dismissed EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-C-V-H-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
/ 
DATE: APR. 27,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an elderly home care provider, 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. See Immigration and Nationality 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 two years of training or experience. J 
The Director of the Nebraska Service Center denied the petition. The Director determined that the 
petition was not accompanied by a prevailing wage determination (PWD) from the U.S. Department 
of Labor (DOL)'s National Processing Center (NPC), as required for Schedule A occupations like 
that in the instant petition. The Director found that the PWD in the record, which was submitted in 
response to the Director's request for evidence (RFE), is for another business entity (the Petitioner's 
parent) and was not valid at the time the petition and accompanying labor certification were filed. 
On appeal, the Petitioner submits a new PWD for the Petitioner and asserts that the petition should 
now 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 one codified at 20 C.F.R. 
§ 656.5(a) for which the 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 foreign nationals in such 
occupations. The current list of Schedule A occupations includes professional nurses. !d. 
Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain a 
certified ETA Form 9089, Application for Permanent Employment Certification, 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 an uncertified ETA Form 9089 in duplicate. See 8 C.F.R. § 204.5(a)(2), 
(1)(3)(i); see also 20 C.F.R. § 656.15. 
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Matter of A-C-V-H-, Inc. 
Additionally, the petitioner must obtain a PWD (Form ETA 9141, Application for Prevailing Wage 
Determination) from the NPC and file the petition and accompanying ETA Form 9089 with USCIS 
within the validity period specified on the PWD. See 20 C.F.R. § 656.40(a), (c). 
II. ANALYSIS 
A. Prevailing Wage Determination 
The petition and ETA Form 9089 were filed on February 2, 2016. In a subsequent RFE the Director 
requested the Petitioner to submit the PWD obtained from the NPC. The Petitioner responded to the 
RFE with a copy of a PWD obtained by the Petitioner's parent company, with a 
validity period of May 11, 2016, to August 9, 2016. Thus, the PWD was not obtained by the 
Petitioner and was not valid at the time the petition and labor certification were filed on February 2, 
2016. The Director denied the petition on the ground that it was not accompanied by a proper labor 
certification application. 
On appeal .the Petitioner has submitted its own PWD from the NPC with a validity period of 
December 12, 2016, to June 30, 2017. While this PWD applies to the Petitioner, it was not valid at 
the time the petition was filed on February 2, 2016. As such, it does not meet the timing requirement 
of 20 C.F.R. § 656.40(c). A petitioner must establish eligibility at the time of filing. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). A petitioner may not make material changes to a 
petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Cotnm'r 1988). 
The Director properly denied the petition because the Petitioner did not submit a valid PWD in 
accordance with 20 C.F.R. § 656.40. The Petitioner has not overcome the lack of a valid PWD on 
appeal. Accordingly, we will dismiss the appeal. 
B. Ability to Pay 
Although not mentioned by the Director's decision, we note that the Petitioner has not established its 
ability to pay the proffered wage of the job offered, $28 per hour (or $58,240 per year based on a 
work year of 2080 hours). A petitioner must establish its continuing ability to pay the proffered 
wage from the priority date of the petition - in this case, February 2, 2016 - to the date the 
Beneficiary obtains lawful permanent residence. See 8 C.F.R. § 204.5(g)(2). The regulation 
specifies that a petitioner must submit either annual reports, or federal tax returns, or audited 
financial statements as evidence of its ability to pay. In this case the Petitioner submitted a copy of 
its federal income tax return for the one-year time period of October 1, 2013, to September 30,2014. 
In the RFE the Director requested more recent evidence of the Petitioner's ability to pay the 
proffered wage- specifically, its annual report, or U.S. tax return, or audited financial statement for 
2014 or 2015, or a statement from the Petitioner's financial officer if the company has 100 or more 
employees. The Petitioner did not submit any of this evidence. Instead, in response to the RFE the 
Petitioner submitted the 2014 annual report of its parent company, which is not the 
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Matter of A-C-V-H-, Inc. 
Petitioner in this proceeding. Thus, the only evidence in the record of the Petitioner's ability to pay 
is for a 1-year time period that ended 16 months before the priority date of the petition. This 
evidence does not establish the Petitioner's continuing ability to pay the proffered wage from the 
priority date onward. For this reason as well, the petition cannot be approved. 
III. CONCLUSION 
The Petitioner has not submitted a valid prevailing wage determination and has not established its 
continuing ability to pay the proffered wage from the priority date up to the present. For both of 
these reasons the appeal will be dismissed. · 
ORDER: The appeal is dismissed. 
Cite as Matter of A-C-V-H-, Inc., ID# 278017 (AAO Apr. 27, 2017) 
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