sustained EB-3 Case: Nursing

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prevent clearly unwarranted
invasionofpersonalprivacy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship.
and Immigration
Services
FILE:
WAC 05 055 52430
Office: CALIFORNIA SERVICE CENTER Date: APR 19'Z007
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as-a Skilled Worker or Professional pursuant to section
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § lI53(b)(3)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
www.uscis.gov
DISCUSSION: The director, California Service Center, denied the immigrant visa petition. The matter is
presently before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.
The petitioner is a hospital. It seeks to. permanently employ the beneficiary in the United States as a
registered nurse. The petitioner asserts that the beneficiary qualifies for blanket labor certification pursuant to
20 C.F.R. § 656.10, Schedule A, Group I. The director denied the petition after determining that the
beneficiary was not qualified for the proffered position as there was no evidence of a Commission of
Graduates of Foreign Nursing Schools (CFGNS) certificate, an unrestricted state license to practice nursing,
or a letter from the state of intended employment (California) confirming that the beneficiary had passed the
NCLEX-RN 1 examination, and was eligible to practice nursing in the state of California, as of the December
15,2004 priority date. -
The record shows that the appeal is properly filed; timely and makes a specific allegation of error in law or
fact. The procedural history in this case is documented by the record and incorporated into the decision.
Further elaboration of the procedural history will be made only as necessary.
As set forth in the director's November 9, 2005 deniat the main issue in this case is whether or not the
petitioner established that the beneficiary had the requisite licensure to perform the duties of the proffered
position as of the priority date. -
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1I 53(b)(3)(A)(i),
provides for the granting of preference classification to qualified immigrants who are capable, at the time of
petitioning for classification under this paragraph, of performing skilled labor (requiring at least two years
training -or experience), not of a temporary nature, for which qualified workers are not available in the United
States.
In this case, the petitioner filed an Immigrant Petition for Alien Worker (Form 1-140) for classification of the
beneficiary under section 203(b)(3)(A)(i) of the Act as a registered nurse. Aliens who will be permanently
employed as professional nurses are listed on Schedule A as occupations set forth at 20 C.F.R. § 656.10 for
which the direCtor of the United States Employment Service has determined that there are not- sufficient
United States workers who are able, willing, qualified and available, and that the employment of aliens in
such occupations will not adversely affect the wages and working conditions of United States workers
similarly employed. Also, according to 20C.F.R. § 656.10, in effect prior to November 28,2005, aliens who
will be permanently employed as professional nurses must have (1) passed the CGFNS examination,or (2)
hold a full and unrestricted license to practice professional nursing in the [s]tate of intended employment.
The regulation at 8 C.F.R. § 204.5(a)(2) provides that a properly filed Form 1-140, must be "accompanied by any
required individual labor certification, application for Schedule A designation, or evidence that the alien's
occupation qualifies as a shortage occupation within the Department of Labor's Labor Market Information Pilot
Program." The priority date of any petition filed for classification under section 203(b) of the Act "shall be the
date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with
[Citizenship and Immigration Services (CIS)]." 8 C.F.R. § 204.5(d). Here,as preViously stated, the priority date
is December 15, 2004. --
1 NCLEX stands for National Council Licensure Examination for Registered Nurses.
Page 3,
The AAO takes a de novo look at issues raised in the denial of this petition. See Dor v. INS,891 F.2d 997,
1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). The AAO considers all
pertinent evidence in the record, including new evidence properly submitted upon appeal2. On appeal,
counsel submits a certificate from the International Commission on Healthcare Professionals, a division of
CGFNS, Philadelphia, Pennsylvania. This document states the beneficiary is certified as a registered nurse, as
of October 14, 2005. Counsel also submits a letter dated November 29,2005 from the Board of Registered .,
Nursing; Sacrament, California. _,staff services analyst, California State Board of Registered
Nursing, states that the Board issued a temporary license to the beneficiary on November 4, 2004 and that it
expired on Mary 4,2005. Ms.. also states that the temporary license was issued in lieu of a permanent
license as the beneficiary did not possess a valid social security number. Finally Ms. tates that a
permanent registered nurse license was issued as soon as a social security number was provided.
