remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 12261019 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 19, 2020 
The Petitioner, a healthcare staffing business, seeks to employ the Beneficiary as a registered nurse 
under the third-preference, immigrant visa classification for skilled workers. See Immigration and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). 
The Director of the Nebraska Service Center denied the petition. The Director concluded that the 
Petitioner did not establish compliance of its accompanying application for Schedule A designation 
with regulations of the U.S. Department of Labor (DOL). 
The Petitioner bears the burden of establishing eligibility for the requested benefit. See section 291 of 
the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's decision and remand 
the matter for entry of a new decision consistent with the following analysis. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a skilled worker usually follows a three-step process. First, to permanently fill a 
position in the United States with a foreign worker, a prospective employer generally must obtain 
DOL certification. See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). If DOL approves a 
position, an employer next submits the certified labor application with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. § 1154. Finally, 
if USCIS grants a petition, a foreign national may apply abroad for an immigrant visa or, if eligible, 
for adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
DOL, however, has already determined that the United States lacks registered nurses and that 
employment of foreign nationals in these "Schedule A" positions will not harm the wages or working 
conditions of U.S. workers in similar positions. 20 C.F.R. § 656.5. DOL therefore does not require 
employers to advertise registered nursing positions to U.S. workers in the general population and has 
authorized USCIS to adjudicate Schedule A labor certification applications for registered nurses in 
petition proceedings. 20 C.F.R. § 656.15(a). Thus, in this matter, USCIS rules not only on the 
petition, but also on its accompanying labor certification application. See 20 C.F.R. § 656.15(e) 
(describing USCIS' Schedule A labor certification determinations as "conclusive and final"). 
II. THE SCHEDULE A APPLICATION 
Unless accompanied by documentation of a beneficiary's qualifications for a shortage position or an 
individual labor certification approved by DOL, a skilled-worker petition must include an application 
for Schedule A designation. 8 C.F.R. § 204.5(I)(3)(i). Prospective employers seeking Schedule A 
designation must comply with notice-of-filing requirements. 20 C.F.R. § 656.15(b)(2). For non-union 
positions, employers must post notices of their Schedule A applications for at least 10 consecutive 
business days at corresponding worksites, between 30 and 180 days before filing their applications. 
20 C.F.R. § 656.10(d)(3)(iv). 
If the employer does not know where the Schedule A employee will be placed, the 
employer must post the notice at that work-site(s) of all of its current clients, and 
publish the notice of filing internally using electronic and print media according to the 
normal internal procedures used by the employer to notify its employees of 
employment opportunities in the occupation in question. The prevailing wage will be 
derived from the area of the staffing agencies' headquarters. 
DOL, OFLC [Office of Foreign Labor Certification] Frequently Asked Questions, "Notices of Filing," 
No. 12, https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm (last visited Sept. 29, 2020). 
Here, the Petitioner stated that it had not yet determined where the Beneficiary would work in the 
United States as a registered nurse. Pursuant to the guidance on DOL 's website, the Petitioner 
provided copies of notices posted at 127 U.S. client sites where it could potentially place her. 
The Petitioner filed its petition and accompanying Schedule A application on September 4, 2019. The 
Petitioner therefore had to complete the postings by August 4, 2019, 30 days before the filing of the 
petition and the Schedule A application. The Director noted that one of the 127 posting notices 
submitted by the Petitioner omits the year in which its posting ended. The notice states its posting 
from "06/06/19" to "06/21/." The notice initially stated its removal from posting on "6/17/19." But 
that date has a line drawn through it. The date "06/21/" is written next to it. The Director stated: "The 
removal date of the notice of filing did not include a year. USCIS is therefore unable to determine an 
accurate removal date of the posted notice." Without issuing a written request for additional evidence 
(RFE) or a notice of intent to deny (NOID) the petition, the Director denied the filing, finding that the 
Petitioner did not establish its posting of all notices at least 30 days before the petition's filing. See 
20 C.F.R. § 656.10(d)(3)(iv). 
The removal date of "06/21" on the posting notice, however, makes sense only if the notice had been 
removed in 2019. The notice could not have been removed in the years before its placement. Also, 
because a copy of the notice was filed with the petition on August 30, 2019, the notice could not have 
been removed in 2020 or a later year. Thus, logic suggests the notice's removal in 2019. 
Also, on appeal, the Petitioner submits another copy of the posting notice showing a removal date of 
"06/21/19." The Petitioner explains that the originally submitted photocopy inadvertently "cut off" 
the year on the end of the notice's removal date. The new photocopy of the notice, positioned more 
to the left than the original copy, shows the notice's complete removal date as "06/21/19." The 
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Petitioner also submits an affidavit from the person who posted the notice, confirming the posting 
dates from "06/06/19" to "06/21/19." 
Where a petitioner received a notice questioning its evidence and a reasonable opportunity to explain, 
we do not accept additional evidence on appeal. Matter of Soriano, 19 l&N Dec. 764, 766 (BIA 1988). 
