dismissed EB-3 Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-V-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 21,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a hospital, seeks to employ the Beneficiary as a registered nurse. It requests her 
classification as a skilled worker under the third-preference, immigrant category. See Immigration 
and Nationality Act section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based 
category allows a U.S. business to sponsor a foreign national with at least two years of training or 
experience for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
support approval of the accompanying application for Schedule A designation. 
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On appeal, we 
affirmed the Director's decision, agreeing that the Petitioner did not obtain a prevailing wage 
determination, or post notice of the application's filing, consistent with DOL regulations. 
On motion to reconsider, the Petitioner asserts that its prevailing wage determination meets 
regulatory requirements and that it properly posted notice of its filing of the Schedule A application. 
Upon review, we will deny the motion to reconsider. 
I. LAW 
A motion to reconsider must establish that, based on the record at that time, our decision incorrectly 
applied law or policy. 8 C.F.R. § 1 03.5(a)(3). A petitioner must support a motion to reconsider with 
a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USCIS 
or Department of Homeland Security policy. We may grant a motion that satisfies these 
requirements and demonstrates eligibility for the requested immigration benefit. 
1 Schedule A contains two occupations- physical therapist and professional nurse - that the U.S. Department of Labor 
(DOL) does not require prospective employers of foreign nationals to advertise in U.S. labor markets. See 20 C.F.R. 
§ 656.5. The DOL has already determined that the United States lacks sufficient able, willing, qualified, and available 
workers for these occupations and that the employment of foreign nationals will not harm the wages and working 
conditions of U.S. workers in similar occupations. !d. The DOL has therefore authorized U.S. Citizenship and 
Immigration Services (USCIS) to adjudicate Schedule A applications in immigrant visa proceedings. See 20 C.F.R. 
§ 656.15. 
Matter of N- V-H-
II. THE PREVAILING WAGE DETERMINATION 
An application for Schedule A designation must include a prevailing wage determination obtained 
from a state workforce agency (SWA) pursuant to DOL r~gulations. 20 C.F.R. § 656.15(b)(1). An 
employer must file its Schedule A application within the validity period of a prevailing wage 
determination. 20 C.F.R. § 656.40(c). 
In this case, the Petitioner filed the petition and Schedule A application on May 1, 2006, without a 
prevailing wage determination from a SW A. On appeal, however, the Petitioner submitted a wage 
determination, valid from July 20, 2007, to June 30, 2008. 
Contrary to 20 C.F.R. § 656.40(c), however, the Petitioner did not file its Schedule A application 
within the validity period of the prevailing wage determination. Rather, it filed the application more 
than a year before the wage determination became valid. The Petitioner therefore did not comply 
with DOL regulations in obtaining its prevailing wage determination. 
On motion, the Petitioner notes that, consistent with 20 C.F.R. § 656.40(c), its prevailing wage 
determination remained valid for more than 90 days and less than a year. As indicated above, 
however, the regulation also requires an employer to file its Schedule A application within the 
validity period of the wage determination. Contrary to DOL regulations, the Petitioner did not tile 
its Schedule A application during the validity period of the wage determination and therefore did not 
establish its eligibility for the benefit sought. We will therefore affirm our appellate decision. 
III. THE NOTICE OF FILING 
An application for Schedule A designation must also include evidence that, consistent with DOL 
regulations, an employer provided notice of the application's filing to its employees or their 
bargaining representative. 20 C.F.R § 656.15(b)(2). If no bargaining representative exists, an 
employer must post a filing notice at the worksite for at least 10 consecutive business days. 
20 C.F.R. § 656.10(d)(l)(ii). "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 for the 
recruitment of similar positions in the employer's organization." !d. 
Here, the petition included a filing notice indicating its posting at the worksite for more than 10 
consecutive business days. Contrary to instructions in the Director's request for evidence, however, 
the Petitioner did not indicate whether it published the notice in all, applicable in-house media 
consistent with DOL regulations. 
On appeal, the Petitioner submitted another filing notice and a letter from its human resources 
director. Neither of these documents, however, indicates the Petitioner's publishing of the tiling 
notice in all applicable, in-house media. Also, contrary to DOL regulations, the Petitioner posted the 
second notice after its filing of the Schedule A application. See 20 C.F.R. § 656.10(d)(3)(iv) 
(requiring posting of a filing notice between 30 and 180 days before an application's filing). 
