dismissed EB-3 Case: Physical Therapy

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: a 1 9 2@ 
LIN 04 010 50556 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the ~dministrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any hrther inquiry must be made to that office. 
kobert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: the Director, Nebraska Service Center, denied the preference visa petition. The petition is 
now before the Administrative Appeals Office (MO) on appeal. The appeal will be summarily dismissed. 
The petitioner is a "rehab services and staffing" business. 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. tj 656.10(a), commonly referred to as Schedule A, Group 1. The director 
determined that the petitioner had not established that it had posted the notice of filing of the Application for 
Alien Employment Certification (ETA 750) in compliance with 20 C.F.R. 9 656.20(g)(l) and (g)(8) and denied 
the petition accordingly. 
The record shows that the appeal is properly filed and timely. However, it does not make a specific allegation of 
error in law or fact. The procedural history in this case is documented by the record and incorporated into ths 
decision. Further elaboration of the procedural history will be made only as necessary. 
As set forth in the director's original March 29, 2005 denial, the single issue in ths case is whether or not the 
petitioner has established that it posted the notice of filing of the ETA 750 in compliance with 20 C.F.R. tj 
656.(g)(l) and (g)(8). 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. tj 1153(b)(3)(A)(i), provides for the granting of preference 
classification to qualified immigrants who are capable, at the time of petitioning for classification under this 
paragraph, of performing skilled labor (requiring at least two years training or experience), not of a temporary 
or seasonal nature, for which qualified workers are not available in the United States. This section also 
provides for the granting of preference classification to qualified immigrants who hold baccalaureate degrees 
and are members of the professions. 
In this case, the petitioner filed an Immigrant Petition for Alien Worker (Form 1-140) for classification of the 
beneficiary under section 203(b)(3)(A)(i) of the Act as a physical therapist on October 14, 2003. Aliens who 
will be permanently employed as physical therapists are listed on Schedule A as occupations set forth at 
20 C.F.R. 3 656.10 for which the Director of the United States Employment Service has determined that there 
are not sufficient United States workers who are able, willing, qualified and available, and that the 
employment of aliens in such occupations will not adversely affect the wages and working conditions of 
United States workers similarly employed. 
An employer shall apply for a labor certificatibn for a Schedule A occupation by filing an Application for Alien 
Employment Certification (Form ETA-750 at Part A) in duplicate with the appropriate CIS office. Pursuant to 
20 C.F.R. tj 656.22, the Application for Alien Employment Certification shall include: 
1) Evidence of prearranged employment for the alien beneficiary by having an employer complete and 
sign the job offer description portion of the application form. 
2) Evidence that notice of filing the Application for Alien Employment Certification was provided to the 
bargaining representative or the employer's employees as prescribed in 20 C.F.R. tj 656.20(g)(l). 
The MO takes a de novo look at issues raised in the denial of ths petition. See Dor v. INS, 891 F.2d 997, 1002 
n. 9 (2d Cir. 1989)(noting that the MO reviews appeals on a de novo basis). The MO considers all pertinent 
evidence in the record, including new evidence properly submitted upon appeal1. Relevant evidence submitted on 
I 
 The submission of additional evidence on appeal is allowed by the instructions to the Form I-290B, which 
Page 3 
appeal includes a copy of a posting notice, dated April 4,2005, for North Bergen, New Jersey and a letter stabng 
that the petiboner "would like to re-submit a new ETA750 Part A, Part B and a nobce of job availability for the 
new work location." The orignal labor certification was for Indianapolis, Indiana. 
Under 20 C.F.R. $ 656.20, the regulations require the following: 
In applications filed under 656.21 (Basic Process), 656.21a (Special Handling) and 656.22 
(Schedule A), the employer shall document that notice of the filing of the Application for 
Alien Employment Certification was provided: 
(0 
 To the bargaining representative(s) (if any) of the employer's employees in the 
occupational classification for which certification of the job opportunity is sought in 
the employer's location(s) in the area of intended employment. 
(ii) 
 If there is no such bargaining representative, by posted notice to the employer's 
employees at the facility or location of the employment. The notice shall be posted 
for at least 10 consecutive days. The notice shall be clearly visible and unobstructed 
while posted and shall be posted in conspicuous places, where the employer's U.S. 
workers can readily read the posted notice on their way to or from their place of 
employment. Appropriate locations for posting notices of the job opportunity include, 
but are not limited to, locations in the immediate vicinity of the wage and hour notices 
required by 20 CFR 516.4 or occupational safety and health notices required by 20 
CFR 1903.2(a). . 
On appeal, 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. 1988). In 
addition, a petitioner must establish the elements for the approval of the petition at the time of filing. Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In the instant case, the beneficiary was not licensed to 
practice as a physical therapist in Indiana (the original posting), and on appeal, the notice of filing was not 
posted until after the filing of the petition. The purpose of requiring the employer to post notice of the job 
opportunity is to provide U.S. workers with a meaninghl opportunity to compete for the job and to assure that 
the wages and working conditions of United States workers similarly employed will not be adversely affected 
by the employment of aliens in Schedule A occupations2. The notice must be posted at least ten days prior to 
the filing of the petition. 
After a review of the record, it is concluded that the petitioner has not established that it had posted the notice 
of filing of the Application for Alien Employment Certification (ETA 750) in compliance with 20 C.F.R. 8 
656.20(g)(l) and (g)(8). 
are incorporated into the regulations by the regulation at 8 C.F.R. $ 103.2(a)(l). The record in the instant case 
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). 
2 
 See the Imm~gration Act of 1990, Pub. L. No. 101-649, 122(b)(l), 1990 Stat. 358 (1990); see also Labor 
Certification Process for the Permanent Employment of Aliens in the United States and Implementation of the 
Immigration Act of 1990,56 Fed. Reg. 32,244 (July 15, 1991). 
Page 4 
Furthermore, the regulation at 8 C.F.R. 
 103.3(a)(l)(v) provides that "[aln officer to whom an appeal is taken 
shall summarily dismiss any appeal when the party concerned fails to identify specifically any erroneous 
conclusion of law or statement of fact for the appeal." 
In this case, counsel failed to identify specifically an erroneous conclusion of law or statement of fact for the 
appeal, but, instead, sought to amend the petition. 
As the petitioner has failed to identify specifically an erroneous conclusion of law or a statement of fact as a basis 
for the appeal, the appeal must be summarily dismissed3. 
ORDER: 
 The appeal is summarily dismissed. 
It is noted that the petitioner has also not clearly shown its ability to pay the proffered wage. As the petitioner 
has filed several petitions with their priority dates in 2003 and later, the petitioner must establish its ability to pay 
all of the wages for those pertinent years.