dismissed EB-3 Case: Nursing

IdenWyiug c1l2ta deleted to
pnveat dearly unwarraD&ed
M.It. ofpenoBal pthacy
PUBLIC COpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services 0....
'V,
FILE:
WAC 04 046 50265
.Office: CALIFORNIA SERVICE CENTER Date: OCT 1 0 lOGo
INRE: Petitioner:
Beneficiary:
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:
SELF-REPRESENTED
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. Wieman~hief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: . The preference visa petition was denied by the Director, California Service Center, and.is
now before the Administrat ive Appeals Office (AAO) on appeal. The appeal will be dismissed.1 .
The petitioner is a hosp ital. It seeks to employ the beneficiary permanently in the United States as, a
registered nurse . The petitioner asserts that the beneficiary qualifies for certification pursuant to 20 C .F.R.
/ § 656.10, Schedule A , Group 1. The petitioner submitted the Form ETA 750 , Application for Alien
Employment Certification, with the Form 1-140 , Immigrant Petition for Alien Worker. The .director
determined that the petitioner had not established that the beneficiary qualifies for an occupation listed in
Schedule A, Group 1.The director denied the petition accordingly.
The record shows that the appeal is properly filed and 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 9, 2005 denial, the single issue in this case is whether or not the petitioner
has demonstrated that the beneficiary is qualified to perform the duties of the proffered position.
Section 203(b)(3)(A)(ii) of the Act provides for the granting of preference classification to qualified immigrants
who hold baccalaureate degrees and who are membersof the professions.
Employment-based petitions depend on priority dates. The priority date for Schedule A occupations is
established when the Form 1-140 is properly filed with Citizenship and Immigration Services (CIS). 8 C.F .R
§ 204.5(d). The petition must be accompanied by the documents required by the particular section of the
regulations under which it is submitted. 8 C.F .R. § 103.2(b)(l). The priority date of the petition'in this case is
. December 5,2003 .
The proffered wage as stated on the Form ETA 750 is $26.00 per hour ($54 ,080.00 per year based on a 40
hour work week). On the Form ETA 750B , signed by the beneficiary on November 25,2003, the beneficiary
did not claim to have worked for the petitioner. On the petition, the petitioner claimed to have been
established in 1965, to have a gross annual income of $6,300,000.00, and to currently employ 200 workers .
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.' On appeal, the
petitioner submits a brief, a copy of the beneficiary 's previously submitted registered nurse license issued by
the State of California's Board of Registered Nursing valid from December 10,2004 to September 30 , 2008, a
copy of the beneficiary 's previously submitted interim registered nurse license issued by the State of
California 's Board of Registered Nursing valid from August 14 , 2003 to February 14, 2004, the petitioner's
previously submitted amended Form ETA 750A , the beneficiary 's previously submitted diploma and
1 It is noted that an attorney who has resigned his license to practice law in California represents the .
petitioner. See http ://members.calbar .ca.gov/search/member _detail.aspx ?x=173758) (accessed October 3 ,
2006). Therefore , the AAO may not recognize counsel in this proceeding .
. 2 The submission of additional evidence on appeal is allowed by the instructions to the Form 1-290B , which
are incorporated into the regulations by the regulat ion at 8 C.F.R. § 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
ofSoriano, 19 I&N Dec. 764 (BIA 1988).
Page 3
transcripts from ~ollege in' the Philippines indicating that the beneficiary obtained her bachelor
of science degree in nursing in April 1993 and a copy of the petitioner's previously submitted letter in support
of the petition .. Other relevant evidence in the record includes the beneficiary's registered nurse license issued
by the Professional Regulation Commission in the Philippines valid from March 4, 1994 to August 10,2005,
and the beneficiary's examination results and certification from the Nurse Licensure Examination given by
the Professional Regulation Commission in the Philippines on August 28, 1993. The record does not contain
any other evidence relevant to the beneficiary's qualifications.
On appeal, the petitioner asserts that the director erred in denying the petition because the beneficiary is a
licensed registered nurse.in the State of California, and that the petitioner experiences a shortage of nurses and
is in great need of the beneficiary's services. The petitioner also asserts that the beneficiary passed the
. NCLEX-RN examination in California prior to receiving her registered nurse license from the California
Board of Registered Nursing ..
In order'to establish the beneficiary's eligibility under the instant petition, the petitioner must demonstrate that
on the filing date of the petition, the beneficiary had the qualifications stated on the Form ETA 750,
Application for Alien Employment Certification, whichwas submitted with the petition. Matter of Wing's
Tea House, 16 I&N Dec. 158 (Act. Reg. Comm. 1977). The Form ETA 750 specifies that the position
requires a bachelor of science degree in nursing. The petitioner must also demonstrate that as of the priority
date, the beneficiary possessed the qualifications imposed by the regulations.
