remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 25463031 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 15, 2023 
The Petitioner provides rehabilitation services and seeks to permanently employ the Beneficiary as a 
registered nurse . The company requests her classification under the third-preference, immigrant visa 
category 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). This category allows prospective, U.S. employers to sponsor noncitizens 
for lawful permanent residence to perform work requiring at least two years of training or experience. 
Id. 
The Director of the Nebraska Service Center denied the petition . The Director concluded that the 
offered position's requirements do not establish its need for at least two years of training or experience. 
On appeal, the Petitioner contends that the Director overlooked the job's requirement for a California 
registered nursing license. The company asserts that the license, in turn, requires at least two years of 
post-secondary education, which - for immigration purposes - counts as training. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of evidence . Matter of Chawathe, 25 I&N Dec . 369, 375-76 (AAO 2010) . Exercising 
de novo appellate review, see Matter of Christa 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015), we 
will withdraw the petition's denial and remand the matter for entry of a new decision consistent with 
the following analysis. 
I. LAW 
Immigration as a skilled worker usually follows a three-step process. First, to permanently fill a 
position with a foreign worker, a prospective, U.S. employer must obtain certification from the U.S. 
Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i) . 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). Section 204(a)(l)(F) 
of the Act, 8 U.S.C. § l 154(a)(l)(F) . Finally, ifUSCIS grants a petition, a noncitizen beneficiary may 
apply abroad for an immigrant visa or, if eligible, "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 sufficient nurses and that 
employment of noncitizens in these "Schedule A" positions will not harm the wages or working 
conditions of U.S. workers in similar jobs. 20 C.F.R. § 656.5. Thus, DOL authorizes USCIS, in 
immigrant visa petition proceedings, to adjudicate Schedule A labor certification applications. 
20 C.F.R. § 656.15(a). Therefore, USCIS rules not only on this petition, but also on its accompanying 
labor certification application. See 20 C.F.R. § 656.15(e) (describing USCIS's Schedule A labor 
certification determinations as "conclusive and final"). 
II. ANALYSIS 
An application for Schedule A designation of a skilled worker position must demonstrate that the job 
requires at least two years of training or experience. 8 C.F.R. § 204.5(1)(2), (4). "Relevant post­
secondary education may be considered as training for the purposes of this provision." 8 C.F.R. 
§ 204.5(1)(2) ( defining the term "skilled worker"). 
The Petitioner's Schedule A application (and its request for a prevailing wage determination) specifies 
that the offered position of registered nurse requires neither education, training, nor experience. Part 
H.14 of the application, "Specific skills or other requirements," states the job's need for "Current RN 
licensure from the State of Practice." As the Petitioner offers the position in California, part H.14 
indicates the job's need for a California registered nursing license. 
The Petitioner's Schedule A application does not specify the underlying requirements for a California 
registered nursing license. On appeal, however, the company submits evidence that the license 
generally requires at least an associate of science degree in nursing. 1 See Cal. Bd. of Registered 
Nursing, "Steps to Become a California Registered Nurse," https://www.rn.ca.gov/careers/ 
steps.shtml. Associate nursing degrees require at least two years of post-secondary studies. Id. And, 
under 8 C.F.R. § 204.5(1)(2), USCIS would consider this relevant, post-secondary education as 
training. Thus, the Petitioner contends that, consistent with the requested immigrant visa category, 
the Schedule A application demonstrates the position's requirement of at least two years of training. 
Interpreting the Schedule A application as a whole, its job requirements appear to contradict each 
other. See Matter of Symbioun Techs., Inc., 2010-PER-01422, *5 (BALCA Oct. 24, 2011) (making 
"a comprehensive reading" of the job-offer portion of a labor certification application to determine a 
position's minimum requirements). Asked to indicate the job's minimum level ofrequired education 
in part H.4 of the application, the Petitioner marked "None." Yet, as the company's evidence shows, 
the license requirement in part H.14 implicitly requires education. Faced with this apparent 
contradiction, the Director should have issued a RFE or NOID, providing the Petitioner a chance to 
explain the position's requirements. See l USCIS Policy Manual E(6)(F)(3), https://www.uscis.gov/ 
policy-manual ("If ... the evidence in the record does not establish eligibility for the benefit sought, 
the officer should issue an RFE or NOID"). 
1 If a petitioner received notice of an evidentiary deficiency and a prior chance to submit the proof, we generally do not 
accept the evidence on appeal. See Matter of Izaguirre, 27 l&N Dec. 67, 71 (BIA 2017) (citation omitted). Before denying 
this petition, however, the Director did not request additional evidence (RFE) or issue a notice of intent to deny (NOID). 
See 8 C.F.R. § 103.2(b)(8)(iii). We will therefore consider the appellate evidence. 
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Because the Director has not seen the Petitioner's appellate evidence, we will withdraw the petition's 
denial and remand the matter. On remand, the Director should consider the evidence and determine 
whether it establishes the offered position's need for a skilled worker. The Director should also: 
review the entire record; consider the petition's compliance with all other applicable laws, regulations, 
and policies; and enter a new decision. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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