dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 30, 2024 In Re: 30594258 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a healthcare staffing company, seeks to permanently employ the Beneficiary as a 
registered nurse. The company requests her classification under the employment-based, third­
preference (EB-3) immigrant visa category as a "skilled worker." See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). U.S. businesses may sponsor 
noncitizens to obtain U.S. permanent residence under this category to work in jobs requiring at least 
two years of training or experience. Id. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the Beneficiary's qualifying experience for the offered job. On appeal, 
the Petitioner contends that, under longtime immigration service policy, the Beneficiary need not meet 
the exact job requirements listed on the accompanying "Schedule A" labor certification application. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that the company must, and did not, establish the Beneficiary's possession of the 
minimum job requirements stated on the Schedule A labor certification application. We will therefore 
dismiss the appeal. 
I. LAW 
Immigration as a skilled worker typically follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer must obtain certification 
from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. 
§ 1182(a)(5)(A)(i). Second, if DOL approves a position for a foreign worker, an employer must 
submit the certified labor application with an immigrant visa petition to U.S. Citizenship and 
Immigration Services (USCIS). Section 204(a)(l)(F) of the Act, 8 U.S.C. § 1154(a)(l)(F). Finally, if 
USCIS grants a petition, the noncitizen beneficiary may apply abroad for an immigrant visa or, if 
eligible, adjustment of status in the United States. See section 245(a) of the Act, 8 U.S.C. § 1255(a). 
DOL, however, has predetermined that the United States lacks sufficient "professional nurses" and 
that noncitizens' employment in these Schedule A jobs would not harm the wages or working 
conditions of U.S. employees in similar positions. 20 C.F.R. § 656.5. Thus, organizations seeking to 
employ noncitizen registered nurses need not file individual labor certification applications with DOL 
to test the U.S. labor market for qualified workers. Rather, DOL authorizes USCIS to adjudicate 
Schedule A labor certification applications in petition proceedings. 20 C.F.R. § 656.15(a). Thus, in 
this matter, USCIS mies not only on the immigrant visa petition, but also on its accompanying labor 
certification application. See 20 C.F.R. § 656.15( e) ( describing USCIS' determinations on Schedule 
A labor certification applications as "conclusive and final"). 
II. ANALYSIS 
The record shows that, in December 2021, the Beneficiary - a Nigerian native and citizen - earned a 
U.S. bachelor of science degree in nursing. In December 2022, the Petitioner filed this petition, 
offering her the position of registered nurse at an annual proffered wage of $49,192 and requesting the 
job's designation under Schedule A as a professional nurse. The company says that it intends to assign 
the Beneficiary to work at a client hospital in Kansas. 
The Petitioner's Schedule A labor certification application states that the offered job requires at least 
a two-year nursing diploma and one year of experience in the job offered. The application indicates 
that the company will not accept experience in an alternate occupation. The application also lists other 
job requirements, including: "[l]icensing or registration;" passage of the National Council Licensure 
Examination for Registered Nurses (NCLEX-RN); and successful completion of a "criminal 
background check" and "drng screen." 
The Petitioner submitted a copy of the Beneficiary's U.S. nursing degree and letters indicating that, 
by the petition's filing, she worked about two months as an "advanced nurse extern" at a U.S. hospital 
in Alabama and about IO months for the Petitioner in the offered job. 
A. The Schedule A Labor Certification Application 
A petition for a skilled worker must include an individual labor certification from DOL or an 
application for Schedule A designation. 8 C.F.R. § 204.5(1)(3)(i). 1 When adjudicating Schedule A 
labor certification applications, also called "blanket" labor certification applications, USCIS applies 
DOL regulations. 20 C.F.R. § 656.15(a). 
A Schedule A labor certification employer must offer "[p ]ermanent, full-time work" to a noncitizen 
as a professional nurse. 20 C.F.R. §§ 656.3, 656.5(a)(3)(i), (ii). 2 An employer must also submit a 
labor certification application form, a DOL determination of the offered job's prevailing wage, and 
1 The regulation also indicates acceptance of proof "that the alien qualifies for one of the shortage occupations in the 
[DOL]'s Labor Market Information Pilot Program." 8 C.F.R. § 204.5(1)(3)(i). DOL published a proposed rule for the pilot 
program. See 58 Fed. Reg. 26077 (Apr. 30, 1993). But the agency never implemented the program. Thus, the portion of 
the regulation referencing the pilot program does not apply. 
