dismissed EB-3 Case: Nursing

ldentiryfng data deleted to 
pmven9 clearPy unwarranted 
invasion of persons8 privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
bd 
FILE: WAC 04 029 5 1899 Office: CALIFORNIA SERVICE CENTER Date: &4R 0 CJ 7~06 
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. 4 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 029 5 1899 
Page 2 
DISCUSSION: The Director, California Service Center, denied the preference visa petition that is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a medical staffing service. 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. fj 656.10, Schedule A, Group I. As required by statute, a Form ETA 750, Application 
for Alien Employment Certification accompanied the petition. The director determined that the petitioner had 
not established that it had filed the posting notice for the proffered position as prescribed by 20 C.F.R. 
fj 656.20(g). Thus, the director determined that the petitioner had not demonstrated that the position qualified 
for Schedule A certification, and denied the petition accordingly. 
On appeal, the petitioner submits a brief and no additional evidence. 
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 on November 12, 2003. Aliens who 
will be permanently employed as professional nurses are listed on Schedule A as occupations set forth at 
20 C.F.R. fj 656.10 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 worlung conditions of 
United States workers similarly employed. 
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. 
0 656.20(g)(3). 
The regulation at 20 C.F.R. fj 656.20(g)(l) provides, in pertinent part: 
In applications filed under fj 656.21 (Basic Process), fj 656.21a (Special Handling) and fj 656.22 
(Schedule A), the employer shall document that notice of the filing of the Application for Alien 
Employment Certification was provided: 
(i) 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. 
(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 shall be posted for at least 10 consecutive days. The 
notice shall be clearly visible and unobstructed while posted and shall be posted in conspicuous places, 
where the employer's U.S. workers can readily read the posted notice on their way to or fi-om their 
place of employment. Appropriate locations for posting notices of the job opportunity include, but are 
not limited to, locations in the immediate vicinity of the wage and hour notices required by 20 CFR 
5 16.4 or occupational safety and health notices required by 20 CFR 1903.2(a). 
WAC 04 029 5 1899 
Page 3 
With the petition, the petitioner submitted a notice dated November 6,2003, and signed by 
Requirement," stated the following: 
ProprietorICFO, (Ms. entitled "Employer's Certification, Re Compliance with 
I hereby certify that a job notice for the position of Registered Nurse was posted from October 15,2003 
to present. 
The job notice was posted in conspicuous places within the vicinity of our staffing agency. The job 
notice remained clearly visible and unobstructed during the entire period of posting. 
On October 22, 2004, the director denied the petition. In his decision, the director stated that the petitioner 
had not submitted evidence that the job posting was posted in accordance with 20 C.F.R. § 656.20(g)(l), and 
that the petitioner had indicated in the certification that the notice was posted at the petitioner's staffing 
agency rather than where "the beneficiary would actually be working," i.e., the healthcare facilities that the 
petitioner services. The director further stated that Citizenship and Immigration Services (CIS) interprets the 
reference at 20 C.F.R. 656.20(g)(l)(ii) to mean the place of physical employment, which would be "the 
healthcare facilities where the beneficiary would perform services as a registered nurse." The director further 
noted that in the instant petition, the place of physical employment would be the healthcare facilities where 
the beneficiary would perform services as a registered nurse. The director then determined that the record 
indicated that the notice of filing had not been posted at the correct location. The director also stated that the 
notice had to be posted at least ten consecutive days prior to filing with the appropriate information contained 
in the notice, and that 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. Corn. 1971.), and Matter of Izumii, 22 I&N Dec. 169 (Assoc. Comm., 
Examinations 1998). 
On appeal, counsel asserts that the employer's premises, rather than the healthcare facilities it services, were 
the proper place for posting the job notice because the petitioner is the employer. As a staffing agency, the 
petitioner "deploys medical positions, including Registered Nurses, to various healthcare facilities or 
hospitals." Counsel asserts that the petitioner's business premises were "readily available for all the other 
employers to see [the job notice] since they report to the said company's location on a regular basis." Further, 
counsel asserts that each of the petitioner's client healthcare facilities "have their own set of hiring 
requirements.. .and do not want to go through the hiring processes. It is more convenient for the facilities to 
request staffing agencies to deploy needed services," counsel states. Moreover, the healthcare facilities 
generally don't permit posting of job opening notices on their premises, he states. 
With the petition, counsel submitted a letter from Ms. ated November 4, 2003, advising the 
director, "[Tlhere is no bargaining representative representing professional nurses at this institution." 
The beneficiary will not be employed at the petitioner's offices but at some other location. The posting was 
not, then, posted at the "facility or location of employment," as required by 20 C.F.R. fj 656.20(g)(l). The 
petitioner has indicated that the beneficiary will work at various hospitals and facilities, without greater 
specificity. The petitioner must post the notice at the physical location where the beneficiary would work, and in 
doing so, indicate where that location will actually be. Because it is not clear that the posting notice was posted at 
the actual "facility or location of the employment," the petitioner cannot establish that it has complied with the 
notice requirements at 20 C.F.R. fj 656.20(g)(l). If the petitioner merely posted the notice at its administrative 
WAC 04 029 5 1899 
Page 4 
office(s), the petitioner has not complied with this requirement. 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 worlung conditions of United States workers similarly employed will not be 
adversely affected by the employment of aliens in Schedule A occupations.' In the instant petition, it is noted 
those "similarly employed" would be nurses in the client hospitals. 
The petitioner failed to demonstrate that a notice of the proffered position was posted in accordance with 20 
C.F.R. 8 656.20(g)(l). 
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. 
 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
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).