dismissed EB-3 Case: Nursing

MATTER OF C-H-L-A-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 18, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a children's hospital, seeks to employ the Beneficiary as a registered nurse. It requests 
classification of the Beneficiary as a professional under the third preference immigrant category. See 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § l 153(b)(3)(A)(ii). 
This employment-based "EB-3" immigrant classification allows a U.S. employer to sponsor a 
professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition on the ground that it was not 
accompanied by a proper application for labor certification. Specifically, the Director found that the 
prevailing wage determination (PWD) submitted as part of the Petitioner's labor certification 
application was no longer valid at the time the petition was filed. 
On appeal, the Petitioner asserts that the PWD was valid at the time it was filed with the labor 
certification application and the petition, that the petition was therefore properly filed, and that it 
should be approved. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
This petition is for a Schedule A occupation. A Schedule A occupation is one codified at 20 C.F.R. 
§ 656.S(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 aliens in such occupations. The 
current list of Schedule A occupations includes professional nurses. Id. Petitions for Schedule A 
occupations do not require the employer to test the labor market and obtain a certified ET A Form 9089 
(labor certification) from the DOL prior to filing its petition with USCIS. Instead, the petition is filed 
directly with USCIS with an uncertified ETA Form 9089 (labor certification application) in duplicate. 
See 8 C.F.R. §§ 204.5(a)(2) and (k)(4); see also 20 C.F.R. § 656.15. 
As part of its labor certification application for a Schedule A occupation the employer must also 
obtain a PWD (Form ETA 9141) from the DOL's National Processing Center (NPC). See 20 C.F.R. 
§ 656. l 5(b )(1 ). The labor certification application must be filed with USCIS, along with the petition 
Matter ofC-H-L-A-
for the Schedule A occupation, within the validity period specified on the PWD. See 20 C.F.R. 
§ 656.40(c 
II. ANALYSIS 
The issue in this case is whether the Form 1-140, Immigrant Petition for Alien Worker (I-140 
petition), was filed with a valid PWD. The regulation at 20 C.F.R. § 656.40(c) states as follows with 
regard to the validity period of a PWD: 
, The National Processing Center must specify the validity period of the prevailing 
wage, which in no event may be less than 90 days or more than 1 year from the 
determination date. To use a prevailing wage rate provided by the NPC, employers 
must file their applications or begin the recruitment period required by §§ 656.17(e) 
or 656.21 of this part within the validity period specified by the NPC. 
In this case, the Petitioner filed its I-140 petition on October 20, 2017. The petlt10n was 
accompanied by a labor certification application and a PWD that was valid from May 12, 2017, to 
August 10, 2017. The Director found that the PWD was no longer valid when the labor certification 
application and the I-140 petition were filed with USCIS. Accordingly, the Director denied the 
petition for lack of the required PWD. 
On appeal the Petitioner asserts that its PWD was valid at the time the 1-140 petition and the labor 
certification application were filed because it posted the notice of filing required by 20 C.F.R. § 
656. lO(d) during the validity period of the PWD. Essentially, the Petitioner argues that by posting 
the required notice of filing it began recruitment during the validity period of the PWD and therefore 
meets the requirements of20 C.F.R. § 656.40. 
However, the notice of filing, governed by 20 C.F .R. § 656.10( d), is not recruitment as described in 
20 C.F.R. § 656. l 7(e) or 20 C.F.R. § 656.21. Neither of these regulations - 20 C.F.R. § 656.17(e) 
(Required pre-filing recruitment in the Basic labor certification process) or 20 C.F.R. § 656.21 
(Supervised recruitment) - applies to labor certification applications for Schedule A occupations. 
According to 20 C.F .R. § 656.40( c ), therefore, the employer of a Schedule A nurse must file its labor 
certification application within the validity period of the PWD issued by the NPC. The labor 
certification application for a Schedule A nurse is filed together with the I-140 petition, which means 
the 1-140 petition must also be filed within the validity period of the PWD. 
In this case, the validity period of the _PWD was May 12, 2017, to August 10, 2017. The 1-140 
petition and the labor certification application, which included the PWD, were filed with USCIS on 
October 20, 2017. That date was more than two months after the expiration of the PWD's validity 
period. Thus, the 1-140 petition and the accompanying labor certification application were not filed 
during the validity period of the PWD, as required by 20 C.F.R. § 656.40(c). 
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Matter ofC-H-L-A-
III. CONCLUSION 
The appeal will be dismissed because the petition was not accompanied by a valid prevailing wage 
determination. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC-H-L-A-, ID# 2651194 (AAO Jan. 18, 2019) 
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