sustained EB-3 Case: Healthcare

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re : 26274825 Date : MAY 10, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a healthcare service provider , seeks to employ the Beneficiary as a registered nurse 
under Schedule A. It requests classification of the Beneficiary as a skilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act section 203(b)(3)(A)(i), 
8 U.S.C. § 1153(b )(3)(A)(i). This employment-based immigrant classification allows a U.S. employer 
to sponsor a noncitizen for lawful permanent resident status to work in a position that requires at least 
two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary is qualified for the position. Specifically, the Director found that 
Department of Labor (DOL) guidance precludes consideration of experience gained under a 
petitioning employer if the experience is in a position substantially comparable to the position sought. 
See 20 C.F.R. § 656 .17. 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 sustain the appeal. 
The DOL has determined that there are not sufficient U.S. workers who are able , willing, qualified , 
and available for certain occupations designated under Schedule A, which in relevant part includes 
workers who will be employed as professional nurses who hold a permanent, full, and unrestricted 
license to practice professional nursing in the state of intended employment. See 20 C.F.R. 
§ 656.5(a)(2)(ii) . An employer seeking labor certification for a Schedule A occupation must apply 
under 20 C.F.R. §§ 656 .10 and 656 .15. 20 C.F.R. § 656 .IO(a)(3) . 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 U.S. Citizenship and Immigration Services (USCIS) . Instead , the petition 
is filed directly with USCIS with an uncertified labor certification . See 8 C.F .R. § 204.5(a)(2); see also 
20 C.F.R. § 656.15. 1 Specifically , "[a]pplication for certification of employment as a professional 
1 The priority date of the petition is August 15, 2022, the date the completed , signed petition was properly filed with 
USCIS. See 8 C.F.R. § 204.S(d). 
nurse may be made only under§ 656.15(c) and not under§ 656.17." 20 C.F.R. § 656.15(c)(2). 2 
Therefore, the Director's application of the regulation at 20 C.F.R. § 656.17 is misplaced in this case. 
The record establishes that the State of Georgia Board of Nursing issued the Beneficiary a "Regisstered 
Prof Nurse" license in 2018 and it remains active. The record further establishes that 
University awarded the Beneficiary a bachelor of science in nursing degree, which satisfies the 
requirement provided on the labor certification that the Beneficiary has at least an associate's degree 
in nursing. Additionally, the Beneficiary's nursing experience working for the Petitioner satisfies the 
labor certification requirement of at least one year of nursing experience within the prior five years, 
and the record contains a BLS certification for the Beneficiary, as required by the labor certification. 
The record, considered in its entirety under the preponderance of evidence standard, establishes that 
the Beneficiary is qualified for the position sought. We withdraw the Director's conclusion to the 
contrary. 
ORDER: The appeal is sustained. 
2 Labor certifications for professional nurses "shall not be considered" under 20 C.F .R. § 656.17. 20 C.F .R. § 656.1 S(f). 
2