2 Schedule A also covers "physical therapists" and certain noncitizens of "exceptional ability" in "science or art," or 
performing arts. 20 C.F.R. § 656.5(a)(3)(i), (b). This matter does not involve a physical therapist occupation or other 
qualifying work under Schedule A 
2 
evidence that the employer notified a bargaining representative, if applicable, or its employees of the 
application's filing. 20 C.F .R. § 656.15(b) (referencing 20 C.F .R. § § 656.10( d), 656.40, 656.41 ). 
The term "professional nurse" means: 
a person who applies the art and science of nursing which reflects comprehension of 
principles derived from the physical, biological and behavioral sciences. Professional 
nursing generally includes making clinical judgments involving the observation, care 
and counsel of persons requiring nursing care; administering of medicines and 
treatments prescribed by the physician or dentist; and participation in the activities for 
the promotion of health and prevention of illness in others. 
20 C.F.R. § 656.5(a)(3)(ii). 
An employer seeking to employ a nonc1t1zen professional nurse must further document the 
noncitizen's receipt of a certificate from the Commission on Graduates of Foreign Nursing Schools, a 
license to practice nursing in the U.S. state of intended employment, or passage of the NCLEX-RN. 
20 C.F.R. § 656.15(c)(2). 
The Petitioner demonstrated compliance with the Schedule A labor certification regulations. The 
company submitted a labor certification application form stating its offer of permanent, full-time work 
to the Beneficiary as a registered nurse. The Petitioner also submitted a DOL prevailing wage 
determination (PWD) and a copy of a notice of the application's filing to employees at the proposed 
worksite. 
The record shows that, consistent with a DOL regulation, the Petitioner's PWD remained valid for 
between 90 days and one year and that the company filed its labor certification application during that 
period. See 20 C.F.R. § 656.40(c). As the Petitioner attested on the application form, the company 
promised to pay the Beneficiary at least the job's prevailing wage of $49,192 a year. 
The Petitioner's posted notice to employees also meets the regulations at 20 C.F.R. § 656. l 0( d). The 
notice copy indicates the notice's posting for at least 10 consecutive business days in a conspicuous 
place at the proposed worksite in Kansas. See 20 C.F.R. § 656.10( d)(l )(ii). The notice also describes 
the offered job and its rate of pay, states that the application's filing spurred the posting, indicates that 
anyone may provide documentary evidence bearing on the application, and lists the appropriate 
address of the DOL certifying officer in Washington, D.C. See 20 C.F.R. § 656.10(d)(3)(i), (ii), (iii), 
(6). The record also indicates the notice's posting between 30 and 180 days before the application's 
filing. See 20 C.F.R. § 656.10(d)(3)(iv). 
The record further demonstrates that the offered job of registered nurse qualifies as a Schedule A 
occupation. The company described the job's duties as follows: "Assess patient health problems and 
needs, develop, and implement nursing care plans, and maintain medical records. Administer nursing 
care to ill, injured, convalescent, or disabled patients. May advise patients on health maintenance and 
disease prevention or provide case management." Consistent with DOL's definition of the term 
"professional nurse" at 20 C.F.R. § 656.5(a)(3)(ii), the offered job's duties indicate that the position 
involves making clinical judgments, providing care and counsel to patients, administering medicines 
3 
and treatments, and promoting health and disease prevention. The offered job therefore qualifies for 
Schedule A designation as a professional nurse. 
The Petitioner demonstrated its compliance with DOL's Schedule A labor certification application 
regulations. However, the Petitioner must also meet the skilled worker requirements. 
B. Qualifications for the Offered Job 
Meeting Schedule A labor certification requirements does not necessarily mean that the Beneficiary 
qualifies for the requested immigrant visa category. See generally 6 USCIS Policy Manual E.(7)(A), 
www.uscis.gov/policy-manual
. The company must also meet USCIS regulations for skilled worker 
petitions. See 8 C.F.R. § 204.5. The Petitioner must demonstrate: 
• Its ability to pay the offered job's proffered wage from the petition's filing date until the 
Beneficiary obtains permanent residence, see 8 C.F.R. § 204.5(g)(2); 
• That the Beneficiary and the offered job qualify for the skilled worker classification, 8 C.F.R. 
