remanded EB-3 Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 17, 2024 In Re: 33358826 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
The Petitioner, a medical center, seeks to employ the Beneficiary as a registered nurse. It requests 
classification of the Beneficiary under the third-preference, immigrant category as a skilled worker. 
Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1 l 53(b )(3)(A)(i). This 
employment-based category allows a U.S. business to sponsor a foreign national for lawful permanent 
resident status based on a job offer requiring at least two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary is qualified for the offered position. The matter is now before us on 
appeal. 8 C.F.R. § 103.3 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc. , 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
To permanently fill a position in the United States with a foreign worker, a prospective employer must 
first obtain certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 
8 U.S.C. § 1182(a)(5). If DOL approves a position, an employer must next submit the certified labor 
application with an immigrant visa petition to U.S. Citizenship and Immigration Services 
(USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether 
a beneficiary meets the requirements of a certified position and a requested immigrant visa 
classification. If USCIS approves the petition, a foreign national may finally apply for an immigrant 
visa abroad or, if eligible, adjustment of status in the United States. See section 245 of the Act, 8 
U.S.C. § 1255. 
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 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 petitioner to test the labor market and obtain a certified ETA Form 9089 (ETA 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, and the accompanying Prevailing Wage Determination, Form ETA 
9141 (ETA 9141). See 8 C.F.R. § 204.5(a)(2); see also 20 C.F.R. § 656.15. 
II. ANALYSIS 
A petitioner must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 1 8 C.F .R. §§ 103.2(b )(1), 
(12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
The petition is accompanied by an uncertified ET A 9089 and a completed and certified ETA 9141. Part 
F.b of the ETA 9141 states that the offered position's minimum requirements are a bachelor's or 
foreign equivalent degree in nursing and six months of experience in nursing. Appendix A of the ET A 
9089 states that the Beneficiary qualifies for the offered position based on his bachelor of science in 
nursing degree awarded by the ___________ in the Philippines. Appendix A also 
lists the following experience for the Beneficiary: 
• Nurse, wit _____________ Qatar, from August 2017 with no 
end date of employment; 
• Nurse, with _____________, Philippines, from "0/2014 to 
02/2017;" and .----------------------,• Nurse, with the in Philippines, from 
"10/2009 to 14/2014." 
Appendix A of the ETA 9089 also lists the following job description for the Beneficiary's position 
with 
Treat and care for patient after major surgical procedures by monitoring vital signs, 
administering medication and cleaning surgical wounds. Collaborate with physicians, 
case managers, wound care, infection control nurse, families, and other staff members 
when developing plan of care and treatment during hospital stay. Work as Acting 
Charge Nurse/Team Lead for the unit, and as a nurse preceptor to help train students 
and newly hire nurses in our facility who are completing their internship duties. 
Responded to emergency situation where patient is in life threatening situations by 
following the correct procedures and hospital protocol while maintaining a calm and 
effective demeanor. Led an initiative as a member of the UBC (Unit Based Council) 
of our facility to improve patient, family and medical staff communication by 
conducting workshops to facilitate suggestions. Review, interpret, and evaluate 
1 The "priority date" of a petition is the date the underlying labor certification is filed with the DOL. See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied as of the 
priority date, which in this case is January 9, 2024. 
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diagnostic tests to identify and assess patient's condition. 
With the initial filing, the Petitioner submitted a co of a bachelor of science in nursin 
to the Beneficiary in 2008 by the 
Philippines, as well as academic transcripts and an evaluation of his academic credentials. The 
evaluation states that the Beneficiary's bachelor of science in nursing degree is the equivalent of a 
bachelor of science degree in nursing from an accredited institution of higher education in the United 
States. 
The Director issued a request for evidence (RFE) noting that the initial filing did not include evidence 
of the Beneficiary's six months of experience required for the offered position as required by the labor 
certification. The Director requested additional evidence of the Beneficiary's qualifications as a 
professional nurse, including a license. She also requested a letter from the Beneficiary's current or 
former employer stating his dates of employment. The Director specifically stated that the letter "must 
list the writer's name, address, and title, and a specific description of the beneficiary's duties." 
In response to the RFE the Petitioner provided a letter dated February 5, 2024, on 
I I letterhead. The letter is signed by the Chief Human Resources Officer and states that the 
Beneficiary is employed as a "Graduate Registered Nurse (CF) in the Male Surgery - Inpatient 
department of The letter states that the Beneficiary "joined 
on August 20, 2017 and is in service up to date." 
The Director denied the petition concluding that, because the experience letter did not include a 
description of the Beneficiary's duties, the Petitioner had not established that the Beneficiary 
possessed the minimum experience required for the offered position. 