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Matter of N- V-H-
We also note on reconsideration that, contrary to DOL regulations, both of the Petitioner's filing 
notices state wage rates below the proffered wage of $28.59 an hour, and below the prevailing wage 
of $23.65 an hour. See 20 C.F.R. § 656.1 O(d)(4) (requiring a filing notice to "state the rate of pay 
(which must equal or exceed the prevailing wage rate entered by the SWA on the prevailing wage 
request form)"); see also 20 C.F.R. §§ 656.17(±)(5), (7) (barring posting notices and print 
advertisements from containing wage rates lower than the prevailing wage, or less favorable than 
those offered to the foreign national). 
For the foregoing reasons, the Petitioner's filing notice of the Schedule A application did not comply 
with DOL regulations. For this additional reason, we will affirm our appellate decision. 
IV. OTHER ISSUES 
On reconsideration, we also note the petition's following deficiencies. 
A. The Petitioner's Ability to Pay the Proffered Wage 
A petitioner must demonstrate its continuing ability to pay a proffered wage, from a petition's 
priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Evidence of ability to pay must include copies of annual reports, federal income tax returns, or 
audited financial statements. !d. 
Here, as previously indicated, the Schedule A application states the proffered wage of the oflered 
position of registered nurse as $28.59 an hour. The petition's priority date is May 1, 2006, the date 
of the petition's filing. See 8 C.F.R. § 204.5(d) (explaining how to determine a petition's priority 
date). 
Contrary to 8 C.F.R. § 204.5(g)(2), the Petitioner did not submit required evidence of its ability to 
pay the proffered wage from the petition's priority date onward. In addition, USCIS records indicate 
the Petitioner's filing of at least 12 petitions for other beneficiaries that remained pending or 
approved after this petition's priority date. 2 
A petitioner must demonstrate its ability to pay the proffered wage of each petition it files until a 
beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). The Petitioner here must 
therefore demonstrate its ability to pay the combined proffered wages of this and the other petitions 
that remained pending or approved after its priority date. See Patel v. Johnson, 2 F. Supp. 3d 108, 
124 (D. Mass. 2014) (affirming the revocation of a petition's approval where, as of the filing's grant, 
the petitioner did not demonstrate its ability to pay the combined proffered wages of multiple, 
pending petitions). 
2 
USCIS records identify the other petitions by the following receipt numbers: 
and 
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-Matter of N- V-H-
In any future filings in this matter, the Petitioner must submit regulatory required evidence 
demonstrating its ability to pay the combined proffered wages of the applicable beneficiaries from 
this petition's priority date onward. 
B. The Beneficiary's Qualifying Experience 
A petitioner must demonstrate a beneficiary's possession, by a petition's pnonty date, of the 
minimum job requirements stated on an accompanying labor application. Matter of Wing's Tea 
House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
Here, the Schedule A application states the minimum job requirements of the offered position of 
registered nurse as including at least one year of experience in the job offered. On the application, 
the Beneficiary attested that she gained experience in the job offered with the Petitioner. She did not 
state any other qualifying experience. In a letter, the Petitioner's human resources director stated 
that the hospital began employing the Beneficiary as a registered nurse on October 4, 2005. 
As of the petition's priority date of May 1, 2006, the record does not establish the Beneficiary's 
possession of at least one year of experience in the job offered. As of that date, the record indicates 
the Petitioner's employment of the Beneficiary for less than one year. The record lacks evidence of 
her possession of any other qualifying experience. In any future filings in this matter, the Petitioner 
must establish the Beneficiary's possession of at least one year of experience in the job offered by 
the petition's priority date. The Petitioner must also explain the omission of any other qualifying 
experience from the labor application. 
C. The Validity of the Schedule A Application 
A business may use another employer's labor certification only if it establishes itself as that 
employer's successor in interest. See Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 
(Comm'r 1986) (requiring a successor to demonstrate its acquisition of the rights and obligations 
needed to continue operation of an employer's business). 
Here, online public records indicate that, while this motion was pending, a company acquired the 
Petitioner. See at http://www. (last visited Aug. 24, 
2017). The record does not establish whether the Petitioner's new owner or the Petitioner intends to 
employ the Beneficiary in the offered position. If the Petitioner's new owner will employ the 
Beneficiary, the record does not establish it as the Petitioner's successor in interest. 
In any future filings in this matter, the Petitioner must indicate which entity intends to employ the 
Beneficiary in the offered position. If the Petitioner's new owner will employ her, it must establish 
itself as the Petitioner's successor. 
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Matter of N- V-H-
V. CONCLUSION 
The record does not support approval of the petition's accompanying application for Schedule A 
designation. Thus, the record does not establish that our dismissal of the Petitioner's appeal 
incorrectly applied law or policy. We will therefore affirm our appellate decision. 
ORDER: The motion to reconsider is denied. 
Cite as Matter o.fN-V-H-, ID# 746375 (AAO Sept. 21, 2017) 
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