dismissed EB-3 Case: Nursing

MATTER OF A-C-V-H-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 27,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an elderly home care business, seeks to employ the Beneficiary as a registered nurse. 
It requests classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification and filed for the Beneficiary as a Schedule A nurse. See Immigration and Nationality 
Act (the Act), section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This employment-based 
immigrant classification allows a U.S. employer to sponsor a foreign national for lawful permanent 
resident status to work in a position that requires at least 2 years of training or experience. 
The Director, Nebraska Service Center, concluded that the Form I-140 petition and application for 
labor certification were incomplete because the filing was not accompanied by a valid prevailing 
wage determination. Specifically, the Director noted that the Petitioner submitted a prevailing wage 
determination that was issued to a different company than the petitioning company, and that the 
determination was not valid when the current petition was submitted. Accordingly, the Director 
denied the petition. 
The matter is now before us on appeal. The Petitioner submits a new prevailing wage determination, 
and asserts that since this new determination should be accepted and the petition should be approved. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
The petition is for a Schedule A occupation. A Schedule A occupation is an occupation codified at 
20 C.F.R. § 656.5(a) for which the U.S. Department of Labor (DOL) has determined that there are 
not sufficient U.S. workers who are able, willing, qualified and available and that the wages and 
working conditions of similarly employed U.S. workers will not be adversely affected by the 
employment of aliens in such occupations. The current list of Schedule A occupations includes 
professional nurses and physical therapists. !d. 
Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain a 
certified ETA Form 9089 from the DOL prior to filing the petition with U.S. Citizenship and 
Immigration Services (USCIS). Instead, the petition is filed directly with USCIS with a duplicate 
uncertified ETA Form 9089. See 8 C.F.R. §§ 204.5(a)(2) and (1)(3)(i); see also 20 C.F.R. § 656.15. 
If the Schedule A occupation is a professional nurse, the petitioner must establish that the 
Matter of A-C-V-H-, Inc. 
beneficiary has a Certificate from the Commission on Graduates of Foreign Nursing Schools 
(CGFNS); a permanent, full and unrestricted license to practice professional nursing in the state of 
intended employment; or passed the National Council Licensure Examination for Registered Nurses 
(NCLEX-RN). See 20 C.F.R. § 656.5(a)(2). 
Petitions for Schedule A occupations must also contain evidence establishing that the employer 
provided its U.S. workers with notice of the filing of an ETA Form 9089 (Notice) as prescribed by 
20 C.F.R. § 656.10(d), and a valid prevailing wage determination (PWD) obtained in accordance 
with 20 C.F.R. § 656.40 and 20 C.F.R. § 656.41. See 20 C.F.R. § 656.15(b)(2). 
For the Notice requirement, the employer must provide notice of the tiling of an ETA Form 9089 to 
any bargaining representative for the occupation, or, if there is no bargaining representative, by 
posted notice to its employees at the location of the intended employment. See 20 C.F.R. 
§ 656.10(d)(l). 
The regulation at 20 C.F.R. § 656.10(d)(3) states that the Notice 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. 
Notices for Schedule A occupations must also contain a description of the job offered and the rate of 
pay. See 20 C.F.R. § 656.10(d)(6). 
In cases where there is no bargaining representative, the Notice must be posted for at least 10 
consecutive business days, and it must be clearly visible and unobstructed while posted. 20 C.F.R. 
§ 656.10(d)(l)(ii). The Notice must be posted in a conspicuous place where the employer's U.S. 
workers can readily read it on their way to or from their place of employment. Id. In addition, the 
Notice must be published "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." Jd. The satisfaction of the Notice requirement may be documented by 
"providing a copy of the posted notice and stating where it was posted, and by providing copies of 
all the in-house media" used to distribute the Notice. Id. 
II. ANALYSIS 
The priority date of a Schedule A petition is the date the petition is properly filed with USCIS. 
8 C.F.R. § 204.5(d). In this case, the priority date is January 14, 2016. On the ETA Form 9089, 
Application for Permanent Employment Certification, the Petitioner indicated that the prevailing 
wage was $27.65 per hour, but did not provide a prevailing wage tracking number as requested at 
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Matter of A-C-V-H-, Inc. 