On appeal, the Petitioner notes that a job description for the Beneficiary's employment with 
was provided on Appendix A of the ETA 9089. It submits a job description for 
the position of"Graduate Registered Nurse (CF)" on letterhead. 
The regulation at 8 C.F.R. § 204.5(1)(3) provides: 
(ii) Other documentation-
(A) General. Any requirements of training or experience for skilled workers, 
professionals, or other workers must be supported by letters from trainers or 
employers giving the name, address, and title of the trainer or employer, and 
a description of the training received or the experience of the alien. 
The new evidence submitted on appeal, combined with the experience letter in the record meets the 
requirements of 8 C.F.R. § 204.5(1)(3). However, additional information casts doubt on the Beneficiary's 
qualifying experience. The information in the ET A 9089 and experience letter is inconsistent with 
nonimmigrant visa applications that the Beneficiary submitted in 2021 and 2023. 
In his prior nonimmigrant visa applications, the Beneficiary lists his current employment as nurse with 
the In 2021, the Beneficiary stated that this employment began 
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January 15, 2015 and that he had no previous employment. In 2023, the Beneficiary stated that this 
employment began February 1, 2021 and that he had no previous employment. Both of these prior 
claims are inconsistent with the experience letter and the ETA 9089 which state that the Beneficiary 
was employed by ________ from August 20, 2017 until at least February 5, 2024, 
the date the letter was signed. The inconsistencies in the Beneficiary's employment history cast doubt 
as to his possession of the required experience for the offered position. The Petitioner must resolve 
these inconsistencies with independent, objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92. Unresolved material inconsistencies may lead us to reevaluate the 
reliability and sufficiency of other evidence submitted in support of the requested immigration benefit. 
Id. 
Because we cannot affirmatively find that the Beneficiary possesses the experience required for the 
offered position and the Petitioner is not on notice of this issue, we will remand the matter to the 
Director for further consideration. On remand, the Director may wish to issue a new RFE outlining 
the deficiencies above, requesting additional independent objective evidence in support, and allowing 
the Petitioner an opportunity to respond. 
In a new RFE, the Director may also wish to request evidence to establish the Petitioner's continuing 
ability to pay the offered wage of $79,747 per year. The record includes the Petitioner's consolidated 
financial statements for 2021 to 2022. However, to be eligible for the classification it requests for the 
Beneficiary, the Petitioner must establish that it has the ability to pay the proffered wage stated on the 
labor certification from the January 2024 priority date and continuing until the beneficiary obtains 
lawful pennanent residence. 8 C.F.R. § 204.5(g)(2). 
The regulation at 8 C.F .R. § 204.5(g)(2) requires that "[ e ]vidence of this ability shall be either in the 
form of copies of annual reports, federal tax returns, or audited financial statements." The record does 
not contain regulatory-required evidence of the Petitioner's continuing ability to pay the proffered 
wage in the year of the priority date. Although the record includes the Petitioner's financial statements 
for 2021 to 2022, this evidence is before the priority date and does not demonstrate the Petitioner's 
continuing ability to pay the proffered wage. We acknowledge that evidence for 2024 may have been 
limited at the time of filing, but should be available on remand. Without this regulatory-required 
evidence, we cannot affirmatively find that the Petitioner has the continuing ability to pay the proffered 
wage from the priority date. 
We note that where a petitioner has filed 1-140 petitions for multiple beneficiaries, it must demonstrate 
that its job offer to each beneficiary is realistic, and that it has the ability to pay the proffered wage to 
each beneficiary. See Patel v. Johnson, 2 F.Supp.3d 108, 124 (D. Mass. 2014) (affirming our 
revocation of a petition's approval where, as of the filing's grant, a petitioner did not demonstrate its 
ability to pay the combined proffered wages of multiple petitions). USCIS records show that the 
Petitioner has filed Form 1-140 petitions for 3 5 other beneficiaries in the last three years. Thus, the 
Petitioner must establish its ability to pay this Beneficiary as well as the beneficiaries of the other 
Form 1-140 petitions that were pending or approved as of, or filed after, the priority date of the current 
petition. 
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II. CONCLUSION 
The record does not demonstrate affirmatively that the Petitioner is eligible for the benefit sought, 
including whether the Beneficiary possesses the minimum experience required for the offered position 
and whether the Petitioner can establish that it has the ability to pay the Beneficiary's proffered wage 
as required by 8 C.F.R. § 204.5(g)(2). Therefore, we will remand this case to the Director for further 
consideration. The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance 
of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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