dismissed EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF B-F-N-&R-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 5, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a skilled nursing facility, seeks to employ the Beneficiary as a "staff nurse/registered 
nurse." It seeks her classification under the third-preference, immigrant classification as a skilled 
worker. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ l 153(b)(3)(A)(i). This employment-based, "EB-3" category allows a U.S. organization to sponsor 
a foreign national for lawful permanent resident status to work in a job requiring at least two years of 
training or experience. 
The Director of the Nebraska Service Center denied the petition. The Director concluded that, 
contrary to U.S. Department of Labor (DOL) regulations, the Petitioner did not notify its employees 
of the address to where they could send evidence regarding the accompanying application for 
permanent employment certification. 
On appeal, the Petitioner argues that its notice met requirements because it modeled the posting on a 
sample developed by DOL and U.S. Citizenship and Immigration Services (USCIS). 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
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 usually must seek DOL 
certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § l 182(a)(5)(A)(i). If DOL approves a 
position, an employer next submits the labor certification with an immigrant visa petition to USCIS. 
Section 204 of the Act, 8 U.S. C. § 1154. If USCIS grants a petition, a foreign national may finally 
apply abroad for an immigrant visa or, if eligible, for adjustment of status in the United States. See 
section 245 of the Act, 8 U.S.C. § 1255. 
DOL, however, has already determined that the United States lacks sufficient nurses and that 
employment of foreign nationals in these "Schedule A" positions will not harm the wages or 
working conditions of U.S. nurses. 20 C.F.R. § 656.5. DOL therefore authorizes USCIS to 
adjudicate labor certification applications in petition proceedings for Schedule A nurses. 20 C.F.R. 
§ 656.15(a). Thus, in this matter, USCIS rules not only on the petition, but also on its accompanying 
Matter of B-F-N-&R-C-, Inc. 
labor certification application. See 20 C.F.R. § 656. lS(e) (describing USCIS's labor certification 
determination in Schedule A proceedings as "conclusive and final"). 
11. THE NOTICE OF FILING 
When Congress created the current labor certification requirement, it stated that "no certification 
may be made unless the applicant for certification has, at the time of filing the application, provided 
notice of the filing" to its employees. Immigration Act of 1990, Pub. L. No. 101-649, § 122(b)(l), 
104 Stat. 4978, 4994 (1990); see also section 212 of the Act, n. 6. Thus, when an employer offers a 
non-unionized position to a foreign national, it must document that it posted notice of the filing of 
the labor certification application to its employees at the proposed worksite for at least 10 
consecutive business days. 20 C.F.R. § 656. l0(d)(l)(ii). 1 The notice must: indicate that the posting 
stems from the filing of an application for the offered position; state that anyone may send 
documentary evidence about the application to the DOL certifying officer; list the address of the 
appropriate officer; and be posted between 30 and 180 days before the application's filing. 
20 C.F.R. § 656.10(d)(3). In Schedule A cases, the notice must also describe the job and rate of pay. 
20 C.F.R. § 656.10(d)(6). 
Here, the Petitioner submitted a copy of the filing notice it posted regarding its labor certification 
application for the offered position of staff nurse. In relevant part, the notice stated: 
Any person may provide documentary evidence bearing on the application to the 
Certifying Officer of the U.S. Department of Labor holding jurisdiction over the 
location of the proposed employment. Contact information for these offices can be 
found on the internet at http://www.foreignlabor.doleta.gov/foreign/contacts.asp. 
