dismissed EB-3 Case: Physical Therapy

PUBLIC COPY 
identifying data deleted to 
prevent cidy unwarranted 
invasion of -a1 privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
SRC 04 121 51659 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
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. 
i>7kiwx 
R be . Wie nn, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center, and is now 
before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a rehabilitation business organized as a corporation. 
 It seeks to employ the beneficiary 
permanently in the United States as a physical therapist. 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 has failed to establish that the beneficiary meets the requirements of 20 C.F.R. 5 
656.22(1)(~)(1). Specifically the director found that there was no a letter or statement signed by an authorized 
State physical therapy licensing official in the State of intended employment which is Texas, stating that the alien 
is qualified to take that State's written licensing examination for physical therapists, and, the beneficiary has not 
submitted evidence to show that he has already the necessary state license. The director denied the petition 
accordingly. 
On appeal, counsel submits additional evidence. 
The Director, United States Employment Service (Director), has determined that there are not sufficient United 
States workers who are able, willing, qualified, and available for the occupations listed below on Schedule A and 
that the wages and worlung conditions of United States workers similarly employed will not be adversely affected 
by the employment of aliens in Schedule A occupations. An alien seelung a labor certification for an occupation 
listed on Schedule A may apply for that labor certification pursuant to 20 C.F.R. 5 656.22, Schedule A, (a) Group 
I: (1) Persons who will be employed as physical therapists, and who possess all the qualifications necessary to 
take the physical therapist licensing examination in the State in which they propose to practice physical therapy. 
The regulation at 20 C.F.R. 5 656.22(c) states that an employer seelung labor certification under Group I of 
Schedule A shall file, as part of its labor certification application, documentary evidence of the following: 
(1) An employer seelung Schedule A labor certification for an alien to be employed as a physical 
therapist (5 656.10(a)(l) of this part) shall file as part of its labor certification application a letter 
or statement signed by an authorized State physical therapy licensing official in the State of 
intended employment, stating that the alien is qualified to take that State's written licensing 
examination for physical therapists. Application for certification of permanent employment as a 
physical therapist may be made only pursuant to this 5 656.22 and not pursuant to $5 656.21, 
656.2 1 a, or 656.23 of this part. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(3)(A)(ii), 
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
The regulation at 8 C.F.R. 5 204.5(1)(2) states, in pertinent part: 
"Professional means a qualified alien who holds at least a United States baccalaureate degree or a foreign 
equivalent degree and who is a member of the professions." 
The regulation at 8 C.F.R. 8 204.5(1)(3)(ii)(C) states, in pertinent part: 
Professionals. If the petition is for a professional, the petition must be accompanied by 
evidence that the alien holds a United States baccalaureate degree or a foreign equivalent 
degree and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or university record showing 
the date the baccalaureate degree was awarded and the area of concentration of study. 
The 1-140 petition was filed March 24, 2004. It required that the applicant possess a Bachelor of Science 
degree (B.S.) in the major field of study, Physical Therapy. Along with the petition, the petitioner submitted 
copies of the following documents: an U.S. Department of Labor, Form ETA 750 A/B Application for Alien 
Employment Certification dated December 29, 2003; a notice of filing and posting of the Application for 
Alien Employment certification;' a credentials report from the International Education Research Foundation 
Inc. that the beneficiary has a degree comparable to the U.S. Bachelor of Science in Physical Therapy; the 
beneficiary's resume; the beneficiary's diploma (Bachelor of Science in Physical Therapy) and college 
transcripts; a certification from St. Joseph Physical Therapy and Rehabilitation Clinic that the beneficiary was 
an assistant therapist from February 2000 to March 2002; a certification from the Fatima Medical Science 
Foundation Inc, Valenzuela City, Republic of the Philippines; approximately 18 certificates of attainment in 
continuing medical education; and, the beneficiary's driver's license and birth certificate. 
Because the Director determined the evidence submitted with the petition was insufficient, inter alia, to 
demonstrate the beneficiary is qualified to take that State of Texas' written licensing examination for physical 
therapists, and, the beneficiary had not submitted evidence to show that he has already the necessary state license, 
the Director requested on December 8,2004, pertinent evidence of same. 
In response to the request for evidence as above recited, the petitioner submitted a letter stating the beneficiary 
had received an authorization to test dated August 19, 2004, from the Federation of State Boards of Physical 
Therapy, Alexandna, Virginia, stating that the beneficiary may sit for an examination between August 20, 2004, 
and October 19,2004. No evidence was submitted that the beneficiary in fact took this exam. 
The director denied the petition on April 8, 2005. The director determined that the petitioner has failed to 
establish that the beneficiary meets the requirements of 20 C.F.R. 3 656.22(1)(~)(1). Specifically the director 
found that there was no a letter or statement signed by an authorized State physical therapy licensing official in 
the State of intended employment which is Texas, stating that the alien is qualified to take that State's written 
licensing examination for physical therapists, and, the beneficiary has not submitted evidence to show that he has 
already the necessary state license. 
On appeal, counsel states the following will happen at a future time: the beneficiary will take a qualifying 
licensing examination in California, and, then the beneficiary will apply for reciprocity for the Texas Physical 
Therapy Board and complete the requirements under the supervision of a licensed physical therapist in Texas. 
Counsel has submitted copies of the following documents to accompany the appeal statement: the Notice of 
Decision, and, a letter from the Physical Therapv Board of California, Sacramento. California, dated April 6, 
2004, addressed to the beneficiary at stating, in part, 
that the beneficiary is authorized to test. According to the terms of the letter the beneiiciary's application 
would remain on file for one year from April 6, 2004. Despite the passage of almost three years, there is no 
evidence submitted that the beneficiary in fact took this exam. 
1 
The notice of filing and posting of the Application for Alien Employment Certification is defective on its 
face as it requires a Baccalaureate Degree in Physical Therapy and one year of experience in the relatedfield. 
The subject Application for Alien Employment Certification has no such experience requirement. Thus, the 
posting notice fails to comply with the regulation at 20 C.F.R. 3 656.20(g)(8) requiring that the notice contain a 
description of the job for Schedule A applications. 
As a preface to the following discussion, a visa petition may not be approved based on speculation of future 
eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). A petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
The facts as submitted by the petitioner were that at the date of filing the petition, March 24, 2004, the 
beneficiary did not possess the necessary state license to practice physical therapy in the state of Texas, nor did 
the petitioner submit a letter or statement signed by an authorized State physical therapy licensing official in the 
State of intended employment which is Texas, stating that the beneficiary is qualified to take that State's written 
licensing examination for physical therapists. 
The petitioner, has not come forward with substantive evidence according to 20 C.F.R. 9 656.22 (c) to 
demonstrate compliance with the above regulatory requirements from the date of filing of the 1-140 petition, 
March 24,2004. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.