remanded EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
In Re: 12266813 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 16, 2021 
The Petitioner seeks to employ the Beneficiary as a staff 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, "EB-3" 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 Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that a full-time, permanent bona fide job offer exists because of inconsistencies in the work 
location as listed on the notice of filing and the Beneficiary's employment contract. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361; MatterofChawathe, 25 l&N 
Dec. 369, 375 (AAO 2010). The Administrative Appeals Office (AAO) reviews the questions in this 
matter de nova. See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 
review , we will withdraw the decision of the Director . The matter is remanded for the entry of a new 
decision consistent with the analysis below. 
I. EMPLOYMENT-BASED IMMIGRATION 
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 the 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. 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. 
Here, the petition was submitted on July 30, 2019, with an uncertified ET A 9089 describing the 
Petitioner's job opportunity of staff nurse. The ETA 9089 lists the minimum requirements for a staff 
nurse as an associate' s or foreign equivalent degree in nursing and a New York State registered nursing 
license. The Petitioner also submitted evidence of the Beneficiary's qualifications for the offered 
position. 
The Petitioner lists its main office address as~---------~New York. The Petitioner 
states on the petition and ETA 9089 that the primary worksite for the job opportunity is a different 
address atl INew York. As required by 20 C.F.R. § 656.15(b)(l the Petitioner 
also submitted the determination of the prevailing wage listing one worksite address a 
I INewYork. ~---~ 
II. ANALYSIS 
The Petitioner is a healthcare staffing provider with 85 employees. The record includes a signed 
employment agreement dated July 17, 2019, between the Petitioner and the Beneficiary to provide staff 
nurse services at locations assigned by the Petitioner. The record also includes a contract between the 
Petitioner and its client to provide nurse staffing at the client's facility located at thel I 
location. Additionally, the Petitioner provided an itinerary for the Beneficiary, stating the Beneficiary's 
offer of emploriment for a period of three years at the assigned work location of its client's facility at the 
I location. 
The Petitioner provided evidence that it posted the position in accordance with 20 C.F.R. § 656.10( d), 
as required for Schedule A eligibility. 1 The notice of filing and the ETA 9089 list the location of 
1 20 C.F.R. § 656.10( d) states: 
(1) In applications filed under§ 656.15 (Schedule A) ... the employer must give notice of the filing 
of the Application for Pennanent Employment Certification and be able to document that notice 
was provided, if requested by the certifying officer as follows: 
(i) To the bargaining representative(s) (if any) of the employer's employees ... 
(ii) If there is no such bargaining representative, by posted notice to the employer's employees 
at the facility or location of the employment ... 
(3) The notice of the filing of an Application for Permanent Employment Ce1iification must: 
(i) State the notice is being provided as a result of the filing of an application for permanent 
alien labor certification for the relevant job opportunity; 
(ii) State any person may provide documentary evidence bearing on the application to the 
Certifying Officer of the Department of Labor; 
(iii) Provide the address of the appropriate Certifying Officer; and 
(iv) Be provided between 30 and 180 days before filing the application. 
(6) If an application is filed under the Schedule A procedures ... the notice must contain a 
description of the job and rate of pay, and must meet the requirements of this section. 
2 
employment as the Petitioner's client's facility a~ I in ~I ______ T_h_e_d_e_te~rmination of 
the prevailing wage also lists the work location of the client's facility at thd b location. 2 
The Director denied the petition, as he found inconsistencies in the work location as listed in the 
employment agreement and other supporting documents. Specifically, the Director stated that the 
employment agreement "allows the Petitioner to relocate the Beneficiary without providing proper 
posted notice of the job opportunity ... per 20 C.F.R. § 656.l0(d) ... " The Director concluded that, 
due to these inconsistencies, there did not appear to be a foll-time permanent bona fide job offer. 
On appeal, the Petitioner asserts that a foll-time permanent bona fide job offer exists, and that it 
properly and consistently stated the Beneficiary's proposed work location at its client's facility, the 
I I location. The Petitioner also submits time sheets and pay stubs for the 
Beneficiary, demonstrating that the Beneficiary has been working at the client's facility from 
December 2019 to April 2020. The Petitioner states that the Beneficiary has been working "at the 
same worksite where he will stay up until the end of his contract." 