(emphasis in original). The Director concluded that, contrary to 20 C.F.R. § 656.10(d)(3)(iii), the 
Petitioner's notice did not "[p ]rovide the address of the appropriate Certifying Officer." The 
Director also found that the notice referenced an inaccessible website. 2 
On appeal, the Petitioner states that it modeled its posting notice on a sample developed by DOL and 
USCIS. See Memorandum from Michael Aytes, USCIS Acting Assoc. Dir., Domestic Ops., AFM 
[Adjudicator's Field Manual} Update: Chapter 22: Employment-based Petitions (AD03-01), 
HQPRD70/23.12 18-19 (Sept. 12, 2006), https://www.uscis.gov/sites/default/files/ 
USCIS/Laws/Memoranda/Static Files Memoranda/ Archives%201998-2008/2006/ - -
afm_ch22_091206r.pdf (last visited Mar. 1, 2019). This memorandum updated certain sections of 
the AFM 3 Similar to the Petitioner's notice, the sample notice included in the AFM states: 
1 For a unionized position, an employer must notify the bargaining representative of its employees in the same 
occupational classification and area of intended employment. 20 C.F.R. § 656.1 0(d)(l )(i). 
2 The Petitioner contests the website's inaccessibility. But the company's evidence indicates that a different DOL 
website lists the certifying officer's address. See http://www.foreignlaborcert.do1eta.cfm (last visited Mar. 1, 2019). 
3 See also USCJS Adjudicator's Field Manual, ch. 22.2(b)(4)(C)(v), https://www.uscis.gov/sites/default/files/ocomm/ 
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Matter of B-F-N-&R-C-, Inc. 
Any person may provide documentary evidence bearing on the application to the 
Certifying Officer of the U.S. Department of Labor holding jurisdiction over the 
location of the proposed employment. Contact information for these offices can be 
found on the Internet at www.foreignlaborcert.doleta.gov/foreign/contacts.asp. 
Id at 19. The accompanying USCIS memo states: "Adjudicators should accept posting notices that 
are modeled after the sample." Id at 18. Because the Petitioner drafted its notice based on the 
sample, it argues that its posting meets regulatory requirements. However, regulations clearly 
require the notice to include the address of the certifying officer. 20 C.F.R. § 656.10(d)(3). Where 
guidance issued via memorandum and the AFM appears to conflict with regulations; the regulations 
are controlling. The AFM itself states that "[t]o the extent that one policy document appears to be in 
conflict with another, the "higher" authority is controlling .... For example, if a directive in a field 
manual appears to conflict with a regulation, the regulation must be followed." USCIS Adjudicator's 
Field Manual, ch.3.4, https://www.uscis.gov/sites/default/files/ocomm/ ilink/0-0-0-6423. html#0-0-
0-417. 
Moreover, DOL has found that "Congress' primary purpose in promulgating the notice requirement 
was to provide a way for interested parties to submit documentary evidence bearing on the 
application for certification." Final Rule for Applications for Permanent Employment Certification, 
69 Fed. Reg. 77326, 77337-38 (Dec. 27, 2004). Thus, filing notices must provide addresses of 
appropriate certifying officers to ensure that the officers receive evidence "directly" and "without 
delay." Matter of Haw. Pac. U, 2009-PER-00127, slip op. at 13 (BALCA Mar. 2, 2010) (en bane). 
Like USCIS, DOL publicly states its acceptance of posting notices modeled after the sample. See 
DOL, "OFLC [Office of Foreign Labor Certification] Frequently Asked Questions and Answers," 
"Audit Q.5," https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited Mar. 1, 2019). 
But DOL denies labor certification applications with notices listing certifying officer contact 
information containing only the website address referenced in the sample. 4 The Board of Alien 
Labor Certification Appeals (BALCA) has affirmed such denials, finding that 20 C.F .R. § 
656.10(d)(3)(iii) requires a filing notice to provide the mailing address of an appropriate certifying 
officer, not the address of a website listing the mailing address. See, e.g., Florence Unified Sch. 
Dist., slip op. at 3. BALCA has held that, read together, the regulation and the text of the sample 
notice clearly instruct employers to use the referenced website to find appropriate certifying officer 
mailing addresses and then list them on the employers' notices. See, e.g., Ace Homecare, slip op. at 
3-4. 
ilink/0-0-0-6423. html#0-0-0-417 (last visited Mar. 1, 2019). 
