dismissed EB-3 Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
In Re: 12483784 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 5, 2021 
The Petitioner , a staffing agency, seeks to employ the Beneficiary as a registered nurse. It requests 
her classification as a skilled worker under the third-preference immigrant category . Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S .C. § 1153(b)(3)(A)(i) . This 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 
establish that ( a) the Petitioner provided proper notice of the filing of a labor certification; and (b) the 
job opportunity is bona fide . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED PETITIONS FOR SCHEDULE A OCCUPATIONS 
A Schedule A occupation is an occupation codified at 20 C.F.R. § 656.5(a) for which the U.S. 
Department of Labor (DOL) has determined that there are not sufficient U.S. workers who are able, 
willing, qualified and available and that the wages and working conditions of similarly employed U.S . 
workers will not be adversely affected by the employment of foreign nationals in such occupations. 
The current list of Schedule A occupations includes professional nurses and physical therapists . Id. 
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 a duplicate 
uncertified labor certification. See 8 C.F.R. § 204.5(a)(2); see also 20 C.F.R. § 656.15. 1 If USCIS 
approves the petition, the foreign national applies 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. 
1 The priority date of the petition is January 2, 2020, the date the completed , signed petition was prop erly filed with USCIS . 
See 8 C.F.R. § 204.5(d). 
II. NOTICE OF FILING 
The Director concluded, in part, that the record did not establish that the Petitioner provided proper 
notice of the filing of a labor certification (Notice). Petitions for Schedule A occupations must contain 
evidence establishing that the petitioner provided its U.S. workers with Notice prescribed by 20 C.F.R. 
§ 656.10( d). A petitioner must provide Notice to any bargaining representative for the occupation, or, 
if there is no bargaining representative, by posted Notice to its employees at the location of the 
intended employment. See 20 C.F.R. § 656.10( d)(l ). 2 In cases where there is no bargaining 
representative, the Notice must be posted for at least 10 consecutive business days, and it must be 
clearly visible and unobstructed while posted. 20 C.F.R. § 656.10( d)(l )(ii). The Notice must be 
posted in a conspicuous place where the petitioner's U.S. workers can readily read it on their way to 
or from their place of employment. Id. In addition, the Notice must be published "in any and all in­
house media, whether electronic or printed, in accordance with the normal procedures used for the 
recruitment of similar positions in the employer's organization." Id. The satisfaction of the Notice 
requirement may be documented by "providing a copy of the posted notice and stating where it was 
posted, and by providing copies of all the in-house media" used to distribute the Notice. Id. 
The DOL has stated: 
If the employer knows where the Schedule A employee will be placed, the employer 
must post the notice at that work-site(s) where the employee will perform the work and 
publish the notice internally using in-house media--whether electronic or print--in 
accordance with the normal internal procedures used by the employer to notify its 
employees of employment opportunities in the occupation in question. The prevailing 
wage indicated in the notice will be the wage applicable to the area of intended 
employment where the worksite 1s located. 
If the employer does not know where the Schedule A employee will be placed, the 
employer must post the notice at that work-site(s) of all of its current clients, and 
publish the notice of filing internally using electronic and print media according to the 
normal internal procedures used by the employer to notify its employees of 
employment opportunities in the occupation in question. The prevailing wage will be 
derived from the area of the staffing agencies' headquarters. 
U.S. DOL, OFLC Frequently Asked Questions and Answers, Notice of Filing, Question 12, 
https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!l 76 (last visited Feb. 1, 2021); see also 
6 USCIS Policy Manual E.7(D)(4), https://www.uscis.gov/policymanual. 3 
2 In this case, there is no evidence in the record of a bargaining representative for the occupation. 
3 As set forth in the USCIS Policy Manual regarding posting locations of Schedule A Notices: 
If the employer currently employs relevant workers at multiple locations and does not know where the 
beneficiary will be placed, then the employer must post the notice at the worksite(s) of all of its locations 
or clients where relevant workers currently are placed ... The situation of multiple work locations may 
arise in, but is not limited to, a scenario when the employer is a staffing agency which has clients under 
contract at the time that the employer seeks to post a timely notice of filing. In support of the petition, 
2 
Here, the petition and the labor certification state that the primary, worksite location is I I I l located atl LI I NM 87111. The 
DOL ETA Form 9141, Application for Prevailing Wage Determination (PWD), also lists the worksite 
address asl • I and it indicates that the work will not be performed in 
multiple worksites or at another location. The prevailing wage was derived from the I I 
New Mexico worksite location. 4 The Petitioner posted the Notice at I I I I and at its headquarters in California, and it provided a copy of the Notice with the 
petition. 
