dismissed EB-3 Case: Nursing

U.S. Department of IIomeIand Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY 
U.S. Citizenship 
and Immigration 
Services 
identi@ing data deleted to 
pnvent dearly wwarranted 
invasia~n ~fpt~90nal privacy 
Office: CALIFORNIA SERVICE CENTER Date: 
WAC-05- 184-5 1308 
 APR 2 6 2007 
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. 5 1 1 53(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
~dministrative Appeals Office 
DISCUSSION: The Director, California Service Center, denied the immigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a hospital, and seeks to employ the beneficiary permanently in the United States as a 
registered nurse, a professional or skilled worker, pursuant to section 203(b)(3) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(3). 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. Cj 1153(b)(3)(A)(ii), 
provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees 
and who are members of the professions. The regulation at 8 C.F.R. § 204.5(1)(2), and Section 203(b)(3)(A)(i) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. Cj 1153(b)(3)(A)(i), 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 labor (requiring at least two years training or experience), not of a 
temporary nature, for which qualified workers are not available in the United States. See also 8 C.F.R. 
§204.5(1)(3)(ii). For the beneficiary to qualify, the petitioner must show that it has the ability to pay the 
beneficiary the proffered wage, and that the beneficiary meets the qualifications set forth in the certified labor 
certification. 
The petitioner has applied for the beneficiary under a blanket labor certification pursuant to 20 C.F.R. Cj 656.5, 
Schedule A, Group I. See also 20 C.F.R. Cj 656.15. Schedule A is the list of occupations set forth at 20 C.F.R. Cj 
656.5 with respect to which the Department of Labor ("DOL") 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. 
Based on 8 C.F.R. 5 204.5(a)(2) and (1)(3)(i) an applicant for a Schedule A position would file Form 1-140, 
"accompanied by any required individual labor certification, application for Schedule A designation, or 
evidence that the alien's occupation qualifies as a shortage occupation within the Department of Labor's 
Labor Market Information Pilot program."' The priority date of any petition filed for classification under 
section 203(b) of the Act "shall be the date the completed, signed petition (including all initial evidence and 
the correct fee) is properly filed with [Citizenship and Immigration Services (CIS)]." 8 C.F.R. Cj 204.5(d). 
Pursuant to the regulations set forth in Title 20 of the Code of Federal Regulations, the filing must include 
evidence of prearranged employment for the alien beneficiary. The employment is evidenced by the employer's 
completion of the job offer description on the application form and evidence that the employer has provided 
appropriate notice of filing the Application for Alien Employment Certification to the bargaining representative 
or to the employer's employees as set forth in 20 C.F.R. § 656.1 O(d). Also, according to 20 C.F.R. Cj 656.15, 
aliens who will be permanently employed as professional nurses must have (1) passed the Commission on 
Graduates of Foreign Nursing Schools (CGFNS) Examination, or (2) hold a full and unrestricted license to 
practice professional nursing in the [sltate of intended employment, or that the alien has passed the National 
Council Licensure Examination for Registered Nurses (NCLEX-RN). 
On March 28, 2005, pursuant to 20 C.F.R. Cj 656.17, the Application for Permanent Employment 
Certification, ETA-9089 replaced the Application for Alien Employment Certification, Form ETA 750. The 
new Form ETA 9089 was introduced in connection with the re-engineered permanent foreign labor 
certification program (PERM), which was published in the Federal Register on December 27, 2004 with an 
effective date of March 28, 2005. See 69 Fed. Reg. 77326 (Dec. 27, 2004). 
Page 3 
Additionally, the petitioner must demonstrate its ability to pay the proffered wage. The regulation 8 C.F.R. 
5 204.5(g)(2) states in pertinent part: 
Ability ofprospective 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. 
In the case at hand, the petitioner submitted the Application for Permanent Employment Certification, ETA 
9089, with the 1-140 Immigrant Petition on June 15, 2005, which is the priority date. The proffered wage as 
stated on Form ETA 9089 for the position of a nurse is $29 per hour, 40 hours per week, which equates to an 
annual salary of $60,320. On the 1-140 petition filed, the petitioner listed the following information related to 
the petitioning entity: established: October 12, 1947; gross annual income: over $300 million; net annual 
income: over $1 0 million; and current number of employees: 809. 
