remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF V-B-H-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 15,2015 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a healthcare business, seeks to permanently employ the Beneficiary in the United 
States as a registered nurse for immigrant classification as a professional. See Immigration and 
Nationality Act (the Act) § 203(b )(3)(A)(ii), 8 U.S.C. § 1153(b )(3)(A)(ii). The Director, Nebraska 
Service Center, denied the petition. The matter is now before us on appeal. The matter will be 
remanded to the Director in accordance with the following. 
The petition is for a Schedule A occupation. A Schedule A occupation is an occupation codified at 
20 § C.F.R. 656.5(a) for which the U.S. Department of Labor (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 and physical therapists. !d. 
Petitions for Schedule A occupations do not require the petitioner to test the labor market and obtain a 
certified ETA Form 9089 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 a duplicate 
uncertified ETA Form 9089. See 8 C.F.R. §§ 204.5(a)(2) and (1)(3)(i); see also 20 C.F.R. § 656.15. 
The petition was initially filed on September 12, 2006 and approved on July 2, 2007. On October 
14, 2014, the Director issued a notice of intent to revoke (NOIR) the approval of the petition because 
information indicated that a change in business structure may have occurred. On December 25, 
2014, the Director revoked the approval of the petition, noting that no response was received to the 
NOIR and that according to 9 FAM (Foreign Affairs Manual) 40.51 N4.6-1, a new Form I-140 
should have been filed due to the buyout or merger of your organization with another company. You 
appealed this decision to the Administrative Appeals Office (AAO). 
The Petitioner's appeal is properly filed and makes a specific allegation of error in law or fact. We 
conduct appellate review on a de novo basis. 1 We consider all pertinent evidence in the record, 
including new evidence properly submitted upon appeal? 
1 
See 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would 
(b)(6)
First, we note that the Petitioner asserts it did not receive the Director's NOIR and the record 
indicates that this NOIR was sent to the Petitioner's former counsel. See Matter of Arias, 19 I&N 
Dec. 568 (BIA 1988) and Matter of Estime, 19 I&N Dec. 450 (BIA 1987). The record also indicates 
that the Director then issued the Petitioner another NOIR to the Petitioner's former counsel on 
December 23, 2014, giving the Petitioner 30 days to respond. However, the Director issued the 
decision revoking the approval of the petition on December 25, 2014, to the Petitioner's current 
counsel two days after the NOIR was resent to the Petitioner on December 23, 2014. Therefore, the 
matter will be remanded to the Director to reissue a notice of intent to revoke and allow the 
Petitioner and current counsel an opportunity to respond. 
Second, related to the question of successorship, the record does not fully document the nature of the 
buyout and the restructuring that took place relating to the Petitioner's parent company. USCIS has 
not issued regulations governing immigrant visa petitions filed by a successor-in-interest employer. 
Instead, such matters are adjudicated in accordance with Matter ofDial Auto Repair Shop, Inc., 19 
I&N Dec. 481 (Comm'r 1986) ("Matter of Dial Auto") a binding, legacy Immigration and 
Naturalization Service (INS) decision that was designated as a precedent by the Commissioner in 
1986. Considering Matter of Dial Auto and the generally accepted definition of successor-in­
interest, a petitioner may establish a valid successor relationship for immigration purposes if it 
satisfies three conditions. · First, the petitioning successor must fully describe and document the 
transaction transferring ownership of all, or a relevant part of, the beneficiary's predecessor 
employer. Second, the petitioning successor must demonstrate that the job opportunity is the same 
as originally offered on the labor certification. Third, the petitioning successor must prove by a 
preponderance of the evidence that it is eligible for the immigrant visa in all respects. 
The record does not contain sufficient evidence establishing the details of the buyout to demonstrate 
whether it resulted in either: (1) a change in the Petitioner's name but not a change in the Petitioner's 
Employer Identification Number (EIN); or (2) an organizational change and a change in EIN that 
would give rise to a successorship, or multiple successor issues. 
Specifically, we note that the record contains news articles about the buyout of your organization by 
in but the Petitioner has not submitted any other 
documentation of the specific details regarding the transfer of ownership that occurred. The 
evidence in the record reflects that the Petitioner's employees were initially paid by 
which was replaced by 
following the merger. The 2012 IRS Form 1065 for 
LLC states the same EIN as ~ and states in schedule B-1 that VHS 
has a 51% ownership interest in _ 
and that has a 49% interest, but the relationship of each of these entities to the 
Petitioner is unclear. 
have in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. U.S Dept 
ofTransp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g., Soltane v. DO.!, 381 F.3d 143, 145 (3d Cir. 2004). 
2 The submission of additional evidence on appeal is allowed by the instructions to Form 1-2908, Notice of Appeal or 
Motion, which are incorporated into the regulations by 8 C.F.R. § I 03.2(a)(l ). 
3 However, we note that the petitioning entity lists a different EIN number on Form 1-140 and on ETA Form 9089. 
2 
(b)(6)
Your affidavit states that the Petitioner has two hospitals, one in 
The business organization chart in the record identifies the 
and another m 
and the listed under 
Your affidavit also states that "basically served to replace 
to hold the assets of the two " However, 
the record does not contain documentation specifically detailing the transfer of ownership of 
to or evidence demonstrating the relationship 
of and 
The record contains an affidavit from President and CEO of 
describing the organizational changes that took place in and first between 
and and in , between 
and The Petitioner must demonstrate the full -
chain of successorship regarding these two separate transactions of restructuring in and 
Therefore, the matter will be remanded to the Director. He may request evidence related to these 
issues to determine whether a successorship occmTed, and if so, whether the petitioner has 
established the full chain of successorship. 
We note the additional following deficiencies which should be addressed on remand. The Texas 
Prevailing Wage Determination form (PWD) does not clearly match the requirements on the ETA 
Form 9089. The PWD form states the minimum education is an associate's degree and assigns a 
level one wage. However, the ETA Form 9089 requires a Bachelor 's degree. See 20 C.P.R. § 
656.15(b )(1 ). It is unclear whether the same level wage would have been assigned for the required 
bachelor's level education. A petitioner may not make material changes to a petition in an effort to 
make a deficient petition conform to USCIS requirements. See Matter of Izummi , 22 I&N Dec. 169, 
176 (Assoc. Comm 'r 1988). 
In addition, it is not clear that the Beneficiary has a bachelor's degree, as required by Part H.4 of the 
ETA Form 9089, or if she instead has only a three-year course of study in Nursing. The record 
contains a certificate from the stating that the 
Beneficiary "has satisfactorily completed all requirements for the three year basic course in nursing" 
and conferred the title "graduate in nursing." This certificate does not state that the Beneficiary has 
completed a bachelor 's degree. Part J of the Fonn ETA 9089 states that the Beneficiary has obtained 
a Bachelor 's degree in Nursing from It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies , absent competent objective 
evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 
591-592 (BIA 1988). 
In view of the foregoing , the previous decision of the Director will be withdrawn. The petition is 
remanded to the Director to properly issue a notice of intent to revoke addressing the issues raised 
above. The Director may request any additional evidence considered pertinent. Similarly, the 
Petitioner may provide additional evidence within a reasonable period of time to be determined by 
the Director. Upon receipt of all the evidence , the Director will review the entire record and enter a 
new decision. 
3 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). The Petitioner has not met that burden. 
ORDER: The matter is remanded to the Director, Nebraska Service Center, for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
Cite as Matter ofV-B-H-S-, ID# 13157 (AAO Sept. 15, 2015) 
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