dismissed EB-3 Case: Nursing

US. Department of fiomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
PUBLIC corn 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. § 1153(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. 
Robert P. Wiemann, Chie 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal.' The appeal will be dismissed. 
The petitioner is a hospital. 
 It seeks to employ the beneficiary permanently 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. 8 656.10, Schedule A, Group I. As required by statute, a Form ETA 9089, Application for 
Permanent Employment Certification (Form ETA 9089 or labor certification) was submitted in response to 
the director's request for evidence (RFE) dated November 30, 2005. The director determined that the 
petitioner had failed to comply with the Department of Labor (D0L)'s notification requirements and the 
director also determined that the petitioner had failed to submit a valid Prevailing Wage Determination 
(PWD) that meets the requirements of 20 C.F.R. $5 656.10 and 656.15. The director denied the petition 
accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific 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. 
As set forth in the director's March 29, 2006 denial, the issues in this case are whether or not the petitioner 
has posted the notice of filing in compliance with the requirements of the regulations and whether or not the 
petitioner has filed the petition with a valid PWD under the requirements of the regulations. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 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. Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified 
immigrants who hold baccalaureate degrees and are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(a)(2) provides that a properly filed Form 1-140, must be "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. 5 204.5(d). Here, the priority date is March 28,2005. 
Counsel asserts that the petition should be considered as a "pre-PERM" case based on minutes of an 
American Immigration Lawyers Association (AILA)/DOL-ETA Liasion Meeting (AILA minutes) held on 
March 17, 2005. Per the AILA minutes DOL follows the "postmark rule" and assigns a filing date by the date 
the Form ETA 9089 is postmarked or sent by Federal Express regardless of date of arrival. Therefore, 
counsel asserts that a priority date is assigned by postmarking date, not by receipt by CIS and the current 
Schedule A petition should be evaluated under pre-PERM regulations because the current petition was 
postmarked on March 25, 2005, before PERM'S enactment on March 28, 2005. Counsel's reliance on the 
AILA minutes is misplaced. See 8 C.F.R. 5 103.2(a)(7)(i).* Counsel does not provide a published citation 
1 
 While the instant appeal is pending with the AAO, the petitioner filed another 1-140 immigrant petition 
(LIN-06-173-51632) on behalf of the instant beneficiary with the Nebraska Service Center on May 9, 2006 
and the petition (LIN-06- 173-5 1632) was approved by the Nebraska Service Center on November 16,2006. 
2 
 The regulation at 8 C.F.R. 5 103.2(a)(7)(i) states in pertinent part that: "General. An application or petition 
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relating to the acceptance of late filings by CIS that supersedes 8 C.F.R. 5 103.2(a)(7)(i), 20 C.F.R. 8 
656.15(a), and 8 C.F.R. 9 204.5(d). Counsel does not state how answers by a DOL representative at an 
AILAIDOL-ETA Liasion Meeting are applicable to the instant petition before the Department of Homeland 
Security's CIS or AAO. While 8 C.F.R. 9 103.3(c) provides that precedent decisions of 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 also argues that timely filing is determined by postmark referring to a memorandum from William 
Yates, Associate Director for Operations for USCIS on April 30, 2001 regarding filing petitions or 
applications under Section 245(i) (Yates' April 30, 2001 memo). However, counsel does not provide any 
evidence to show that Yates' April 30, 2001 memo applies to the filing of Schedule A immigrant petition 
under PERM regulations and that Yates' April 30,2001 memo supersedes 8 C.F.R. tj 103.2(a)(7)(i), 20 C.F.R. 
tj 656.15(a), and 8 C.F.R. 8 204.5(d). 
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 regulations concerning labor certifications went into effect on March 28, 2005. The new regulations 
are referred to by the Department of Labor 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. The record shows that the 
instant petition was filed on March 28,2005 and CIS'S regulations and DOL's regulations expressly state that the 
effective date is March 28,2005. The new procedures must be applied to the instant case and the petitioner must 
meet all requirements set forth by PERM. 
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 appeal.) The relevant 
evidence in the record includes two notices of job offer availability and a prevailing wage determination from 
Maryland Department of Labor, Licensing and Regulation. 
The regulation at 20 C.F.R. tj 656.15 states in pertinent part: 
(a) Filing application. An employer must apply for a labor certification for a Schedule A 
occupation by filing an application in duplicate with the appropriate DHS office, and not 
with an ETA application processing center. 
(b) General documentation requirements. A Schedule A application must include: 
received in a [CIS] office shall be stamped to show the time and date of actual receipt and, unless otherwise 
specified in part 204 or part 245 or part 245a of this chapter, shall be regarded as properly filed when so 
stamped, if it is signed and executed and the required filing fee is attached or a waiver of the filing fee is 
granted." 
3 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Page 4 
a. 
 An Application for Permanent Employment Certzjication form, which includes a 
prevailing wage determination in accordance with rj 656.40 and 8 656.41. 
b. Evidence that notice of filing the Application for Permanent Employment 
Certification was provided to the bargaining representative or the employer's 
employees as proscribed in 8 656.10(d). 
