remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 31 , 2024 In Re: 29356526 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
The Petitioner, a nurse staffing company, 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. 
§ 1153(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 Acting 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 ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Acting 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, 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. 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. 8 C.F.R. §§ 103.2(b)(l), 
(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 ETA 9089. Part H of the ETA 9089 states that the 
offered position's minimum requirements are an associate's or foreign equivalent degree in nursing 
and a valid license in any state. The Petitioner submitted a copy of an associate in science nursing 
degree issued to the Beneficiary in August 2019 by a U.S. school, as well as evidence that the 
Beneficiary is a licensed registered nurse in Florida and is authorized to practice in multiple states. 
Upon review of the entire record, including the Beneficiary's associate's degree and transcripts, a 
letter from the school's administrative director, and the Beneficiary's valid license, we conclude that 
the Petitioner has established that the Beneficiary meets the minimum qualifications for the offered 
position as set forth on the ETA 9089. However, we cannot conclude that the Petitioner has established 
eligibility for the benefit sought, as further detailed below. Upon de novo review, we will withdraw 
the Acting Director's decision and remand the matter for entry of a new decision consistent with the 
following analysis. 
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 of $64,168 per year, from the priority date on March 6, 2023. Although the record includes the 
Petitioner's federal tax return for 2021, this evidence is before the priority date and does not 
demonstrate the Petitioner's continuing ability to pay the proffered wage. 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 I-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 tiling'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 I-140 petitions for more than 800 other beneficiaries in the last year. Thus, 
the Petitioner must establish its ability to pay this Beneficiary as well as the beneficiaries of the other 
Form I-140 petitions that were pending or approved as of, or filed after, the priority date of the current 
petition. 
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Therefore, we will remand the matter to the Director to request additional evidence, if deemed 
appropriate, and analyze the record and determine whether the Petitioner has established its ability to 
pay the proffered wage to this Beneficiary, and the beneficiaries of its other petitions, from the priority 
date onward. On remand, the Director should request such regulatory-required evidence and allow 
the Petitioner reasonable time to respond. 
II. CONCLUSION 
The Acting Director's decision is withdrawn. However, the record does not demonstrate affirmatively 
that the Petitioner is eligible for the benefit sought, including whether the Petitioner can establish that 
it has the ability to pay the proffered wage to the Beneficiary as required by 8 C.F.R. § 204.5(g)(2). 
Therefore, we will remand this case to the Director for further consideration of the Petitioner's 
eligibility for the requested benefit. The Petitioner bears the burden of proof to demonstrate eligibility 
by a preponderance of the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
ORDER: The Acting 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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