remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 29, 2024 In Re: 29426701 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a skilled nursing facility, seeks to permanently employ the Beneficiary as a registered 
nurse. It requests his classification as a skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(i), 8 U .S.C. 
§ 1153(b )(3)(A)(i). This category allows prospective U.S. employers to sponsor noncitizens for lawful 
permanent residence to work in positions requiring at least two years of training or experience. 
The Director of the Nebraska Service Center denied the petition, which also sought the position's 
designation as a professional nurse under Schedule A. The Director concluded the Petitioner did not 
comply with U.S. Department of Labor (DOL) regulations requiring that a notice of filing be posted 
at the proposed worksite for at least 10 consecutive business days and that such notice be provided 
between 30 and 180 days before filing a Schedule A application. 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 ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&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 
Immigration as a skilled worker typically follows a three-step process. First, to permanently fill a 
position in the United States with a noncitizen worker, a prospective employer usually must seek DOL 
certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). IfDOL approves a 
position, an employer next submits the labor certification with an immigrant visa petition to U.S. 
Citizenship and Immigration Services (USCIS). Section 204 of the Act, 8 U.S.C. § 1154. If USCIS 
grants a petition, the noncitizen worker may finally 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. 
A Schedule A occupation is an occupation 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 foreign nationals in such occupations. The current list of Schedule A 
occupations includes professional nurses and physical therapists. Id. Petitions for Schedule A 
occupations do not require a petitioner to test the labor market and obtain a certified labor certification 
from the DOL prior to filing the petition with USCIS. Instead, the petition is filed directly with USCIS 
with a duplicate uncertified labor certification, and USCIS makes a determination on both the petition 
and the accompanying labor certification. See 8 C.F.R. § 204.5( a)(2); see also 20 C.F.R. § 656.15. 
II. NOTICE OF FILING REQUIREMENTS 
The sole issue addressed with the Director is whether the Petitioner properly notified its employees of 
its application for Schedule A designation in compliance with DOL requirements. Specifically, a 
Schedule A application must include evidence that notice of filing the labor certification application 
was provided to the bargaining representative, or to the petitioner's employees as prescribed in 
20 C.F.R. § 656.l0(d). See 20 C.F.R. 656.15(b)(2). In adjudicating an immigrant petition involving 
a Schedule A occupation, USCIS applies DOL's regulations to the application for permanent labor 
certification to determine whether the employer has met DOL requirements, including all posting 
requirements for the notice of filing. 
When an employer offers a non-unionized position to a noncitizen, it must document that it posted 
notice of the application's filing to employees at the proposed worksite for at least 10 consecutive 
business days. 20 C.F.R. § 656.10( d)(l)(ii). 1 The notice must: indicate that the posting stems from the 
filing of a certification application for the offered position; state that anyone may send documentary 
evidence about the application to the DOL certifying officer; list the address of the appropriate officer; 
and be posted between 30 and 180 days before the application's filing. 20 C.F.R. § 656.10(d)(3). A 
notice of filing in a Schedule A case must also describe the job and rate of pay. 20 C.F.R. 
§ 656.10(d)(6). 
The record includes an attestation from the Petitioner's administrator stating that the notice of filing 
was posted in two locations at the intended worksite from November 21, 2022, until January 5, 2023. 
Therefore, the record shows that the notice was posted for 45 consecutive business days, as the 
Petitioner established that it is open for business on weekends and holidays. The Petitioner filed the 
Form I-140 on January 9, 2023. 
After issuing a request for evidence and considering the Petitioner's response, the Director denied the 
petition, concluding that Petitioner did not comply with the notice of filing requirement at 20 C.F.R. 
§ 656.10(d)(3)(iv), which states that the notice of filing must "be provided between 30 and 180 days 
before filing the application." The Director determined that "since the last day of the posting was 
January 5, 2023, proper notice was not provided between 30 and 180 days prior to filing the 
application." 
On appeal, the Petitioner asserts that it complied with 20 C.F.R. § 656.l0(d)(l)(ii) by posting the 
notice of filing for "at least 10 consecutive business days" beginning on November 21, 2022. Further, 
1 If an offered position is unionized, the employer must notify the bargaining representative of its employees who work in 
the same occupational classification and area of intended employment. 20 C.F.R. § 656.10( d)(l )(i). 
