dismissed EB-3 Case: Physical Therapy

U.S. Citizenship 
and Immigration 
Services 
In Re: 07375646 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for a Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: JAN. 24, 2020 
The Petitioner , a healthcare business , seeks to employ the Beneficiary as a physical therapist. It 
requests professional classification for the Beneficiary under the third preference immigrant category . 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii) , 8 U.S.C. § 1153(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 the Petitioner did 
not properly post the notice of its application for permanent employment certification because the 
posting did not contain a complete description of the job duties and education/experience requirements 
for the proffered position and therefore did not comply with the regulation at 20 C.F.R. § 656.10( d)(l ). 
On appeal the Petitioner asserts that it did comply with the regulatory requirements for the posted 
notice , which do not include a description of the job duties and education /experience requirements. 
Upon de nova 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. 
§ 656.5(a) for which the 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 physical therapists. Id. 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 9089 in duplicate. See 8 C.F.R. § 204.5(a)(2); see also 20 C.F.R . 
§ 656.15 . 
The regulation at 20 C.F.R. § 656.10( d) sets forth the notice and documentation requirements for 
applications for pennanent employment certification involving Schedule A occupations filed under 
20 C.F.R. § 656.15. The regulation provides that if the employer's employees have a bargaining 
representative the notice of the filing of the application for permanent employment certification must 
be posted in the area of intended employment and may be documented by copies of the notice and the 
ETA Form 9089. 20 C.F.R. § 656.l0(d)(l)(i). The regulation also provides that if there is no 
bargaining representative the notice of the filing of the application for permanent employment 
certification must be posted for at least 10 consecutive business days in a conspicuous location at the 
facility or location of the employment, among other requirements, and may be documented by copies 
of the notice and all in-house media that was used to distribute the notice. 20 C.F.R. § 656. l0(d)(l )(ii). 
Additional substantive requirements for the notice of the filing an ETA Form 9089 are contained in 
20 C.F.R. § 656.10(d)(3). Finally, the regulation at 20 C.F.R. § 656.10(d)(6) states that a notice posted 
for an ETA 9089 filed under the Schedule A procedures at 20 C.F.R. § 656.15 "must contain a 
description of the job and rate of pay, and must meet the requirements of this section." 
II. ANALYSIS 
Counsel asserts that a "description of the job" and the "rate of pay" is all that the regulations require 
in the posted notice. Counsel farther notes that the job duties described in the notice are the same as 
those contained on the ETA Form 9089. 
While there is no strict requirement in 20 C.F.R. § 656.l0(d)(l) that the Petitioner's notice of its 
application for permanent employment certification include a complete description of the job duties 
and education/experience requirements for the proffered position, the posted notice must be consistent 
with the specifications and requirements set forth in the ETA Form 9089. The job requirements as 
stated in the ETA Form 9089 include a bachelor's degree (U.S. or foreign equivalent) in physical 
therapy and a New York state physical therapist license. The associated Form ETA-9141 (Application 
for Prevailing Wage Determination) states that performance of the job duties will require "local travel 
to client locations." The Petitioner is located inl • I and its website notes that the company 
"has a vast network of client sites across the Tri-state area (New York, New Jersey, and Connecticut)." 
The Petitioner's posted notice announced "multiple openings" for a physical therapist, but did not 
specify any educational requirement or whether, and for what state(s), a license was required. 
Educational requirements in the field of physical therapy have changed over the years, and vary by 
state. When posting for multiple physical therapists, it might not be clear whether a bachelor's degree 
would be acceptable, or if a master's degree is required for a particular position. Additionally, 
different educational requirements might result in different prevailing wage determinations and 
necessitate the listing of different rates of pay on the posted notice to account for multiple openings. 
Without a reference to either the educational or the state licensure requirements specified in the ETA 
Form 9089, the Petitioner's notice of filing was insufficient to apprise U.S. workers of the job 
opportunity. See Matter or Architectural Stone Accents, BALCA Case No. 2011-PER-02719, ETA 
Case No. A-09042-27228 (July 3, 2013), where the Board of Alien Labor Certification Appeals 
(BALCA) looked to whether the overall text of the Notice of Filing was sufficient to apprise U.S. 
workers of the job opportunity. 1 
1 While BALCA decisions are not binding on the AAO, they are instructive on ce1tain issues and may provide guidance in 
our adjudication ofpaiticular cases. The Notice of Filing (NOF) regulation is an implementation ofa statutory requirement 
imposed by the Immigration Act of 1990. Public Law 101-649, 104 Stat. 4978 (Nov. 29, 1990, eff. Oct. 1, 1991). In 
Hawai'i Pacific University, 2009-PER-127 (March 2, 2010) (en bane), BALCA found that the NOF serves a dual purpose 
2 
In accord with the foregoing analysis, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
of recruiting U.S. workers and, primarily, of providing a method for employees and interested persons to present 
information to the certitying officer about an employer's application. 
3