Definitions of skilled workers and of professionals for purposes of immigrant petitions' are found in the
regulation at 8 C.F.R. § 204.5(1)(3) which states, in pertinent part:
(B) Skilled workers. If the petition is fora skilled worker, the petition must be accompanied
by evidence that the alien meets the educational, training or experience, and any other
requirements of the individual labor certification, meets the requirements for Schedule A
designation, or meets the requirements for the Labor Market .Information Pilot Program
occupation designation. The minimum requirements for this classification are at least two
years of training or experience.
(C) Professionals. If the petition is for a professional, the petition must be accompanied by
evidence that the alien holds a United States baccalaureate degree or a foreign equivalent
degree and by evidence that the alien is a member of the professions. Evidence of a
baccalaureate degree shall be in the form an official college or university record showing the
date the baccalaureate degree was awarded and the area of concentration of study. To show
that the alien is a member of the professions, the petitioner must submit evidence showing
that the minimum of a baccalaureate degree is required for entry into the occupation.
The regulation at 20 C.ER. § 656.10(a)(2) states that an alien may qualify for Schedule A designation as a nurse
if the person has passed the CGFNS examination or if the person holds a full and unrestricted license to practice
nursing in the state of intended employment.
Similarly, the regulation on applications for labor certification for Schedule A occupations at 20 C.F.R. § 656.22
(c)(2) states, in pertinentpart:
An employer seeking a Schedule A labor certification as a professional nurse (§ 656.10(a)(2)
of this part) shall' file, as part of its labor certification application, documentation that the
Page 4
alien has passed the Commission on Graduates of Foreign Nursing Schools (CGFN)
Examination; or that the alien holds a full and unrestricted (permanent) license to practice
nursing in the State of intended employment.
A memorandum' dated December 20, 2002 from Thomas Cook , Office of Adjudications , INS (now CIS) , added
an additional examination as an acceptable criteria for Schedule A certification. The memorandum instructed
Service Centers to accept a certified copy of a letter from the state of' intended employment stating that the
beneficiary has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) and is
. eligible to receive a license to practice nurs ing in that state in lieu of either having passed the CGFNS
examination or currently having a license to practice nursing in that state.
!' "
In the instant case , the record contains he) evidence indicating that as of the priority date of December 5, 2003, the
beneficiary had passed the CGFNS examination or the NCLEX-RN examination , and no evidence indicating that
the beneficiary held a full and unrestricted license to practice nursing in California as of the priority date .'
Lacking such evidence, the record fails to establish that the beneficiary is qualified for Schedule A designation.
See 20 C.F.R. § 656.l0(a)(2). A'petitioner must establish the beneficiary's eligibility forthe visa classification .
at the time of filing, A petition cannot be approved at a future date after eligibility is established under a new
set of facts. Matter ofKatigbak, 14 I&N Dec . 45, 49 (Comm . 1971).· .
Thus , the evidence submitted does not establish that the beneficiary qualifies for an occupation listed in
Schedule A, Group 1.
Beyond the decision of the director , the petitioner has not shown that the beneficiary possessed the
qualifications listed on Form ETA 750.4 The Form ETA 750 states in block 14 that the minimum education for
. the offered position is a bachelor of science in nursing. The record contains a copy of the beneficiary 's diploma
showing a degree of Bachelor of Science in Nursing granted on April 3 , 1993 by Mary Chiles College ,
Manila , Philippines , with accompanying course transcripts. The transcripts indicate that the beneficiary's
diploma represents four years of full-time study. However , the record lacks an educational evaluation of
whether the beneficiary 's bachelor's degree is equivalent to a United States bachelor 's degree.
The Form ETA 750 provides no criteria by which to evaluate a 'beneficiary 's foreign education for
equivalency to a United States bachelor's degree. "If the petition is for a professional, the petition must be
accompanied by evidence that the alien holds a .United States baccalaureate degree or a foreign equivalent
degree . . . ." 8 C.F.R. § 204.5(l)(3)(C) . .Any additional proceedings should address this issue. .
The petition will be denied for the above stated reasons, with each considered as .an independent and
alternative basis for denial. In visa petit ion proceedings , the burden of proving eligibility for the benefit
3 While the petitioner asserts that the beneficiary passed the NCLEX~RN examination prior to receiving her
registered nurse license from the California Board of Registered Nursing, the petitioner submitted no evidence '
to establish that the beneficiary passed the examination prior to December 5,2003. The evidence establishes
only that the beneficiary obtained her full and unrestricted registered nurse license in the State of California on
December 10, 2004 , over one year after the priority date. .
4 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 Enterpri ses, Inc. v, United States, 2~9 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001) , affd. 345 F.3d 683
(9th Cir. 2003) ; see also Dor v. INS, 891 F.2d 997 ,1002 n. 9 (2d C ir. 1989)(noting thatthe AAOreviews
cases on a de novo basis) .
Page 5
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.