DATE: FEB 0 1 2013 I
I I INRE:
I
I
Petitioner:
Beneficiary:
OFFICE: TEXAS SERVICE CENTER
U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
' 20 Massachusetts Ave., N.W., MS 2090
Washington, DC 20529-2090
U.S. Citizenship and Immigration
Services
FILE:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
I ON BEHALF OF PETITIONER:
I
I .
INSTRUCTIONS:
EndJed please find the decision of the Administrative Appeals Office in yo.ur case. All of the documents I related to this matter have been returned to the office that originally decided your case. Please be advised that any fu!rther inquiry that you might have concerning your case must be made to that office. I Thank; you,
©12berg
Actin~ Chief, Administrative Appeals Office www.uscis.gov
Page:~
DISC1USSION: The employment-based immigrant visa petition was denied by the Director, Texas Service Center (Director). It is now on appeal before the Acting Chief, Administrative Appeals Offic~ (AAO). The appeal will be sustained, and the petition approved.
The Jetitioner is a patient care, education, and research organization. It seeks to permanently empldy the beneficiary in the United States as a nurse practitioner and requests that he be classified as an kdvanced degree professional pursuant to section 203(b)(2) of the Immigration and Nationality I .
Act (the Act), 8 U.S.C. § 1153(b)(2).
The p~tition is for a Schedule A occupation. A Schedule A occupation is one codified at 20 C.F.R. § 656.5(a) for which the U.S. Department of Labor (DOL) has determined that there are not I sufficient U.S. workers who are able, willing, qualified and available and that the wages and worki ng conditions of similarly employed U.S. workers will not be adversely affected by the empl~yment of aliens i~ such occupations. The current list of Scpedule A occupations includes professional nurses. /d.
The pJetition was denied by the Director on the ground that the proffered position did not qualify for I
Schedule A designation in accordance with 20 § C.F.R. 656.5(a). Furthermore, since the ETA Form I
9089 in the record was not certified by the DOL, the petition could not otherwise be approved under sectidn 203(b )(2) of the Act because it was not accompanied by the requisite labor certification from I the DOL.
I
The betitioner filed a timely appeal, supplemented by a brief from counsel and supporting docurhentation. The AAO conducts appellate review on a de novo basis. See Soltane v. DOl, 381 I
F.3d 143, 145 (3d Cir. 2004).
PetitJ ms for Schedule A occupations do not require the petitioner to test the labor market and obtain a certifi ed ETA Form 9089 from the DOL prior to filing the petition with U.S. Citizenship and Immi~ration Services (USCIS). Instead, the petition is filed directly with USCIS with an uncertified ETA Form 9089 in duplicate. See 8 C.F.R. §§ 204.5(a)(2) and (k)(4); see also 20 C.F.R. § 656.15. If thJ Schedule A occupation is a professional nurse, the petitioner must establish that the beneficiary has a Certificate from the Commission on Graduates of Foreign Nursing Schools I
(CGF:NS); or a permanent, full and unrestricted license to practice professional nursing in the state of intended employment; or passed the National Council Licensure Examination for Registered Nurses .I
(NCIJEX-RN). See 20 C.F.R. § 656.5(a)(2). .
Petiti1ns for Schedule A occupations must also contain evidence establishing that the employer provi ~jed its U.S. workers with notice of the filing of an ETA Form 9089 (Notice) as prescribed by 20 C.f.R. § 656.10(d), and a valid prevailing wage determination (PWD) obtained in accordance with 20 C.F.R. § 656.40 and 20 C.F.R. § 656.41. See 20 C.F.R. § 656.15(b)(2).
For tL Notice requirement, the emplo;er must provide notice of the filing of an ETA Form 9089 to any ~argaining representative for the occupation, or, if there is no bargaining representative, by posteij notice to its employees at the location of the intended employment. See 20 C.F.R. § 6561.10(d)(1).
The regulation at 20 C.F.R. § 656.10(d)(3) states that the Notice shall:
I
(i) State that 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 that any person may provide documentary evidence bearing on the 1 application to the Certifying Officer of the Department of Labor;
1 (iii) Provide the address of the appropriate Certifying Officer; and I (iv) Be provided between 30 and 180 days before filing the application.
I
Notic~s for Schedule A occupations ~ust also contain a description of the job offered and the rate of pay. See 20 C.F.R. § 656.10(d)(6).
The Jidence of record establishes that the petitioner met all of the documentation requirements discu~sed above before the petition was filed.
I ,
Based on the entire record, the AAO determines that the Director erred in finding that the proffered positibn does not qualify for Schedule A designation. Accordingly, the Director's decision will be withd rawn.
I
To bej eligible for the classification requested in the petition, a beneficiary must have all the education, training, and experience specified on the labor certification as ofthe petition's priority date. See Matter of Wihg 's Tea House, 16 I&N 158 (Act. Reg. Comm. 1977). The petitioner must also establish its contirluing ability to pay the proffered wage to the beneficiary from the priority date up to the prese1!1t. See 8 C.F.R. § 204.5(g)(2). The priority date of the instant petition is Septe~ber 25, 2009-the da te the Immigrant Petition for Alien Worker (Form I-140) was filed with USCIS.1 Upon I review of the entire record, the AAO concludes that the beneficiary had a)! the education, trainiqg, and experience 1specified on the ETA Form 9089 as of the priorit date. In particular, the beneficiary was awarded a Master of Science in Nursing by the on Augu~t 25, 2002; was employed for over four years (May 2004 to June 2008) as a Cardiology Nurse Practihoner bv the and on June 4, 2008 was recognized by the as an Advanced Practice Nurse and granted "prescriptive authorization" for the
"recognition type" of Nurse Practitioner-Adult Nurse Practitioner. The AAO also determines that the petitidner has established its continuing ability to pay the proffered wage from the priority date onward. Acco~dingly; the petition is approved under section 203(b)(2) of the Act, 8 U.S.C. § 1153(b)(2), for classification of the beneficiary as an advanced degree professional.
I
· The bhrden of proof in these proceedings rests solely with the petitioner. See SeCtion 291 of the Act, I
I
8 U.s.f. § 1361. The petitioner has met that burden.
ORDER: The appeal is sustained. The petition is approved.
I