With the petition, th~ Petitioner submitted a copy of staffing vendor services agreement dated June 6[ 
2017, between it and I ..... -------~ ____ _,J a division ofi._ ____________ ------,-0_ 
pursuant to which the Petitioner a reed to rovide staffin services to healthcare centers operated by 
affiliates ofc=J s client, The agreement refers to the "Managed 
Services Provider Agreement" (MSP) betweenc=Jand which is not located in the record. 
Without the MSP, we cannot determine the terms under which s vendors may staffl I 
facilities. Additionally, the Petitioner's agreement with Ddoes not detail tbd I locations 
where qualified clinical personnel may be placed, nor does it indicate that registered nursing services 
are contemplated under the agreement. Further, the Petitioner's agreement with C:J does not 
guarantee that work orders will be issued for registered nursing services at ~ I locations, 
including.____,, ___________ __. Instead, the agreement states thaL_j"is not obligated 
to place any orders or any particular volume of orders ... under this Agreement." 
In a notice of intent to deny (NOID) dated February 19, 2020, the Director stated that "it appears that 
the notice of filing an application for labor certification does not co~ with the regulatory 
requirements." The Director noted that the Petitioner's agreement withl__J was specifically for 
physical therapist/assistant positions and not for registered nurses. In response to the NOID, the 
Petitioner submitted an employment agreement between it and the Beneficiary dated Febru~ 
2020, stating that the Beneficiary would primarily "provide f[ofess~oua~ nursing services toL____..,.._J 
I 11 .___~~-----..-1NM I I and to such 
health care facilities or organizations ("Client Facility") as Employer shall from time to time 
designate." The employment agreement farther states that "Employee may be required to work in 
Id. 
the employer may provide a copy of one posting notice supported by a list of all locations where the 
notice was posted and dates of posting in each location. The employer does not have to submit a copy of 
each notice. 
4 To meet Schedule A eligibility, a petitioner must submit a valid FWD obtained in accordance with 20 C.F.R. §§ 656.40 
and 656.41. See 20 C.F.R. § 656.15(6)(1). As noted, "in situations where there are multiple worksites (for example, the 
employer is a staffing agency), if the employer knows where they will place the beneficiary, the prevailing wage is the 
wage applicable to the area of intended employment where the worksite is located. If an employer with multiple clients 
does not know where they will place the beneficiary among its multiple clients, the prevailing wage is derived from the 
area of its headquarters." 6 USC1S Policy Manual, supra, at E.7(0)(1). Based on the record before us, and as further 
detailed herein, the prevailing wage appears to be properly based at the Petitioner's headquarters inl I California. 
3 
different Client Facilities within a thirty-five (35) mile radius from the Employee's assigned branch 
office." 5 The Petitioner asserted that the intended work location isl I 
In response to the NOID, the Petitioner also submitted a list detailing its nurse staffing work orders 
for various lhea)thcre centers throughout the United States in early 2020, including! I I and other facilities in New Mexico, New Hampshire, Vermont, 
Pennsylvania, Massachusetts, Delaware, Kentucky, West Virginia, New York, Washington, and 
California. It also provided specific work orders issued fo~ 16 The 
response also included a statement from the Petitioner's CEO which states that "in the unlikely event 
that the facility that [ the Petitioner] intends to place the Beneficiary would not have a position available 
upon the Beneficiary being granted legal permanent resident status, she would be placed in an 
alternative location." 
