dismissed EB-3 Case: Nursing

identifying data deleted to 
prevent clearly unwarranted 
inmian ofpasoasl privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
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. 5 1 153(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. 
f .'.- *.- 
Rbbert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The director of the Texas Service Center denied the immigrant visa petition and certified her 
decision to the Administrative Appeals Office (AAO) on appeal. The director's decision will be affirmed. 
The petition will remain denied. 
The petitioner is a hospital. It seeks to sponsor the beneficiary in the United States as a registered nurse 
supervisor. The petitioner asserts that the beneficiary qualifies for blanket labor certification pursuant to 20 
C.F.R. $ 656.10, Schedule A, Group I. The director denied the petition after determining that the posting 
notice was deficient. 
The petitioner did not submit a brief or evidence in connection with the certification. 
Section 203(b)(3) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. $ 1153(b)(3), 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 or unskilled labor, not of a temporary or seasonal 
nature, for which qualified workers are not available in the United States. This section also provides for the 
granting of preference classification to qualified immigrants who hold baccalaureate degrees and are members 
of the professions. 
In this case, the petitioner filed an Immigrant Petition for Alien Worker (Form 1-140) for classification of the 
beneficiary under section 203(b)(3)(A)(i) of the Act as a registered nurse supervisor on November 8, 2005 
with accompanying ETA Form 9089, Application for Permanent Employment Certification. 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 (DOL) 
regulations concerning labor certifications went into effect on March 28, 2005. The new regulations are 
referred to by DOL by the abbreviation PERM. See 69 Fed. Reg. 77325, 77326 @ec. 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. Thus, PERM applies to the instant case. 
Aliens who will be permanently employed as professional nurses are listed on Schedule A as occupations set 
forth at 20 C.F.R. 4 656.5 for which the Director of the United States Employment Service 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. Also, according to 20 C.F.R. $ 656.5, aliens who will be 
permanently employed as professional nurses must have (1) passed the Commission on Graduates of Foreign 
Nursing Schools (CGFNS) Examination, (2) hold a full and unrestricted license to practice professional 
nursing in the [sltate of intended employment, or (3) have passed the National Council Licensure 
Examination for Registered Nurses (NCLEX-RN) administered by the National Council of State Boards of 
Nursing. 
An employer shall apply for a labor certification for a Schedule A occupation by filing an Application for Alien 
Employment Certification (Form ETA-750 at Part A) in duplicate with the appropriate Citizenship and 
Immigration Services (CIS) office. The Application for Alien Employment Certification shall include: 
1. 
 Evidence of prearranged employment for the alien beneficiary by having an employer complete and 
sign the job offer description portion of the application form. 
2. 
 Evidence that notice of filing the Application for Alien Employment Certification was provided to the 
bargaining representative or the employer's employees as prescribed in 20 C.F.R. $ 656.10(d). 
Page 3 
The only issue in this case is whether or not the record of proceeding contains a posting notice that complies with 
regulatory requirements1. The AAO concurs with the director that the posting notice contained in the record of 
proceeding fails to comply with regulatory requirements. 
Under 20 C.F.R. $ 656.10(d)(l), the regulations require the following: 
In applications filed under $9 656.15 (Schedule A), 656.16 (Sheepherders), 656.17 (Basic 
Process), 656.18 (College and University Teachers), and 656.21 (Supervised Recruitment) and 
656.22 (Schedule A), the employer must give notice of the filing of the Application for 
Permanent Employment CertiJication and be able to document that notice was provided, if 
requested by the Certifjrlng Officer, as follows: 
(1) 
 To the bargaining representative(s) (if any) of the employer's employees in the 
occupational classification for which certification of the job opportunity is sought 
in the employer's location(s) in the area of intended employment. Documentation 
may consist of a copy of the letter and a copy of the Application for Permanent 
Employment Certification form that was sent to the bargaining representative. 