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it maintains that this 10-day period occurred between 30 and 180 days before filing the application, as 
required by 20 e.F.R. § 656.10(d)(3)(iv). Specifically, the Petitioner emphasizes that the required 10-
day posting period was complete on December 1, 2022, more than 30 days prior to filing, and therefore 
allowed sufficient time for interested persons to submit documentary evidence bearing on the 
application to the DOL. 
Upon review, we conclude that the Petitioner complied with all requirements for the notice of filing 
at 20 C.F.R. § 656.10( d). The regulations require a 10 business-day posting period, with the last day 
of that period occurring at least 30 days prior to the filing of the application. Therefore, the 30 days 
should be counted beginning from the last day of this 10-day period, regardless of whether the 
employer removes the notice from the worksite after 10 consecutive business days or leaves it posted 
for a longer period. Accordingly, we will withdraw the Director's decision. 
III. ABILITY TO PAY 
Although the Petitioner has overcome the sole grounds for denial the record as presently constituted 
contains insufficient evidence of its ability to pay the Beneficiary's proffered wage. 
A petitioner must demonstrate its continuing ability to pay an offered job's proffered wage, from a 
petition's priority date until a beneficiary obtains lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
Initial evidence of ability to pay must generally include copies of an annual report, federal tax return, 
or audited financial statements for each available year, from the year of the priority date onward. Id.; 
see generally 6 USCIS Policy Manual E.4(A), www.uscis.gov/policy-manual. If a petitioner employs 
100 or more workers, a statement from a financial officer of the organization may serve to establish 
ability to pay the proffered wage. Id. 
When determining ability to pay, users examines whether a petitioner paid a beneficiary the full 
proffered wage, beginning with the year of a petition's priority date. See generally 6 USCIS Policy 
Manual, supra, at E.4(C)(1). If a petitioner did not pay a beneficiary the full proffered wage or did not 
pay a beneficiary at all during the relevant period, users considers whether the business generated 
annual amounts of net income or net current assets sufficient to pay any differences between the 
proffered wage and the wages paid. Id. If net income and net current assets are insufficient, the 
Agency may consider other factors potentially affecting a petitioner's ability to pay a proffered wage. 
See Matter ofSonegawa, 12 I&N Dec. 612, 614-15 (Reg'l eomm'r 1967).2 
The petition's priority date is January 9, 2023, the date the Petitioner filed the Form I-140 and Schedule 
A application with users. See 8 e.F.R. § 204.5( d) ( explaining how to determine a petition's priority 
date). As evidence of its ability to pay, the Petitioner provided copies of its audited financial 
statements for the years ending December 31, 2020 and 2021. This evidence cannot establish the 
Petitioner's ability to pay the proffered wage as of the priority date. 
2 Federal courts have upheld USCIS' method of determining a petitioner's ability to pay a proffered wage. See. e.g., River 
St. Donuts, Inc. v. Napolitano, 558 F.3d 111, 118 (1st Cir. 2009); Just Bagels Mfg.. Inc. v. Mayorkas, 900 F. Supp. 2d 363, 
373-76 (S.D.N.Y. 2012). 
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Because the initial required evidence of the Petitioner's ability to pay as of the petition's priority date 
should now be available, we will remand the matter. On remand, the Director should ask the Petitioner 
to submit copies of its annual reports, federal tax returns, or audited financial statements for 2023. 
The company may also submit additional evidence of its ability to pay, including proof of its 
employment of the Beneficiary since the priority date or materials supporting factors stated in 
Sonegawa. If the Petitioner has filed Form 1-140 on behalf of other beneficiaries, the Director should 
determine whether this case necessitates analysis of the Petitioner's ability to pay multiple 
beneficiaries and may request additional supporting evidence. See generally 6 USCIS Policy Manual, 
supra, at 4.D(2). 
III. CONCLUSION 
Although the Petitioner has demonstrated its compliance with the notice of filing requirements 
applicable to Schedule A applications, the record lacks required initial evidence of the Petitioner's 
ability to pay the proffered wage. Accordingly, we will remand the matter to the Director for further 
review and entry of a new decision. 
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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