Counsel also resubmits a copy of an excerpt from a state of California website that discussed the issuance of
temporary nurse licenses by the Board of Registered Nursing to individuals who are eligible for temporary
licenses because they have passed NCLEX-RN in another state and hold an "active, current, and clear nursing
license." Counsel also resubmits a copy of the beneficiary's temporary registered nurse license issued by the
state of California on November 2004.
Counsel also submits a document from the Division of Professional Licensing Services, Certification and
Verification Unit, Albany, New York, that certified tha~ the beneficiary was issued a license for the practice
of registered nursing on March 20, 2004 based on her passage of the NCLEX test in March 2004. This
document also indicated that the beneficiary was registered as a nurse with the New York Board of Regents
until February 28,2007. Counsel also submits a copy of the beneficiary's state of New York nursing license
issued on March 20, 2004.
Finally, counsel submits a copy of an interoffi<:;ememorandum written by Acting Assistant
Commissioner, Office of Adjudications, dated December 20, 2002, entitled "Adjudication of Form 1-140
Petitions for Schedule-A Nurses Temporarily Unable to Obtain Social Security Cards.,,3
The record also contains a copy of the beneficiary's permanent nursing license issued by the state of
California Board of Registered Nursing issued on March 21, 2005, as well as a letter dated March 2, 2005
from the California Board of Registere.d Nursing to the beneficiary, that states the beneficiary met all other
licensing requirements except for submitting a valid U.S. social security number. This letter indicates that the
beneficiary filled out the bottom part of the letter and submitted her social security number to the state board
on March 15,2005.
2 The submission of additional evidence on appeal'is allowed by the instructions to the Form I-290B, which
are incorporated into the regulations by the regulation at 8 C.F.R. § 103.2(a)(1). The record in the instant case
provides no reason to preclude consideration of any of the documents newly submitted on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988).
3 Memorandum from . Acting Assistant Commissioner, Office of Adjudications,
Adjudication of Form 1-140 Petitions for Schedule-A NursesTemporarily Unable to Obtain Social Security
Cards, HQ70/6.13, (December 20,2002).
Page 4
With the initial petition, the petitioner submitted evidence of the academic coursework undertaken by the
benefidary at Kyungbuk College, Kyungsangbuk-do, Korea and Chodan Uniersity, Chonnam, Korea in
Nursing and the certifications of graduatiqn from both institutions.
On appeal, counsel states that prior to filing the instant petition, the California Board of Registered Nursing issued
. a temporary license to the beneficiary as evidence that she had met all licensing requirements except that she
lacked a social security number. Counsel then states that when the director issued his second request for further. .
evidence on August 18, 2005, requesting evidence that the beneficiary was eligible for a permanent California RN
license, the beneficiary was eligible for such licensure, except for the possession of a social security number.
Counsel also states that when the director's second request for further evidence was received, counsel contacted
the California Board of Registered Nurses to request a letter confirming the beneficiary's NCLEX-RN passage
and was told that it was no longer the policy of the California Board of Registered Nurses to issue such letters.
Counsel states that the Board did provide counsel with a copy of a letter issued to the beneficiary in March 2005
confirming that she had me,t all of the licensing requirements and would be issued a permanent license upon
submission of her social security number. Counsel also asserts that the Board also confirmed that although the
beneficiary had passed the NCLEX-RN exam and was eligible for the permanent license at the time the 1-140
petition was filed, the Board would not have issued such a letter' with regard to the missing social security
number, described by counsel as a "but for" letter, at that time. Counsel states that the Board referred counsel to
its website with instructions for the issuance of temporary license in lieu of a letter confirming the passage of
NCLEX-RN examination. Counsel states that the state agency informed her that only temporary licenses were
issued to nursing license applicants who had passed the NCLEX-RN exam.