4 See, e.g., Matter of St. Jude Children's Research Hosp., 2014-PER-00979 (BALCA Aug. 21, 2018); Matter of 
Bloomberg L.P., 2015-PER-00152 (BALCA Mar. 12, 2018); Matter of Florence Unified Sch. Dist. #1, 2015-PER-00524 
(Feb. 27, 2018); Matter of Hill Phoenix, 2015-PER-00256 (BALCA Feb. 8, 2018); Matter of Ace Homecare, LLC, 2016-
PER-00056 (BALCA Nov. 21, 2016) (all affirming denials based on posting notices that listed the website address stated 
in the sample) . 
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Matter of B-F-N-&R-C-, Inc. 
While we are not bound by BALCA decisions, we may take note of the reasoning in such decisions 
when considering issues that arise in the employment-based immigrant visa process. See 8 C.F.R. 
§ 103.3(c) (stating that precedent decisions of the Attorney General, Board of Immigration Appeals, 
and USCIS bind USCIS employees in the administration of the Act). DOL promulgated the 
regulations at issue in this matter; we therefore find the regulatory interpretations of DOL to be 
persuasive. See Chevron US.A., Inc. v. Nat. Res. Def Council, Inc., 467 U.S. 837, 845 (1984) 
(requiring deference to an agency's reasonable construction of a provision it administers). Contrary 
to DOL's regulatory requirements, the Petitioner's notice of filing omitted the required mailing 
address of the certifying officer. We will therefore affirm the petition's denial. 
III. ABILITY TO PAY THE PROFFERED WAGE 
Although unaddressed by the Director, the record also does not establish the Petitioner's ability to 
pay the position's 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 generally include copies of a 
petitioner's annual reports, federal tax returns, or audited financial statements. Id If a petitioner 
employs at least 100 workers, however, USCIS may accept a statement from a financial officer. Id 
Here, the labor certification application states the proffered wage of the offered position of staff 
nurse as $54,184 a year. The petition's priority date is October 19, 2017, its filing date. See 
8 C.F.R. § 204.5(d) (explaining how to determine a petition's filing date). 
The record indicates the Petitioner's employment of more than 100 people. The Director therefore 
accepted a statement from the Petitioner's regional nursing director as proof of its ability to pay the 
proffered wage. USCIS records, however, indicate the Petitioner's filing of multiple immigrant 
petitions for other beneficiaries. 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 therefore must demonstrate its ability to pay the combined 
proffered wages of this and its other petitions that were pending or approved as of this petition's 
priority date, or filed thereafter. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) 
(affirming revocation of a petition's approval where, as of its grant, a petitioner did not demonstrate 
its ability to pay the combined proffered wage of multiple petitions). 5 
USCIS records indicate the Petitioner's filing of at least five other petitions there were pending or 
approved as of October 19, 2017, or filed thereafter. 6 Because the Petitioner must demonstrate its 
ability to pay the combined proffered wages of this and the other petitions, the statement from its 
5 The Petitioner need not demonstrate its ability to pay any proffered wages of petitions that it vvithdrew, or, unless they 
remain pending on appeal, that users denied or revoked. The Petitioner also need not demonstrate its ability to pay 
proffered wages before the priority dates of corresponding petitions. 
6 users records identify the petitions by the follovving receipt numbers: 
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Matter of B-F-N-&R-C-, Inc. 
regional director of nursing does not establish its ability to pay the proffered wage. Rather, in any 
future filings in this matter, the Petitioner must provide copies of annual reports, federal tax returns, 
or audited financial statements for 2017 and, if available, 2018. The Petitioner must also provide the 
proffered wages and priority dates of its five other petitions. Also, the Petitioner may submit 
additional evidence of its ability to pay, including evidence of any wages it paid to applicable 
beneficiaries in 2017 or 2018, and supporting the ability-to-pay factors stated in Matter of 
Sonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). 
IV. CONCLUSION 
The record does not establish the Petitioner's compliance with DOL posting-notice requirements. 
Contrary to Section 291 of the Act, 8 U.S.C. § 1361, the petitioner has not demonstrated its 
eligibility for the benefit sought. 
ORDER: The appeal is dismissed. 
Cite as Matter ofB-F-N-&R-C-, Inc., ID# 3102822 (AAO Apr. 5, 2019) 
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