sustained EB-3 Case: Nursing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-H-H-S- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 13, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a home health care provider, seeks to employ the Beneficiary as a registered nurse. It 
requests her classification as a skilled worker under the third-preference immigrant category. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This 
category allows a U.S. business to sponsor a foreign national with at least two years of training or 
experience for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the position offered is a bona fide job opportunity open to U.S. workers. 
On appeal, the Petitioner submits additional evidence and asserts that Schedule A nurse petitions are 
exempt from seeking U.S. workers prior to filing the petition. Upon de nova review, we will sustain 
the appeal. 
A Schedule A occupation is an occupation codified at 20 C.F.R. § 656.5(a) for which the U.S. 
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 foreign nationals in such occupations. 
The current list of Schedule A occupations includes professional nurses and physical therapists. Id. 
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 a duplicate 
uncertified labor certification. See 8 C.F.R. § 204.5(a)(2); see also 20 C.F.R. § 656.15. 1 If USCIS 
approves the petition, the foreign national applies 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. 
Here, the Director indicated in his decision that the Petitioner "did not submit evidence to support that 
there are no qualified U.S. workers available for the position prior to filing the Form 1-140." He 
highlighted the Petitioner's certification of several conditions on the labor certification, including that 
the job opportunity has been and is clearly open to U.S. workers; that U.S. workers who applied for 
1 The priority date of the petition is January 15, 2019, the date the completed, signed petition was properly filed with 
USCJS. See 8 C.F.R. § 204.S(d). 
Matter of A-H-H-S- Inc. 
the job opportunity were rejected for lawful job-related reasons; and that the job opportunity is for 
full-time, permanent employment for an employer other than the Beneficiary. He noted that the 
Beneficiary was interviewed and hired for the position before its notice of posting for the offered job 
was posted, and that these actions contradicted the Petitioner's attestations on the labor certification. 
He also highlighted the Petitioner's recruitment of foreign nurses and noted that there was no evidence 
that it recruited U.S. workers for the job. He therefore determined that the position being offered is 
not a bona fide job opportunity. 2 
However, as previously noted, because of the Schedule A designation for the occupation of 
professional nurse, the DOL has already determined that there are not sufficient U.S. workers who are 
able, willing, qualified, and available for the offered job in this case. The Petitioner's identification 
of the Beneficiary prior to the filing of the Schedule A petition and its lack of recruitment of U.S. 
workers for the offered job does not indicate the lack of a bona.fide job opportunity. Rather, it indicates 
that the Petitioner adhered to DOL regulations in following Schedule A PERM 3 protocol after 
identifying a foreign national for the position. See, e.g., 20 C.F.R. §§ 656.10, 656.15. A Schedule A 
filing must include evidence of prearranged employment for the Beneficiary. A test of the U.S. labor 
market is not required. Thus, the Director erred in denying the petition for lack of a bona fide job 
opportunity, and we will therefore withdraw the Director's decision. 
The Director also appeared to find that the Petitioner intended to employ the Beneficiary outside the 
terms of the labor certification. A petitioner must be "desiring and intending to employ [ a foreign 
national] within the United States." Section 204(a)(l)(F) of the Act. It must intend to employ a 
beneficiary under the terms and conditions of an accompanying labor certification. See Matter of 
lzdebska, 12 I&N Dec. 54, 55 (Reg'l Comm'r 1966). However, because the Director did not support 
his finding with any relevant facts or analysis, we will withdraw the Director's decision on the issue 
of intent to employ the Beneficiary. 
The Petitioner has established by a preponderance of the evidence that its Schedule A petition for the 
position of registered nurse is approvable. We will therefore sustain the appeal. 
ORDER: The appeal is sustained. 
Cite as Matter of A-H-H-S-Inc., ID# 6059106 (AAO Sept. 13, 2019) 
2 Citing 20 C.F.R. § 656.10(c)(8), the Director stated that the labor certification employer must attest that "the job 
opportunity has ben and is clearly open to any U.S. worker." Citing Matter of Modular Container .S:vs., Inc., 89-TNA-228, 
1991 WL 223955, *7 (BALCA 1991) (en bane), he further stated that this "provision infuses the recruitment process with 
the requirement of a bona fide job opportunity; not merely a test of the job market." 
3 The regulatory scheme governing the labor ce1iification process is referred to by the acronym PERM, for Program 
Electronic Review Management. 
2