The record reflected no permanent license or CGFNS examination results at the priority date:4 A petition may not
be approved if the beneficiary was not qualified at the priority date, but expects to become eligible at a subsequent
time. Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). The statute relates eligibility for the immigrant visa
to the status of the labor certification at the date of the 1-140 petition for classification, the priority date. See
203(b)(3)(C) of the Act, 8 U.S.c. § 1153(b)(3)(C). Department of Labor regulations limit the petitioner's alternatives
for Schedule A under the ETA 750 to the beneficiary's state license or successfulCGFNS examination results. See
20 C.F.R. § 656.22 (c)(2). The petitioner applies for labor certifications for Schedule A occupations directly to CIS,
and the Department of Labor does not review them. Hence, regulations authorize CIS officers to determine the
petitioner's compliance. See 20 C.F.R. §§ 656.22(a) and (e), § 656.20(c), and 8 C.F.R. §§ 204.5(a)(2), (d), and (g)(l).
However, the record of proceeding does contain evidence pertaining to the beneficiary's passage of the NCLEX­
RN examination prior to the filing date of the petition. The documentation submitted by counsel from the State of
New York establishes that the beneficiary passed the NCLEX-RN test and that she held an active state of New
York license valid until 2007.
5
As stated previously, on appeal, counsel also references a guidance memorandum
from Thomas E. Cook, dated December 20, 2002. It considered the approval, of 1-140 petitions when the nurse
could not obtain a permanent nursing license in the state of intended employment based on the lack of a social
security number. If the petitioner met all requirements for Schedule A classification under the ETA 750, the 2002
4 The record does reflects that the state of California issued the beneficiary a permanent registered nurse license
on March 21, 2005, after the priority date filing of December 15,2004.
5 While the beneficiary passed the NCLEX-RN examination, based on the Form ETA 750 filed with the instant
petition, she did not work in the state of New York as a registered nurse, or elsewhere in the United States prior to
the submission of the instant petition.
."
Page 5
memorandum instructed directors of service centers and AAO and other CIS officials to consider successful
NCLEX-RN results favorably. Since they satisfy § 2l2(r)(2)of the Act, 8 U.S.c. § 1182(r)(2), a fortiori, they
fulfill terms of 20 C.F.R. § 656.22 (c)(2) for the alternative of approval of the 1-140; based on successful
examination results. This guidance memorandum did not add the NCLEX examination result to the adjudication
process, but rather expanded the list of criteria available for proving eligibility at the 1-140 stage. With regard to
CIS concerns over the proof of permanent state licensure, the Cook memorandum states that:
provided that all other requirements applicable to the petition are met, Service Centers can
favorably consider the 1-140 petition for a foreign nurse, as being eligible fora schedule A labor
certification, upon presentation of a certified copy of a letter from the state of intended employment
which confirms that the alien has passed the NCLEX-RN examination and is eligible to be issued a
license to practice nursing in that state.
The AAO acknowledges that the beneficiary received a temporary nursing license from the state of California
prior to the December 15, 2004 priority and filing date. The AAO also acknowledges that at the time of the
filing of the petition, the beneficiary had passed the NCLEX-RN examination, although the record does not
contain evidence of a certified letter from thestate of California as to the beneficiary's ability to be issued a
license to practice nursing. .
With regard to the guidance contained in !he Cook memorandum, the AAO also acknowledges that passage of
the NCLEX-RN examination as evidence of permanent registered nursing licensure has been codified by the
Department of Labor in its recently revised regulations for Schedule A applications.6 Upon review of the
record, the AAO finds counsel's explanation of why a certified letter was not provided to the record to be
.reasonable. The additional correspondence from the state of California Board of Registered Nursing and its
website also provides sufficient additional evidence to support counsel's assertion that the beneficiary
received her temporary nursing license from the state of California by virtue of having passed the NCLEX­
RN exam. Therefore, the record of proceeding reflects that the beneficiary passed the NCLEX-RN exam and
was eligible to be issued a license to practice nursing in California, the state of intended employment. Thus,
the petitioner has esta.blishedthat as of the filing date, the beneficiary was qualified to perform the duties of
the proffered position. .
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8
U.S.c. § 1361. Here, the petitioner has sustainedthat burden. The appeal is sustained.The petition is approved.
ORDER: The appeal is sustained.
6 New DOL regulations concerning labor certifications went into effect on March 28, 2005. The new
regulations are referred to by DOL by the acronym PERM. See 69 Fed. Reg. 77325; 77326 (Dec. 27, 2004).