The petitioner additionally submitted documentation to show the petitioner's ability to pay, as well as 
documentation regarding the beneficiary's qualifications. The petitioner submitted a posting notice, which 
evidenced that the petitioner posted the position from May 24,2005 to June 2,2005, or eight business days. 
The director denied the petition on October 19, 2005 on the basis that the petitioner failed to properly post the 
position 30 to 180 days prior to filing in accordance with 20 CFR 5 656.10(d)(l)(ii), and also failed to meet 
the (d)(3)(iv) requirement of posting for ten consecutive business days. The petitioner appealed and the 
matter is now before the AAO. 
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). The AAO considers all 
pertinent evidence in the record, including new evidence properly submitted upon appeal2. 
The record shows that the appeal is properly filed, timely and makes an allegation of error in law or fact. The 
procedural history in this case is documented by the record and incorporated into the decision. Further 
elaboration of the procedural history will be made only as necessary. 
On appeal, counsel provides that the posting was done properly in "each and every month starting with May 
2005." Further, counsel provides that the petitioner "posts monthly notices" on its bulletin board, and on the 
hospital "intranet," which can be viewed daily by hospital employees. Counsel further provides that he agrees 
"that an 1-140 denial is proper when posting is not timely made," but asserts that in the present matter "the 
posting was properly done, on several occasions, all within the statutory pre-1-140 time frame. The affidavit 
of posting only mentioned the most recent posting but that does not change the fact that the other postings 
were timely." 
2 
 The submission of additional evidence on appeal is allowed by the instructions to the Form 1-2908, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988). 
In support, counsel provided an affidavit from the petitioner's representative, which stated that the notice had 
been posted for 10 consecutive business days in each of the last 12 months: date posted: May 5, 2005, which 
was removed on May 3 1,2005; posted June 1,2005 removed June 30,2005; posted July 1,2005 removed on 
July 29, 2005; posted August 1, 2005 removed on August 3 1, 2005; posted September 1, 2005 to September 
30, 2005; posted October 3, 2005 to October 3 1, 2005; posted November 3, 2005 to November 28, 2005; and 
posted December 1,2005 to December 30,2005. 
A petitioner must establish eligibility at the time of filing. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to CIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). 
One of the requirements to meet Schedule A eligibility is that the petitioner is required to post the position in 
accordance with 20 C.F.R. 5 656.1 O(d), which provides: 
(1 ) 
 In applications filed under 5 656.1 5 (Schedule A), 9 656.16 (Sheepherders), 5 656.1 7 
(Basic Process); 5 656.18 (College and University Teachers), and 5 656.21 
(Supervised Recruitment), the employer must give notice of the filing of the 
Application for Permanent Employment Certification and be able to document that 
notice was provided, if requested by the certi@ing officer as follows: 
(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 from their place of employment. 
(3) The notice of the filing of an Application for Permanent Employment 
Certification shall: 
(i) 
 State that 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. 
(6) If an application is filed under the Schedule A procedures at 5 656.15. . . 
the notice must contain a description of the job and rate of pay and meet the 
requirements of this section. 
Page 5 
Additionally, Section 2 12 (a)(S)(A)(i) of the Act states the following: 
Any alien who seeks to enter the United States for the purpose of performing 
skilled or unskilled labor is inadmissible, unless the Secretary of Labor has 
determined and certified . . . that 
(I) 
 there are not sufficient workers who are able, willing, qualified . . . 
and available at the time of application for a visa and admission to 
the United States and at the place where the alien is to perform such 
skilled or unskilled labor, and 
(11) 
 the employment of such alien will not adversely affect the wages and 
working conditions of workers in the U.S. similarly employed. 
Fundamental to these provisions is the need to ensure that there are no qualified U.S. workers available for the 
position prior to filing. The required posting notice seeks to allow any person with evidence related to the 
application to notify the appropriate DOL officer prior to petition filing. 
Accordingly, to be eligible for a Schedule A petition, as set forth above the petitioner would need to have 
posted the position pursuant to 20 CFR 5 656.10(d)(3)(iv) 30 to 180 days prior to the June 15, 2005 filing, or 
in this case, between December 17, 2004 at the earliest, and completed by May 16, 2005 at the latest. Stated 
alternatively, this would mean that the last day of the posting must be at least 30 days prior to filing in order 
to provide sufficient time for interested persons to submit any documentary evidence to in response to the 
posting notice, or again in the case at hand, completed by May 16,2005. 