In his decision, the Director concluded that the Notice was not properly posted. Specifically, he 
determined that because the Beneficiary could work at multiple locations, and the Petitioner does not 
know where the Beneficiary would be placed, it should have posted Notice at the worksites of all of its 
clients where relevant workers currently are placed. On appeal, the Petitioner asserts that it knows 
where the Beneficiary will work and that it was only required to post the Notice a~ I I I It asserts that there is no requirement as to the length of time that the Beneficiary has 
to be placed there; that it is permitted to plan for "future contingencies at other locations;" that it intends 
to employ the Beneficiary atl I: and that its "business model, history, 
and past results" indicate that it will employ the Beneficiary at '-----------------' 
We agree with the Director and conclude that the Notice was not properly posted. The Petitioner has 
not established by a preponderance of the evidence that it has the ability to place the Beneficiary as a 
full-time registered nurse atl I While the Petitioner may intend to 
initially place the Beneficiary atl l its agreement withe=] does not 
require that any work orders be issued for services at any facility; it does not indicate the names and 
locations of facilities where workers might be placed; and it does not indicate that professional nursing 
services are contemplated under the agreement. The Petitioner must support its assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 
.1Q..!..QL.. Thus, although work orders were issued to the Petitioner to provide nurse staffing services to 
L___J facilities in early 2020, the work orders do not establish a contractual agreement connecting 
the Petitioner to the provision of registered nursing services exclusively at the location detailed on the 
petition, labor certification, and PWD. On appeal, the Petitioner asserts that it cannot locate the 
addendum to the agreement namingl las a possible work location. 
However, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofSkirball Cultural Ctr., 25 I&N Dec. 799,806 (AAO 
2012). 
5 According to its website] I operates hundreds of healthcare centers across multiple states. [ I has nine other 
healthcare center locations within a 35-mile radius of I r 1~. ------~I 
.__---~--------~ (last visited Feb. 2, 2021). 
6 The record does not contain invoices demonstrating that the Petitioner actually fulfilled the work orders submitted to the 
record. 
4 
Also, the record indicates that the Beneficiary might contractually be placed at other locations where 
the Petitioner employs other workers. Specifically, as previously highlighted, the Petitioner's 
employment agreement with the Beneficiary provides that her proposed work locations include I I I I and "such health care facilities or or anizations" as it ma desi nate that 
are located "within a thirt
1
-five (35) mile radius" fro 
I J i~ I New Mexico, is part ofL-~_.....,....,...-----------1 
which includes nine other medical centers within a 35-mile radius of.__~-------' 
I I where the Beneficiary might be required to work. Therefore, even if the record 
sufficiently established a contractual relationship connecting the Petitioner to the provision of 
professional nursing services atl I facilities, which it does not, the Beneficiary's employment 
agreement demonstrates that she might work at a number of them and not solely atl I I I Further, the record does not demonstrate whether the Petitioner has placement 
agreements with facilities other thanl I in the 35-mile radius where the Beneficiary might work. 
Thus, according to her employment agreement with the Petitioned I 
is not the only worksite where the Beneficiary might work. 7 Because the record does not establish that 
the Petitioner knows where the Beneficiary will be placed, the Petitioner should have posted the Notice 
at the worksites of all of its locations or clients where relevant workers are currently placed. See 6 
USCIS Policy Manual, supra, at E.7(D)(4). In addition, the prevailing wage should have been based 
at the Petitioner's headquarters in I I California. See 6 USCIS Policy Manual, supra, at 
E.7(D)(l). 8 
In sum, the Petitioner asserts on appeal that it knows where the Schedule A employee will be placed -
at I ~- However, because of the deficiencies detailed above, the record 
does not properly establish that the Petitioner knows where the Beneficiary will be placed. 9 Therefore, 
the Notice should have been posted at the worksites of all of its locations or clients where relevant 
workers are currently placed. Instead, the Petitioner posted Notice onl
7 
at 
I linl I New Mexico and at its headquarters i~~ __ _.J CA~_-T_h_u_s_, -th_e_P_e-t1-. t1-. o-n-er_. 
has not demonstrated that it posted Notice at all of the proper locations as required by 20 C.F.R. 
§ 656.10( d)(l ). The appeal will be dismissed for this reason. 
III. RESERVED ISSUE 
As noted, the Director also determined that the record did not establish that the job opportunity is bona 
fide. However, because the Petitioner's defective Notice is dispositive in this case, we decline to reach 
and hereby reserve the appellate arguments regarding the remaining issue. 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). 
7 Where there are multiple possible worksite locations, the Petitioner must describe the requirement on the labor 
ceitification, notice of filing, and PWD. The Petitioner did not do so here. 