Here, however, the Director denied the petition without first issuing an RFE or NOID. The Petitioner 
therefore did not receive an opportunity to explain its evidence and confirm its compliance with DOL 
posting requirements. We will therefore accept the evidence on appeal. 
The Petitioner has demonstrated its compliance with DOL posting notice requirements. We will 
therefore withdraw the Director's contrary decision. 
Ill. THE EDUCATIONAL REQUIREMENTS 
The appeal overcomes the petition's denial ground. But the record does not establish the petition's 
approvability. The record does not demonstrate the Beneficiary's possession of the minimum 
education required for the offered position. 
A position for a skilled worker must generally require at least two years of training or employment 
experience. Section 203(b)(3)(A)(i) of the Act. For these purposes, however, "[r]elevant post­
secondary education" counts as training. 8 C.F.R. § 204.5(1)(2) (defining the term "skilled worker"). 
A petitioner must also demonstrate a beneficiary's possession of all job requirements listed on a labor 
certification application by a petition's priority date. Matter of Wing's Tea House, 16 l&N Dec. 158, 
160 (Acting Reg'I Comm'r 1977).1 In evaluating a beneficiary's qualifications, USCIS must examine 
the job-offer portion of an accompanying labor certification application to determine a position's 
minimum requirements. USCIS may neither ignore a certification term, nor impose additional 
requirements. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983). 
Here, the Petitioner's Schedule A application states the minimum requirements of the offered position 
of registered nurse as a U.S. associate's degree, or a foreign equivalent degree, in nursing. The 
application indicates that the position requires neither training nor experience.2 
On the Schedule A application, the Beneficiary attested that, by the petition's priority date, a 
Bangladeshi institute awarded her an associate's degree in nursing. The Petitioner submitted copies 
of the Beneficiary's nursing diploma and a transcript indicating her completion of a three-year 
program. 
The record, however, lacks evidence of the Bangladeshi diploma's U.S. equivalency. Thus, contrary 
to the requirements of the offered position listed on the Schedule A application, the Petitioner has not 
demonstrated the Beneficiary's possession of a foreign degree equivalent to a U.S. associate's degree. 
1 This petition's priority date is September 4, 2019, the date of its filing. See 8 C.F.R. § 204.5(d) (explaining how to 
determine a petition's priority date). 
2 The application also states the position's requirement of passage of the National Council Licensure Examination for 
Registered Nurses (NCLEX), a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS), or a 
license in the state of intended employment. The Beneficiary's qualifications for this requirement are not at issue. 
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The Director did not notify the Petitioner of this evidentiary deficiency. We will therefore remand the 
matter. On remand, the Director should notify the Petitioner why its evidence does not demonstrate 
the Beneficiary's educational qualifications for the offered position. 
IV. ABILITY TO PAY THE PROFFERED WAGE 
The record also does not establish the Petitioner's ability to pay the proffered wage of the offered 
position. A petitioner must demonstrate its continuing ability to pay, from a petition's priority date 
until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). Evidence of ability to 
pay must generally include copies of annual reports, federal tax returns, or audited financial 
statements. Id. 
The labor certification states the proffered wage of the offered position of registered nurse as $59,821 
a year. As previously noted, the petition's priority date is September 4, 2019. 
At the time of the petition's filing, regulatory required evidence of the Petitioner's ability to pay the 
proffered wage in 2019, the year of the petition's priority date, was unavailable. Contrary to 8 C.F.R. 
§ 204.5(g)(2), the record therefore did not establish the company's ability to pay "at the time the 
priority date is established." The Director determined the company's ability to pay based on its audited 
financial statements for 2017 and 2018. 
Required evidence of the Petitioner's ability to pay the proffered wage in 2019 should now be 
available. On remand, the Director therefore should notify the Petitioner that it must provide copies 
of annual reports, federal tax returns, or audited financial statements for 2019. The Petitioner must 
demonstrate its ability to pay the combined proffered wages of this and its other Form 1-140 petitions 
that were pending or approved as of this petition's priority date or filed thereafter. See Patel v. 
Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (affirming a petitioner's responsibility to demonstrate 
its ability to pay the combined proffered wages of multiple beneficiaries). The Petitioner may also 
submit additional evidence of its ability to pay, including proof that it paid the Beneficiary wages in 
2019 or materials supporting the factors indicated in Matter of Sonegawa, 12 l&N Dec. 612, 614-15 
(Reg'I Comm'r 1967). 
The Director should provide the Petitioner with a reasonable opportunity to respond to all issues raised 
on remand. Upon receipt of a timely response, the Director should review the entire record and enter 
a new decision. 
V. CONCLUSION 
The record establishes the Petitioner's compliance with DOL posting-notice requirements. The 
Petitioner, however, has not demonstrated the Beneficiary's educational qualifications for the offered 
position or the company's ability to pay the proffered wage. 
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ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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