sustained EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 28, 2024 In Re: 30317364 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, an eye surgery center, seeks to employ the Beneficiary as a registered nurse. The 
company requests her classification under the employment-based, third-preference (EB-3) immigrant 
visa category as a "professional." See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). U.S. businesses may sponsor noncitizens in this 
category to permanently work in jobs requiring at least bachelor's degrees. Id. 
The Director of the Nebraska Service Center denied the petition. 1 The Director concluded that the 
petition's accompanying labor certification application does not meet U.S. Department of Labor 
(DOL) requirements . On appeal, the Petitioner contends that the Director erred. 
The Petitioner bears the burden of demonstrating eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Exercising de novo appellate review, 
see Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015), we conclude that, contrary to 
the Director's decision, the company filed the petition more than 30 days after its notice had remained 
posted for the required minimum period and that the notice otherwise complied with DOL regulations . 
We will therefore sustain the appeal. 
I. LAW 
Immigration as a professional usually follows a three-step process. First, to permanently fill a position 
in the United States with a noncitizen, a prospective employer must seek DOL certification. See 
section 212(a)(5)(A)(i) of the Act, (A)(i). Second, if DOL approves a position, an employer next 
submits 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. § 1154(a)(l)(F) . Finally, if 
USCIS 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. 
1 The Director's decision states that the Petitioner requested the Beneficiary's EB-3 classification as a "skilled worker." 
See section 203(b)(3)(A)(i) of the Act. But, in Part 2 of the Form I-140, Petitioner for Alien Workers, the company marked 
the box for a professional. The Director's error was not material, and the Petitioner did not raise the issue on appeal. 
DOL, however, has already determined that the United States lacks sufficient "professional nurses" 
and that noncitizens' employment in these "Schedule A" jobs would not harm the wages or working 
conditions of U.S. employees in similar jobs. 20 C.F.R. § 656.5. As Schedule A employers need not 
test the U.S. labor market, DOL authorizes users to apply DOL regulations and adjudicate labor 
certification applications in Schedule A petitions. 20 C.F.R. § 656.15(a). Thus, here, users rules 
not only on the petition, but also on its accompanying labor certification application. See 20 C.F.R. 
§ 656.15( e) ( describing users' Schedule A labor certification determinations as "conclusive and 
final"); see generally 6 USCIS Policy Manual E.(7)(A) (providing background on Schedule A 
petitions). 
II. ANAL YSrS 
A petition for a Schedule A occupation must include a labor certification application. 20 C.F.R. 
§ 656.15(a). To obtain an application's approval, a petitioner must demonstrate that it provided a 
"notice of filing" (NOF) to either the bargaining representative of its other employees in the 
occupation, or - if no such representative exists - to the employees themselves. 20 C.F.R. 
§ 656.15(b )(2). When notifying employees, a petitioner must post a NOF at the worksite for at least 
10 consecutive business days. 20 C.F.R. § 656.10( d)(l )(ii). The notice must be "clearly visible and 
unobstructed," posted "in conspicuous places where the employer's U.S. workers can readily read the 
posted notice on their way to and from [the worksite]." Id. 
A NOF must: 
• State that its posting stems from the proposed filing of a labor certification application for the 
relevant job; 
• State that "any person may provide documentary evidence bearing on the application to the 
[DOL Certifying Officer (CO)];" 
• Provide "the address of the appropriate [CO];" and 
• "Be provided between 30 and 180 days before filing the [labor certification] application [ with 
a petition]." 
20 C.F.R. § 656.10( d)(3)(i-iv). 
Because a union does not represent nurses at the Petitioner's surgery center, the company posted a 
NOF to employees at the worksite from June 26, 2023 to July 21, 2023. The company filed the labor 
certification application with the petition on August 10, 2023 -20 days after the removal of the NOF's 
posting. The Director therefore found that - contrary to 20 C.F.R. § 656.10( d)(3)(iv) - the Petitioner 
filed the petition less than 30 days after the NOF's removal. 
On appeal, the Petitioner contends that it complied with 20 C.F.R. § 656.10( d)(3)(iv). The company 
argues that its NOF reached the requisite posting period of 10 consecutive business days on July 10, 
2023 - 31 days before the petition's filing. Thus, the Petitioner argues that - consistent with the 
regulation - the company provided the requisite notice to employees more than 30 days before filing 
the application and petition. 
2 
DOL policy supports the Petitioner's interpretation of 20 C.F.R. § 656.10( d)(3)(iv). DOL has publicly 
stated that "the Notice of Filing must be posted for 10 consecutive business days during the 30-to-
180-day window prior to filing the [labor certification] application." DOL, Emp't & Training Admin., 
OFLC [Office of Foreign Labor Certification] Frequently Asked Questions and Answers, "Notice of 
Filing," No. 10, www.dol.gov/agencies/eta/foreign-labor/faqs/print ( emphasis added). Here, the 30-
to-180-day window preceding the filing of the labor application with the petition ran from July 11, 
2023 to January 12, 2023. The Petitioner demonstrated that, within that window, it posted its NOF 
for 10 consecutive business days, and the requisite 30 days elapsed prior to filing. 2 
For the foregoing reasons, the Director erred in denying the labor certification application and petition 
based on the Petitioner's timing of its NOF posting. We have examined the company's filing notice 
and find that it otherwise complies with the regulations at 20 C.F.R. § 656.10(d)(3)(i-iv). We will 
therefore sustain the appeal. 
ORDER: The appeal is sustained. 
2 The Board of Alien Labor Certification Appeals (BALCA) has not contravened DOL's interpretation of the 30- to 180-
day period. In fact, in one case, BALCA assumed (without finding) that- if the business's NOF remained pending at least 
10 consecutive business days during the 30- to 180-day window - an employer could meet the requirement at 20 C.F.R. 
§ 656.10(d)(3)(iv). See Matter ofE. Carolina Univ., 2010-PER-01472 *4 (BALCA Jan. 12, 2011) ("assuming that the 
Employer could have filed the application 30 days after the end of the earliest 10 consecutive business days of its posting"). 
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