§ 204.5(1)(3)(ii)(B); and 
• That the Beneficiary meets the offered job's requirements listed on the blanket labor 
certification application, see id. 
6 USCIS Policy Manual E.(7)(B) n.5. 
The Director noted that the Beneficiary's educational qualifications (a U.S. bachelor's degree) exceed 
the offered job's educational requirements (two years of post-secondary studies). But the Director 
found that the Petitioner did not demonstrate the Beneficiary's qualifying experience for the offered 
job. Specifically, the Director found that, at the time of the petition's filing, the company did not 
demonstrate the Beneficiary's possession of at least one year of experience in the job offered. See 
section 203(b)(3)(A)(i) of the Act (describing skilled workers as "[q]ualified immigrants who are 
capable, at the time ofpetitioning for the classification under this paragraph, of performing skilled 
labor (requiring at least 2 years training or experience)") (emphasis added); see also 8 C.F.R. 
§ 103.2(b )(1) (requiring a petitioner to establish eligibility "at the time of filing the benefit request"). 
The Petitioner submitted a letter stating the Beneficiary's work at the Alabamian hospital as an 
advanced nurse extern from June 14, 2021 to August 6, 2021, or 54 days. The Petitioner also provided 
a letter stating that it employed her in the offered job from February 14, 2022 until the petition's filing 
on December 30, 2022, or 320 days. Thus, the letters appear to establish that, by the petition's filing, 
the Beneficiary gained nursing employment experience totaling 374 days, more than a 365-day year. 
The Director, however, found that the hospital's letter did not demonstrate the Beneficiary's qualifying 
experience there in the offered job of registered nurse. The extern experience letter states that the 
Beneficiary worked at the hospital "[u ]nder the direction of a Registered Nurse. . . . Duties and 
responsibilities are limited to those that fall under the scope of practice of unlicensed health care 
providers acting under the direction of a licensed nurse." Also, contrary to the Beneficiary's attestation 
on the labor certification application, the letter suggests that the hospital did not employ her on a full-
time basis as an extern. The letter states that she worked "in a as needed status." 
4 
In finding insufficient evidence that the Beneficiary's hospital work as an extern constitutes qualifying 
experience in the job offered, the Director looked to the Petitioner's labor certification application 
form. The form states that the offered job requires experience "in the job offered." On a labor 
certification application form, the phrase "in the job offered" means experience performing the job 
duties listed on the labor certification application. See, e.g., Matter of Symbioun Techs., Inc., 2010-
PER-01422, *3 (BALCA Oct. 24, 2011). 
On appeal and in its PWD request, the Petitioner indicates that the offered job requires one year of 
experience not "in the job offered," but in "nursing." The Petitioner, however, has not explained why 
its labor certification application specifies experience in the job offered while the company otherwise 
states the position's need for experience only in nursing. See Matter ofHo, 19 I&N Dec. 582, 591 
(BIA 1988) (requiring a petitioner to resolve inconsistencies of record with independent, objective 
evidence pointing to where the truth lies). 
Also on appeal, the Petitioner states that the Beneficiary's extern work was "part of her formal nursing 
educational program." Thus, for labor certification purposes, the record demonstrates that her 
education included her extern work. Therefore, the Petitioner has not demonstrated that the work 
qualifies as separate employment experience. See Matter ofAvon Prods., Inc., 88-INA-348, 1989 WL 
250441, *4 n.4 (BALCA July 27, 1989) (questioning whether a noncitizen's internship as part of a 
master's degree program "should even be counted as work experience and not simply as part of her 
education"). 
For the foregoing reasons, the Petitioner has not established that the offered job requires experience 
in nursing, as opposed to in the job offered. Thus, we agree with the Director that the offered position 
requires experience in the job offered and that the Petitioner did not demonstrate that the Beneficiary's 
extern work constitutes such experience. 
The Director also found that the Petitioner could not rely on experience that the Beneficiary gained 
with the company. A labor certification employer cannot use experience that a noncitizen gained with 
it as qualifying experience unless they gained the experience in a substantially different job than the 
offered one or the employer can demonstrate the impracticality of training a U.S. worker for the offered 
job. See 20 C.F.R. § 656.17(i)(3). The Petitioner does not try to establish that the Beneficiary gained 
her experience with it in a substantially different job or that it would be impractical for the company 
to train a U.S. worker for the job. Rather, the company argues that, because its petition involves a 
Schedule A labor certification application, the regulation at 20 C.F.R. § 656.17(i)(3) does not apply to 
this matter. "Application for certification of employment as a professional nurse may be made only 
under this § 656.15( c) and not under § 656.17." 20 C.F.R. § 656. l 5(c)(2). The Petitioner therefore 
contends that it can rely on the experience the Beneficiary gained with it. 