As an initial matter, contrary to the Director's decision, the regulations at 20 C.F.R. § 656.l0(d) do not 
require a Schedule A Petitioner to include the exact work location for the job opportunity on the notice 
of filing. A notice of filing must, however, be posted as set forth below.3 
According to Question 12 in the Notice of Filing section of the Department of Labor's PERM 
Frequently Asked Questions portion of its website: 4 
If the employer knows where the Schedule A employee will be placed, the employer 
must post the notice at that work-site(s) where the employee will perform the work and 
publish the notice internally using in-house media--whether electronic or print--in 
accordance with the normal internal procedures used by the employer to notify its 
employees of employment opportunities in the occupation in question. The prevailing 
wage indicated in the notice will be the wage applicable to the area of intended 
employment where the worksite is located. 
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. 
If the work-site(s) is unknown and the staffing agency has no clients, the application 
would be denied based on the fact that this circumstance indicates no bona-fide job 
2 In answer to question 7 on the Application for Prevailing Wage Determination, Form ETA 9141, ·'Will work be performed 
in multiple worksites within an area of intended employment or a location( s) other than the address listed above?" the Petitioner 
answered "No." 
3 20 C.F .R. § 656.10( d)( 6) states that the notice "must contain a description of the job and rate of pay." 
4 See OFLC Frequently Asked Questions and Answers, https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!234 (last 
visited January 1 L 2021). 
3 
opportunity exists. The employer cannot establish an actual job opportunity under this 
circumstance. A denial is consistent with established policy in other foreign labor 
certification programs where certification is not granted for jobs that do not exist at the 
time of application. 
Here, the Petitioner's notice of filing states that notice was posted on the "HRD Bulletin Board" at its 
main office address, at the client's facility at thel I location, and on the Petitioner's 
website.5 However, the Beneficiary's itinera= states that the Beneficiary's work assignment at the 
Petitioner's client's facility at I I is only valid for a term of three years. The 
employment agreement between the Petitioner and the Beneficiary states that the "initial term" of 
employment is for a period of three years, which, ''unless otherwise terminated under this Agreement, ... 
shall be automatically extended for a period of one year, for each successive year ... " The Beneficiary's 
itinerary does not contain similar language or indicate that the term of three years of employment at the 
client's facility may be extended under any circumstances. Because the Petitioner states in its brief on 
appeal that this is the work location of the Beneficiary "until the end of his contract," it appears that the 
Beneficiary's assignment at the posted location is not permanent and that he may be assigned to work at 
other locations that the Petitioner has not identified and did not list on the ETA 9089 or on the prevailing 
wage determination. The Petitioner should be given an opportunity to address this inconsistency on 
remand. The Petitioner must resolve inconsistencies with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
We will remand the matter to the Director to request additional evidence, if deemed appropriate, and 
analyze the record and determine whether the Petitioner's posting of the notice of filing at its main office 
and one client location was sufficient. The Director may wish to consider whether the Petitioner has other 
current clients where a notice of filing was required, if the Petitioner intended to later place the Beneficiary 
elsewhere, and did not know the locations where the Beneficiary might be placed. The Director may also 
wish to consider whether the Petitioner's normal internal procedure to notify its employees of 
employment opportunities is to post notice on a bulletin board located at its main office. Additionally, 
the Director may wish to consider whether the petition was accompanied by a properly completed 
prevailing wage determination for all work locations for the Beneficiary, as required by 20 C.F.R. 
§ 656.15(b)(l). 
III. ABILITY TO PAY 
Although not discussed by the Director in the decision, the record does not contain regulatory-required 
evidence of the Petitioner's ability to pay the proffered wage of $68,640 per year from the priority 
date on July 30, 2019, and continuing until the beneficiary obtains lawful permanent residence. 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-prescribed evidence of the Petitioner's ability to pay for 2019. 
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. 
5 We note that the Petitioner's mam office address appears to be a residential address. See 
https://www.zillow.com/homedetail~~-----------------~' (visited January 13, 2021 ). 
4 
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 at least 75 other beneficiaries . 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. 
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. 
IV. CONCLUSION 
Considering the above discussed deficiencies, we are withdrawing the Director's decision. However, 
the record does not demonstrate affinnatively that the Petitioner is eligible for the benefit sought, 
including whether the Petitioner has the ability to pay the proffered wage to the Beneficiary as required 
by 8 C.F.R. § 204.5(g)(2), and whether the Petitioner properly posted the notice of filing at all required 
locations. Therefore, we will remand this case to the Director for further consideration of the 
Petitioner's eligibility for the requested benefit. 
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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