dismissed EB-3 Case: Nursing

PUBLIC COPY 
U.S. Department of ffomeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
ba 
section 203(b) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b) 
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. 
~bbert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: the Director, Nebraska Sefiice Center, denied the preference visa petition. The petition is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a long-term care management business. It seeks to employ the beneficiary permanently in the 
United States as a regstered nurse. The petitioner asserts that the beneficiary qualifies for blanket labor 
certification pursuant to 20 C.F.R. 5 656.10(a), commonly referred to as Schedule A. The director determined 
that the petitioner had not established that it had posted the notice of filing of the Application for Alien 
Employment Certification (ETA 750) in compliance with 20 C.F.R. $ 656.20(g)(l) and (g)(8) and denied the 
petition accordingly. 
The record shows that the appeal is properly filed, 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 this decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original April 6, 2005 denial, the single issue in this case is whether or not the 
petitioner has established that it posted the notice of filing of ETA 750 in compliance with 20 C.F.R. $ 656.(g)(l) 
and (g)(8). 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. 5 1153(b)(3)(A)(i), 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 slulled labor (requiring at least two years training or experience), 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 on December 1, 2004. Aliens who 
will be permanently employed as professional nurses are listed on Schedule A as occupations set forth at 
20 C.F.R. 3 656.10 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. Also, according to 20 C.F.R. 5 656.10, aliens who will be 
permanently employed as professional nurses must have (1) passed the Commission on Graduates of Foreign 
Nursing Schools (CGFNS) Examination, or (2) hold a full and unrestricted license to practice professional 
nursing in the state of intended employment. 
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 CIS office. Pursuant to 
20 C.F.R. 5 656.22, 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. 5 656.20(g)(3). 
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 
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evidence in the record, including new evidence properly submitted upon appeal'. Relevant evidence submitted on 
appeal includes a copy of a posting notice entitled Pre-CertiJication Notice Under the US Dept of Labor Schedule 
A, Group I. The notice was posted on April 11, 2005. Other relevant evidence includes a copy of a Labor 
Condition Application. The record does not contain any other evidence relevant to the petitioner's petition for 
ths beneficiary. 
Under 20 C.F.R. 656.20, the regulations require the following: 
In applications filed under 656.21 (Basic Process), 656.21a (Special Handling) and 656.22 
(Schedule A), the employer shall document that notice of the filing of the Application for 
Alien Employment Certification was provided: 
(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. 
(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 from 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 516.4 or occupational safety and health notices required by 20 
CFR 1903.2(a). 
On appeal, the petitioner states that "in response to the denial notice for the immigrant petition that we filed, we 
have posted a new notice (see attached) in order to satisfy the requirement for a Schedule A Labor Certification. 
In this connection, we have filed this appeal and we hope to have ths petitions [sic] be approved as soon as 
possible." 
A petitioner must establish the elements for the approval of the petition at the time of filing. Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant case, the notice of filing was not posted until 
after the filing of the petition; therefore, qualified U.S. workers were not given the opportunity to apply for 
this position. 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 working 
conditions of United States workers similarly employed will not be adversely affected by the employment of 
aliens in Schedule A occupations2. The notice must be posted at least ten days prior to the filing of the 
petition. 
1 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
are incorporated into the regulations by the regulation at 8 C.F.R. 5 103.2(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 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
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, 199 1). 
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After a review of the record, it is concluded that the petitioner has not established that it had posted the notice 
of filing of the Application for Alien Employment Certification (ETA 750) in compliance with 20 C.F.R. 9 
656.20(g)(l) and (g)(8). 
For the reasons discussed above, the assertions of counsel on appeal and the evidence submitted on appeal do 
not overcome the decision of the director. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. However, this 
dismissal is without prejudice. The petitioner may post per the current requirements and file a new petition 
when all the current requirements have been met. See 20 C.F.R. 3 656. 
ORDER: The appeal is dismissed