But we need not decide whether the Beneficiary's experience with the Petitioner counts as qualifying 
experience. Even if it does, the Beneficiary would lack the requisite one year of experience, as the 
company employed her only for about 10 months, from February 2022 until the petition's filing in 
December 2022. The record therefore supports the Director's finding of insufficient evidence of the 
Beneficiary's qualifying experience for the offered job. 
5 
On appeal, the Petitioner argues that the Director misapplied 8 C.F.R. § 204.5(1)(3)(ii)(B) by requiring 
the company to demonstrate the Beneficiary's possession of the offered job's minimum experience 
requirements as stated on the labor certification application. The regulation states: 
If the petition is for a skilled worker, the petition must be accompanied by evidence 
that the [ noncitizen] meets the educational, training or experience, and any other 
requirements of the individual labor certification [or] meets the requirements for 
Schedule A designation ... The minimum requirements for this classification are at 
least two years of training or experience. 
8 C.F.R. § 204.5(1)(3)(ii)(B). The Petitioner did not submit an individual labor certification certified 
by DOL. Rather, it applied for Schedule A designation by submitting an uncertified individual labor 
certification. Thus, the company contends that, under the regulation, it need only show that the 
Beneficiary "meets the requirements for Schedule A designation." See 8 C.F.R. § 204.5(1)(3)(ii)(B). 
In an attempt to support its regulatory interpretation, the Petitioner quotes former USCIS policy. The 
company notes that the Agency previously indicated that Schedule A petitioners need not demonstrate 
that their beneficiaries meet the exact job requirements listed on their labor certification applications. 
The prior guidance states: 
The "minimum requirements" in Schedule A cases as listed [in labor certification 
applications] may not be a trne reflection of the actual education, training, and 
experience needed to perform the job. In many cases a Schedule A petitioner will give 
the particular [ noncitizen] 's qualifications rather than actual minimum requirements, 
and, because the labor certification form is sent directly to USCIS, this will not be 
reviewed first by DOL and corrected through DOL involvement. This point is 
important because many classifications require that the petitioner establish that the 
position requires a person of a particular caliber. As long as the duties shown on the 
labor certification application are appropriate for a position that requires licensure as a 
registered nurse, . . . the petition should not be denied and a request for evidence need 
not be sent to confirm the precise minimum job requirements. 
Adjudicator's Field Manual Chapter 22.2(b )( 4)(C)(ii), https://www.uscis.gov/ilink/doc View/ 
AFM/HTML/ AFM/0-0-0-1.html. ( emphasis in original). 
The USCIS Policy Manual, however, supersedes the Agency's prior guidance. The manual states: 
"The USCIS Policy Manual is the agency's centralized online repository for USCIS' immigrant 
policies. The Policy Manual is replacing the Adjudicator's Field Manual (AFM), the USCIS 
Immigration Policy Memoranda site, and other USCIS policy repositories." See USCIS Policy 
Manual, "About the Policy Manual," www.uscis.gov/policy-manual. As the Director found, the 
policy manual excludes the former guidance quoted by the Petitioner. Rather, as previously indicated, 
the manual indicates that adjudicators should require Schedule A beneficiaries to meet job 
requirements listed on accompanying labor certification applications. The manual states: 
The employer must also submit all other documentation required to show eligibility for 
the employment-based immigrant visa classification sought, such as evidence of its 
6 
ability to pay, that the beneficiary and position qualify for the classification sought, and 
that the beneficiary meets the job requirements ofthe blanket labor certification. 
6 USCIS Policy Manual E.(7)(B) n.5 ( emphasis added). Additionally, the language quoted above from 
the Adjudicator's Field Manual spoke to a job's minimum qualifications, not whether a beneficiary 
met them. 
The Petitioner acknowledges the policy manual's replacement of prior USCIS guidance. But the 
company argues that "the purpose of the Schedule A application process remains the same: that DOL 
has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available 
pursuant to regulation." In light of the current guidance in the USCIS Policy Manual, however, the 
Petitioner's argument does not persuade us. 