(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 whlle 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 
1 
 The AAO reviewed the other requirements under Schedule A applications under its de novo review authority 
and determined that the petitioner has established its ability to pay the proffered wage in accordance with 
8 C.F.R. $ 204.5(g)(2), that the beneficiary is qualified to perform the duties of the proffered position, that the 
wage offered in this case meets the prevailing wage rate for nursing positions in Broward County, Florida 
according to DOL's online wage library in accordance with 20 C.F.R. §§ 656.15 and 656.40, and that the 
position offered involves permanent, full-time employment. However, it is noted that the petitioner failed to 
submit a properly completed prevailing wage determination issued by the State Workforce Agency (SWA) 
having jurisdiction over the proprosed area of the proffered position which does not conform with 20 C.F.R. tj 
656.15(b)(i) although the AAO confirmed that the proffered wage meets the prevailing wage rate. The 
regulation requires the petitioner to submit a properly completed SWA with an ending validity date not less 
than 90 days or more than 1 year from the date of filing. See also "Current Processing of pending Forms I- 
140 for a Schedule AlGroup I or I1 Occupations Missing Evidence of Compliance with [DOL] 
NotificationlPosting Requirements and Guidance Effective March 28, 2005 pursuant to new DOL regulations 
. . ." issued by William R. Yates, Associate Director of Operations of CIS on September 23, 2005. The 
authority to adjudicate appeals is delegated to the AAO by the Secretary of Homeland Security pursuant to the 
authority vested in him through the Homeland Security Act of 2002, Pub. L. 107-296. 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). 
Page 4 
notices required by 29 CFR 516.4 or occupational safety and health notices 
required by 29 CFR 1903.2(a). . . . 
(Emphasis in italics in original. Emphasis with underline added). 
Additionally, 20 C.F.R. 8 656.20(d)(3) requires the following: 
The notice of the filing of an Application for Permanent Employment Cert$cation 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; 
(iii) 
 Provide the address of the appropriate Certifying Officer; and 
(iv) 
 Be provided between 30 and 180 days before filing the application. 
With the initial petition, the petitioner submitted a posting notice that meets all of the requirements of 20 C.F.R. 
$9 656.10(d)(3)(i) through (v), (d)(4) and 656.17(f). The director denied the petition on December 30, 2005 
stating that there was no evidence that the petitioner posted the posting notice for ten consecutive business days. 
The purpose of requiring the employer to post notice of the job opportunity is to provide U.S. workers with a 
meaningful opportunity to compete for the job and to assure that the wages and workmg conditions of United 
States workers similarly employed will not be adversely affected by the employment of aliens in Schedule A 
occ~~ations.~ The AAO concurs with the director's decision. The director cited 29 C.F.R. 5 2510.3-102(e) for 
DOL's definition of "business day" as "any day other than a Saturday, Sunday or any day designated as a holiday 
by the Federal Government." A review of the discussion of changes made to the permanent labor certification 
application process from "Labor Certification for the Permanent Employment of Aliens in the United States: 
Implementation of New System" illustrates that the drafters of PERM changed the old requirement from "10 
consecutive days" to "10 consecutive business days" to expand the notice requirement for petitioning entity's 
employers (emphasis added). See 69 Fed. Reg. 77326, 77339 (December 27, 2004). The regulations do not 
provide exemptions for entities whose business operations continue on weekends and holidays. Therefore, the 
director correctly interpreted PERM'S duration requirement for the posting notice. 
Thus, the AAO affirms the director's decision that the petitioner has failed to submit a regulatory-prescribed 
posting notice that conforms to the regulatory requirements for Schedule A, Group I nurse petitions. 
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 8 1361. Here, the petitioner has not sustained that burden. 
The denial of ths petition is without prejudice to the filing of a new petition by the petitioner accompanied by the 
appropriate supporting evidence and fee. 
ORDER: 
 The director's decision on December 30,2005 is affirmed. The petition remains denied. 
2 
 See the Immigration Act of 1990, Pub.L. No. 101-649, 122(b)(l), 1990 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).