8 In any future filings, the Petitioner must establish the validity of its PWD in accordance with 20 C.F.R. §§ 656.40 and 
656.41, and that the Notice states the proper rate of pay as required by 20 C.F.R. § 656.10( d)(6). 
9 We note that in a letter submitted on appeal, the Petitioner asseited that it places registered nurses at "hundreds of facilities 
throughout the U.S.," but the record does not identify the Petitioner's relevant clients. In any future filings, the Petitioner 
must clarify its applicable clientele. 
5 
IV. THE PETITIONER'S ABILITY TO PAY THE PROFFERED WAGE 
Although not addressed by the Director in his decision, the record does not establish the Petitioner's 
continuing 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 tax returns, or audited financial statements. Id. The proffered wage in this case is $60,133 per 
year. 
In determining a petitioner's ability to pay, we first examine whether it paid a beneficiary the foll 
proffered wage each year from a petition's priority date. Here, the record does not establish that the 
Petitioner paid the Beneficiary sufficient wages in any relevant year. n: as here, a petitioner did not 
pay a beneficiary the foll proffered wage, we next examine whether it had sufficient annual amounts 
of net income or net current assets to pay the difference between the proffered wage and the wages 
paid, if any. 10 If a petitioner's net income or net current assets are insufficient, we may also consider 
other evidence of its ability to pay the proffered wage. 11 The record does not contain the Petitioner's 
federal tax return, audited financial statement, or annual reports for 2020, the year of the priority date. 
Without this regulatory-prescribed evidence, we cannot affirmatively find that the Petitioner had the 
continuing ability to pay the proffered wage from the priority date. 
We note that USCIS records show that the Petitioner has filed dozens of other Form 1-140 petitions for 
other beneficiaries. Thus, the Petitioner must establish its ability to pay this Beneficiary as well as the 
beneficiaries of the other Form 1-140 petitions that were pending or approved as of: or filed after, the 
priority date of the current petition. 12 For each year at issue, the determination of the Petitioner's ability 
to pay the wages of beneficiaries of Forms 1-140 that were pending or approved as of, or filed after, the 
priority date of the current petition should be made as follows: (a) calculate any shortfall between the 
proffered wages and any actual wages paid to the primary Beneficiary and the Petitioner's other 
beneficiaries, (b) add these amounts together to calculate the total wage deficiency, and ( c) 
1° Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. 
Donuts, LLC v. Napolitano. 558 F.3d 111, 118 (1st Cir. 2009); Tongatapu Woodcraft Haw., Ltd. v. Feldman, 736 F.2d 
1305, 1309 (9th Cir. 1984); Estrada-Hernandez v. Holder, 108 F. Supp. 3d 936, 942-946 (S.D. Cal. 2015); Rizvi v. Dep 't of 
Homeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), aff'd, 627 Fed. App'x 292, 294-295 (5th Cir. 2015). 
11 We may consider evidence of a petitioner's ability to pay beyond its net income and net current assets. including such 
factors as: the number of years it has conducted business; the growth of its business; its number of employees; the 
occurrence of any uncharacteristic business expenditures or losses; its reputation in its industry; whether a beneficiary will 
replace a current employee or outsourced service; or other evidence of its ability to pay a proffered wage. See Matter of 
Soncgawa, 12 T&N Dec. 612. 614-615 (Reg'l Comm'r 1967). 
12 We do not consider the other beneficiaries for any year that the Petitioner has paid the Beneficiary a salary equal to or 
greater than the proffered wage. Further, the Petitioner's ability to pay the proffered wage of one of the other T-140 
beneficiaries is not considered: 
• Atter the other beneficiary obtains lawful permanent residence; 
• If an 1-140 petition filed on behalf of the other beneficiary has been withdrawn, revoked, or denied without a pending 
appeal or motion; or 
• Before the priority date of the 1-140 petition filed on behalf of the other beneficiary. 
6 
demonstrate that its net income or net current assets exceed the total wage deficiency. 13 The record 
does not establish the Petitioner's ability to pay all of the relevant beneficiaries in this case. 
As detailed above, in any future filings, the Petitioner must submit additional evidence to establish its 
continuing ability to pay the proffered wage from the priority date onward. 
ORDER: The appeal is dismissed. 
13 It is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). 
7