Also, the company's regulatory interpretation of 8 C.F.R. § 204.5(1)(3)(ii)(B) would conflict with the 
Act. Under the Petitioner's reading, the regulation would prevent USCIS from determining whether 
the Beneficiary and the offered job qualify for skilled worker classification. See section 
203(b )(3)(A)(i) of the Act ( describing skilled workers as "capable ... of performing skilled labor 
(requiring at least 2 years training or experience"). Instead, we read 8 C.F.R. § 204.5(1)(3)(ii)(B), 
consistent with the Act, to require the Petitioner's demonstration of the job's eligibility for skilled­
worker classification and the Beneficiary's qualifications for the offered job as listed on the labor 
certification application. 
The Petitioner also argues that the Beneficiary's amount of post-secondary education demonstrates 
her qualifications as a skilled worker. The company notes that the regulatory definition of "skilled 
worker" states that "[r]elevant post-secondary education may be considered as training for the 
purposes of this provision." 8 C.F.R. § 204.5(1)(2). As previously indicated, the Beneficiary 
completed two more years of university nursing studies than the offered job requires. The Petitioner 
therefore states that USCIS should consider her two additional years of relevant post-secondary 
education as two years of training. 3 
We recognize that a skilled worker petition can use a beneficiary's relevant post-secondary education 
as training. But a petitioner still must demonstrate that a beneficiary meets the offered job's minimum 
requirements as listed on a Schedule A labor certification application. Even if we considered the 
Beneficiary's additional education as training, she would still not satisfy the offered job's minimum 
experience requirements as listed on the labor certification application. 
The Petitioner further argues that we should consider experience the Beneficiary gained after the 
petition's filing. The provisions of 20 C.F.R. § 656.17 do not govern Schedule A proceedings. See, 
e.g., 20 C.F.R. § 656.15( c )(2). Under that section, a noncitizen who already works for a labor 
certification employer generally must have been qualified for the offered job "at the time of hiring by 
the employer." 20 C.F.R. § 656. l 7(i)(3). The Petitioner therefore contends that 20 C.F.R. 
3 Relying on a regulation governing H-IB nonimmigrant visas, the Petitioner also argues that the Beneficiary's two 
additional years of education should count as six years of training. Under 8 C.F .R. § 214.2(h)( 4)(iii)(D)(5), three years of 
training or experience constitute one year of college or university study for purposes of determining equivalencies to U.S. 
bachelor's degrees. The cited regulation, however, applies only to H-lB visa petitions. We therefore decline to apply it 
in these immigrant visa petition proceedings. 
7 
§ 656. l 7(i)(3) does not apply to its Schedule A labor certification application and that the company 
need not demonstrate the Beneficiary's eligibility for the offered job at the time of the petition's filing 
or earlier. 
But, as previously indicated, the Act and a USCIS regulation require the Petitioner to demonstrate the 
Beneficiary's qualifications for the offered job at the time of the petition's filing. See section 
203(b)(3)(A)(i) of the Act; 8 C.F.R. § 103.2(b)(l). Thus, the Beneficiary clearly had to qualify for the 
offered job by the petition's filing. 
Finally, the Petitioner asks us to treat the one-year experience requirement on the labor certification 
application as a "scrivener's error." The company submitted an amended application form, deleting 
the one-year experience requirement. 
USCIS may excuse typographical errors that are clearly inadvertent. See Matter ofZaidan, 19 I&N 
Dec. 297,298 n.1 (BIA 1985) (excusing a regulation's incorrect reference to another provision). The 
Petitioner, however, has not established that it inadvertently listed the one-year experience 
requirement on its labor certification application. The record indicates that, about nine months before 
the application's filing, the company submitted its PWD request, which also states that the offered job 
requires one year of experience. 4 A preponderance of the evidence therefore indicates that the offered 
job truly requires one year of experience. We therefore decline to excuse the claimed scrivener's error. 
III. CONCLUSION 
The Petitioner has not demonstrated the Beneficiary's qualifying experience for the offered job. We 
will therefore affirm the petition's denial. 
ORDER: The appeal is dismissed. 
4 As previously indicated, unlike the Petitioner's labor certification application, the company's PWD request requires one 
year of experience in "nursing," rather than "in the job offered." 
8