dismissed EB-3 Case: Nursing

MATTER OF T-H-C-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 18, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a horne healthcare agency, seeks to employ the Beneficiary as a registered nurse. It 
requests classification of the Beneficiary as a professional under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) § 203(b)(3)(A)(ii), 8 U.S.C. § 
1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a foreign national for lawful permanent resident status who holds a baccalaureate degree and 
is a member of the professions. 
The Director, Texas Service Center, denied the petition. The Director concluded that the minimum 
requirements of the offered position were less than a bachelor's degree and that the position did not 
qualify for professional classification. 
The matter is now before us on appeal. On appeal, the Petitioner states that the Director incorrectly 
concluded that the Beneficiary is not fully qualified for the benefit sought. The Petitioner also states 
that the Director erred in concluding that the position offered was not eligible for classification as a 
professional. Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
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 a 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, a petitioner must establish that the beneficiary 
has a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); a 
Matter ofT-H-C-, Inc. 
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). 
We note that the Director did not conclude that the Beneficiary was not qualified for the instant 
position, as stated by the Petitioner. The Director stated, "The issue here is not whether the 
beneficiary qualifies for the position offered but whether the position is eligible for the initially 
selected classification as a professional." 
The regulation at 8 C.F.R. § 204.5(1)(3)(i) refers to the "professional worker" category and states 
that "[t]he job offer portion of an individual labor certification, Schedule A application, or Pilot 
Program application ... must demonstrate that the job requires the minimum of a ·baccalaureate 
degree." 
On the ETA Form 9089, both the primary and the alternative requirements listed in Part H constitute 
the minimum requirements for the position offered. In determining whether the position offered 
qualifies for classification as a professional position, USCIS must ensure that both the primary and 
alternate requirements of the offered position meet the requirements for professional classification. 
In this case, the Petitioner submitted an uncertified ETA Form 9089 to USCIS with the Form I-140 
as required for Schedule A occupations. Part H.4 of the ETA Form 9089 states that an Associate's 
degree in Nursing was the minimum requirement for the position offered. Part H.14 further states as 
specific skills or other requirements that an "Associate or Bachelor's degree in Nursing and valid 
Texas Nursing License" is required. This demonstrates that the position offered does not meet the 
requirement of 8 C.F.R. § 204.5(1)(3)(i) for professional classification because the job offer portion 
of the Schedule A application indicates that an associate's degree, less than a bachelor's degree, is an 
acceptable minimum requirement for the position offered. 
We note that the Director issued a request for evidence on April 15, 2015, indicating that the 
Petitioner had selected the "professional" classification on the petition but that the evidence 
submitted supported the "skilled worker" classification. Accordingly, the Director provided the 
Petitioner an opportunity to clarify which classification it sought. In response, the Petitioner 
submitted a corrected page two of the uncertified ETA Form 9089 to amend Part H.4, indicating that 
a Bachelor's degree in Nursing was the minimum requirement for the position offered.1 The 
Petitioner did not submit any evidence demonstrating that the corrected ETA Form 9089 was 
reviewed and signed. See 8 C.F.R. § 204.5(1)(3)(i) (To apply for Schedule A designation ... a fully 
executed uncertified [ETA Form 9089] in duplicate must accompany the petition). Further, Part 
H.14 on page three was not amended and still indicates an Associate's or Bachelor's degree in 
Nursing as the minimum requirement. 
1 We note that the Director gave the Petitioner an opportunity to request classification under the skilled worker category 
not to amend the ETA Form 9089. 
2 
Matter ofT-H-C-, Inc. 
II. CONCLUSION 
For the foregoing reasons, we conclude that the Petitioner has not established that the position 
offered meets the requirements for classification under the professional category. 
Although not a basis for this decision, we note that the record does not contain any evidence of the 
Petitioner's ability to pay the proffered wage to the Beneficiary from the priority date of 
September 25, 2014, onward. The Petitioner must submit evidence of its ability to pay the proffered 
wage as of the priority date with any further filings. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-H-C-, Inc., ID# 16991 (AAO Apr. 18, 2016) 
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