on the priority date. Thus, the AAO also concurs with the director's decision regarding this issue 
but for different reasons than she set forth. 
4 
According to Barron's Dictionary of Accounting Terms 1 17 (3rd ed. 2000), "current assets" consist of items 
having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid 
expenses. "Current liabilities" are obligations payable (in most cases) within one year, such accounts 
payable, short-term notes payable, and accrued expenses (such as taxes and salaries). Id. at 118. 
Beyond the decision of the director, the AAO found~an additional reason why the petition may not be approved. 
The record of proceeding does not contain a posting notice that complies with the regulatory requirements5. 
Under 20 C.F.R. $ 656.10(d)(l), the regulations require the following: 
In applications filed under $9 656.5 (Schedule A), 656.10 (General instructions), 656.15 
(Schedule A occupations), 656.16 (Sheepherders), 656.17 (Basic Process), 656.18 (College and 
University Teachers), and 656.21 (Supervised Recruitment), the employer must gve notice of 
the filing of the Application for Permanent Employment Certzjication and be able to document 
that notice was provided, if requested by the Certifying Officer, as follows: 
(0 
 To the bargaining representative(s) (if any) of the employer's employees in the 
occupational classification for which certification of the job opportunity is sought 
in the employer's location(s) in the area of intended employment. Documentation 
may consist of a copy of the letter and a copy of the Application for Permanent 
Employment CertiJication form that was sent to the bargaining representative. 
(ii) 
 If there is no such bargaining representative, by posted notice to the employer's 
employees at the facility or location of the employment. The notice must be posted 
for at least 10 consecutive business days. The notice must be clearly visible and 
unobstructed while posted and must be posted in conspicuous places where the 
employer's U.S. workers can readily read the posted notice on their way to or fiom 
their place of employment. 'Appropriate locations for posting notices of the job 
opportunity include locations in the immediate vicinity of the wage and hour 
notices required by 29 CFR 516.4 or occupational safety and health notices 
required by 29 CFR 1903.2(a). . . . 
(Emphasis in italics in orignal). 
Additionally, 20 C.F.R. '$ 656.10(d)(3) requires the following: 
The notice of the filing of an Application for Permanent Employment Certzjication must: 
(i) 
 State the notice is being provided as a result of the filing of an application for permanent 
alien labor certification for the relevant job opportunity; 
(ii) 
 State any person may provide documentary evidence bearing on the application to the 
Certifying Officer of the Department of Labor; 
(iii) 
 Provide the address of the appropriate Certifying Officer; and 
(iv) 
 Be provided between 30 and 180 days before filing the application. 
With the initial petition, the petitioner submitted a posting notice that meets the requirements of 20 C.F.R. 
$8 656.10(d)(3)(i), (ii), and (v), and (d)(4). The petitioner's posting notice, however, in violation of 20 C.F.R. 
5 
 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, 299 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 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
Page 10 
3 656.10(d)(3)(iii), failed to provide the address of the appropriate Certifying Officer. The petitioner's posting 
notice directs any person to provide documentary evidence to the DOL security workforce agency (SWA) 
location in Atlanta, Georgia. The location of the proffered position, according to the Form 1-140, Part 6, Item 4, 
and Form ETA 9089, items H. 1 and H.2, and documentation as described in detail above is at Dr. 
Casa Grande, Anzona, which is also listed as the work location on the posting notice itself. 
notice is a line directing applicants to send their resumes to Adam International, Inc. at DocComply's address 
in New Jersey. Even if the petitioner were confused about the address of the certifying officer with 
jurisdiction over this matter, DOL's regional office with jurisdiction over New Jersey is in New York not 
Georgia. So whether the petitioner was going by Arizona or New Jersey,. DOL's office in Georgia has no 
jurisdiction over a worksite or employer in Arizona or New Jersey. 
The purpose of requiring the employer to post notice of the job opportunity is to provide U.S. workers with a 
meaningful opportunity to compete for the job and to assure that the wages and worlang conditions of United 
States workers similarly employed will not be adversely affected by the employment of aliens in Schedule A 
oc~u~ations.~ Because of the defect in the posting notice concqing applicants' potential notification and 
grievance procedures, the petition could not be approved for this reason as well. 
Thus, the AAO affirms the director's decision that the petitioner has failed to demonstrate that it will be the 
beneficiary's actual employer, offering permanent, full-time employment, and has the continuing ability to 
pay the proffered wage beginning on the priority date. Additionally, the AAO determines that the petitioner 
failed to submit a regulatory-prescribed posting notice that conforms to the regulatory requirements for 
~chedde.~, Group I nurse petitions. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has 
not been met. 
ORDER: 
 The director's decision on July 27,2006 is affirmed. The petition remains denied. 
See the Immigration Act of 1990, Pub.L. No. 101-649, 122(b)(l), 1990 Stat. 358 (1990); see also Labor 
Certification Process for the Permanent Employment of Aliens in the United States and Implementation of the 
Immigration Act of 1990, 56 Fed. Reg. 32,244 (July 15, 1991).