The initial notice submitted was posted from May 24, 2005 to June 2, 2005. The notice was deficient in that 
it was only posted for eight business days, and not the ten consecutive business days required by 20 C.F.R. 5 
656.10 (d)(l)(ii). Further, the notice, as noted in the director's decision was not completed 30 to 180 days 
prior to filing the application in accordance with 20 CFR 3 656,1O(d)(3)(iv). The notice additionally failed to 
list the address of the appropriate Department of Labor Certifying Officer where persons may provide 
evidence bearing upon the application. See 20 CFR 5 656.lO(d)(3)(iii). 
Regarding the posting notices submitted on appeal, first, in accordance with 20 CFR 5 656.10(d)(3)(iv) such 
evidence would not be accepted as the posting must have been completed prior to filing. Further, the 
petitioner must demonstrate eligibility at the time of filing. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). Second, even if we were to accept such evidence on appeal, for the posting notice to be completed 
prior to filing, only the May 2005 posting would potentially be relevant, but that notice would be deficient for 
purposes of meeting the posting requirement as well. The posting submitted on appeal was initially posted on 
May 5. Ten consecutive business days would be reached as of May 18. As the 1-140 petition was filed on 
June 15,2005, the posting submitted on appeal would need to have been completed by May 16, 2005 to allow 
the requisite time period for interested parties to respond. All of the other posting notices are dated, and 
posted subsequent to the filing or priority date, and therefore could not be used as the petitioner must 
demonstrate eligibility at the time of filing.' Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
3 
 Counsel additionally submitted a page on appeal from an AILA-SCOPS (Service Center Operations) 
meeting, "Q & A regarding Schedule A Posting Requirements (12/19/2005)," which provides that SCOPS 
instructed Service Centers not to deny Schedule A cases based on posting notices as SCOPS was "seeking a 
resolution for handling them." Posting is a regulatory requirement established for the protection of U.S. 
workers and cannot be contravened. See The Immigration Act of 1990, Pub.L. No. 10 1-649, 122(b)(l), 1990 
Page 6 
Further, although not raised in the director's decision, the petitioner's filing was deficient in other aspects as 
well. 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). 
A petitioner is required to obtain a prevailing wage determination from the relevant State Workforce Agency 
("SWA") in compliance with 20 CFR 5 656.40 prior to filing. Counsel only submitted the prevailing wage 
request on appeal, and not with the initial filing. The petitioner's wage request shows that it was submitted to 
the Employment Development Department (EDD), State of California, the relevant SWA, on October 19, 
2005. The EDD made a determination on the wage request on November 4,2005 subsequent to the petition's 
denial. Accordingly, the petition failed to meet Schedule A eligibility at the time of filing, which it must 
demonstrate. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). A petitioner may not make material 
changes to a petition in an effort to make a deficient petition conform to CIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). Further, the petitioner is required to submit the 
original Form ETA 9089 in duplicate. In the case at hand the petitioner submitted only one original Form 
ETA 9089. See 8 C.F.R. 5 204.5(1)(3)(i), and 20 C.F.R. $656.15(a). 
Based on the foregoing, the petitioner failed to meet the posting requirements as set forth in 20 C.F.R. 
5 656.10(d), both in terms of the length of the posting, and the time period in which the posting would need to 
be completed, and thus would not allow the proper time frame for effected parties or parties with information 
bearing on the application to notify the DOL, and accordingly could adversely impact U.S. workers. See the 
Immigration Act of 1990, Pub.L. No. 10 1-649, 122(b)(l), 1990 Stat. 358 (1 990); 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, 199 1). 
Accordingly, the petitioner has failed to meet the regulatory requirements regarding posting within a specified 
time period prior to filing the Schedule A application. 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. 5 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
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). Further 
guidance provided in letter, memo, or teleconference form would be akin to an unpublished decision, and 
accordingly is not binding. While 8 C.F.R. 5 103.3(c) provides that precedent decisions of Citizenship and 
Immigration Services (CIS), formerly the Service or INS, are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. Precedent decisions must be 
designated and published in bound volumes or as interim decisions. 8 C.F.R. 5 103.9(a). Counsel does not 
provide a published citation related to a director's approval of a Schedule A petition filed with a deficient 
posting notice.