Line F.l. The Petitioner did not reflect the proffered wage on the ETA Form 9089, Line G.l., but 
listed the proffered wage on the Form I-140 petition as $32.75 per hour. 
A. Prevailing Wage Determination 
As noted above, in order for the petition to be approved, the petitioner must submit a PWD that 
complies with the requirements of 20 C.F.R. § 656.40. See also 20 C.F.R. § 656.15(b)(l). The 
regulation at 20 C.F.R. § 656.40(c) states that a Schedule A application must be filed within the 
validity period of the PWD. 
In the instant case, the initial petition was supported by only a printout from the Online 
Wage Library. The Director therefore found that the current petition was not accompanied by a 
valid PWD, as required by regulation, and issued a request for evidence (RFE), instructing the 
Petitioner to submit a PWD that was valid on the January 16, 2016, priority date. The Petitioner 
responded to the RFE by submitting a copy of a PWD that was issued to a company other than the 
Petitioner, that was issued for a job with different job duties than the job offered to the current 
Beneficiary, and that was valid from May 11, 2016, until August 9, 2016. On August 23, 2016, the 
Director concluded that, as the PWD had validity dates after the priority date here and was for a 
separate company, the petition was not accompanied by a valid PWD as required by regulation and 
denied the petition. 
On appeal, the Petitioner points to the printout from the Online Wage Library and states that this 
information regarding prevailing wage rates was submitted "in accordance to established 
regulations." Howev;er, while this printout is a collection of data on wage rates that DOL would 
utilize to determine the wage, it is not a Prevailing Wage Determination issued by DOL which is 
expressly required by 20 C.F .R. § 656.40 and 20 C.F .R. § 656.15(b )(I). 
Also on appeal, the Petitioner submits a new PWD that was issued to the petitioning company, and 
that is valid from December 12, 2016, until June 30, 2017. However, as this PWD was not valid on 
the January 16,2016, priority date, it cannot satisfy the regulatory requirement. 
The Petitioner urges us to "consider the impossibility of obtaining a Prevailing Wage Determination 
for something filed in the past." However, the regulations are clear that the Petitioner must obtain a 
PWD before filing the petition. A petitioner must establish eligibility at the time of filing. See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). For the reasons set forth above, the 
Petitioner did not submit a valid PWD in support of the current petition. 
· B. Posting Notice Requirement 
Beyond the decision of the Director, the Petitioner has also not established that it provided its U.S. 
workers with proper notice of the filing of an ETA Form 9089 (Notice) in the time period before 
filing as prescribed by 20 C.F.R. § 656.10(d). 
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Matter of A-C-V-H-, Inc. 
In the instant case, there is no evidence in the record of a bargaining representative for the 
occupation. The Petitioner submitted a copy of a Notice of Job Opening dated June 29, 2016. The 
Petitioner affirmed that the notice was visibl~ and unobstructed while posted, aqd that it was posted 
in a conspicuous place for at least 10 co~secutive business days beginning on December I 0, 2015. 
As the Form I-140 petition and the application for Schedule A designation were filed on January I4, 
20I6, a Notice posted December 10, 2015, and posted for IO consecutive business days could not 
satisfy the regulatory requirement that the posting be completed between 30 and I80 days of the 
filing.1 Therefore, the Notice does not satisfy the Notice requirements as prescribed py 20 C.P.R. 
§ 656.10(d). Accordingly, the petition must also be denied for this reason. 
III. CONCLUSION 
In summary, the Petitioner did not submit a valid prevailing wage determination in accordance with 
20 C.P.R. § 656.40 and did l)Ot satisfy the requirements for providing a proper notice of the filing of 
an ETA Form 9089 in accordance with 20 C.P.R.§ 656.10(d). 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 29I ofthe Act, 8 U.S.C. § 136I; See 
Matter of Brantigan, II I&N Dec. 493 (BIA 1966); Matter of Otiende, 26 I&N Dec. I27, 128 (BIA 
2013). The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-V-H-, Inc., ID# 268680 (AAO Jan. 27, 2017) 
See DOL Frequently asked questions. https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q! 169 (accessed 
January 26, 20 17). ~ 
Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to 
filing? 
Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for 
interested persons to submit, if they so choose, documentary evidence bearing on the application. 
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