The regulation at 20 C.F.R. 8 656.10(d)(l) provides in relevant part: 
In applications filed under $8 656.15 (Schedule A), 656.16 (Sheepherders), . . . 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 
Certifying Officer, as follows: 
(i) To the bargaining representative@) (if any) of the employer's employees.. . 
(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. 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). 
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 used for the 
recruitment of similar positions in the employer's organization. The documentation 
requirement may be satisfied by providing a copy of the posted notice and stating 
where it was posted, and by providing copies of all the in-house media, whether 
electronic or print, that were used to distnbute notice of the application in accordance 
with the procedures used for similar positions within the employer's organization. 
According to the regulation at 20 C.F.R. $ 656.10(d)(3): 
The notice of the filing of an Application for Permanent Employment Certification 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; 
. . . 
111. 
 Provide the address of the appropriate CertifLing Officer; and 
iv. 
 Be provided between 30 and 180 days before filing the application. 
With the initial filing the petitioner submitted a copy of the notice of posting and an attestation of posting 
SPHR, Director Workforce Recruitment & Staffing 
 In the attestation of 
that "copies of this job offer Notice were poste 
 at 
 e employment location 
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pursuant to 20 CFR 656.20(g)(l)." The notice indicates the date posted: April 3, 2001, date removed: 
permanent posting, and results: multiple openings as of March 6; 2005. It is not clear whether the notice was 
posted for at least 10 consecutive business days at the facility or location the beneficiary will be actually 
performing duties, i.e. Maryland, between 30 days and 180 days before filing 
the application. In response to the director's WE dated November 30, 2005, the petitioner submitted another 
notice of job offer availability with an attestation of posting from ting Director Workforce 
Recruitment and Staffing 
 In the attestation of 
 certified that "copies of 
the above Notice were posted at the employment location pursuant to 20 CFR 656.10 et seq. from June 1, 
2005 through September 30, 2005." The notice indicates the date posted: June 1, 2005, date removed: see 
below, and results: multiple openings remain. The regulation at 20 C.F.R. 5 656.10(d)(3) requires that the 
notice must be posted between 30 and 180 days before filing the application. The record shows that the 
instant petition with labor certification application was filed on March 28, 2005 and the notice was posted 64 
days after filing the application. Therefore, the petitioner failed to submit evidence that the notice was 
properly posted in accordance with 20 C.F.R. tj 656.10. Since the petitioner failed to post the notice in 
compliance with regulations prior to the filing, any subsequent effort by the petitioner to correct the notice of 
posting would constitute a material change to the petition. If the petitioner was not already eligible when the 
petition was filed, subsequent developments cannot retroactively establish eligibility as of the filing date, and 
cited Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Com. 1971.) 
The regulation at 20 C.F.R. 5 656.15 states in pertinent part: 
(c) Filing application. An employer must apply for a labor certification for a Schedule A 
occupation by filing an application in duplicate with the appropriate DHS office, and not 
with an ETA application processing center. 
(d) General documentation requirements. A Schedule A application must include: 
(1) An Application for Permanent Employment Certzfication from, which includes a 
prevailing wage determination in accordance with 5 656.40 and fj 656.41. 
The regulation at 20 C.F.R. fj 656.40(c) states: 
Validity period. The SWA must specify the validity period of the prevailing wage, which in 
no event may be less than 90 days or more than 1 year from the determination date. To use a 
SWA PWD, employers must file their applications or begin the recruitment required by $8 
656.17(d) or 656.21 within the validity period specified by the SWA. 
The petitioner did not submit a prevailing wage determination (PWD) with the initial filing. In response to the 
director's WE date November 30, 2005, the petitioner submitted a PWD fi-om Maryland Department of Labor, 
Licensing and Regulation (Maryland DLLR). The PWD was determined on July 5, 2005 and was valid for at 
least 90 days but not more than a year from the date of the determination. That means the PWD from 
Maryland DLLR for the instant case was valid from July 5, 2005 to July 4, 2006. The PWD was not valid at 
the time the petitioner filed the petition on March 28, 2005. The regulation at 20 C.F.R. 5 656.40(c) expressly 
requires that employers must file the applications within the validity period of PWD specified by the SWA. 
However, the petitioner did not submit a valid PWD with its filing and therefore, failed to meet the 
requirements of the valid PWD under the PERM regulations. Since the petitioner failed to obtain a 
valid PWD in compliance with regulations prior to the filing, any subsequent effort by the petitioner to correct 
the PWD would constitute a material change to the petition. If the petitioner was not already eligible when 
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the petition was filed, subsequent developments cannot retroactively establish eligibility as of the filing date, 
and cited Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Corn. 1971 .) 
Therefore, counsel's assertion on appeal cannot overcome the director's decision. The record reflects that the 
petitioner failed to post the notice in compliance with regulations prior to the filing and failed to file the 
instant petition within a valid period of a prevailing wage determination as required by the regulation. 
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 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.