The Petitioner, a non-profit academic hospital, seeks to employ the Beneficiary as "Registered Nurse-The Director of the Nebraska Service Center denied the petition. The Director concluded that the proposed employment does not qualify the Beneficiary for the requested "Schedule A" designation.
The Petitioner bears the burden ofestablishing eligibility for the requested benefit. See section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the decision and remand the matter for entry of a new decision consistent with the following analysis.
Employment-Based Immigration
Immigration as an advanced degree professional usually follows a three-step process. First, to permanently fill a position in the United States with a foreign worker, a prospective employer obtains certification from the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1l 82(a)(5). If DOL approves a noncitizen to permanently fill 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 of the Act, 8 U.S.C. § 1154. Finally, if USCIS grants a petition, a designated noncitizen applies abroad for an immigrant visa or, if eligible, for adjustment of status in the United States. See section 245 o f the Act, 8 U.S.C. § 1255.
DOL, however, has already determined that the United States lacks professional nurses and that employment of noncitizens in these "Schedule A" positions will not harm the wages or working conditions of U.S. workers in similar jobs. 20 C.F.R. § 656.5. DOL therefore does not require employers to advertise professional nursing positions to U.S. workers in the general population and authorizes USCIS to adjudicate Schedule A labor certification applications in petition proceeding;. 20 C.F.R. § 656.15(a). Thus, in this matter, USCIS rules not only on the petition, but also on its The organization requests his classification under the second-Emergency-Executive Director." preference, immigrant category for members of the professions holding advanced degrees or their equivalents. See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A).
Like the Petitioner on appeal, we will hereafterreferto the offered position as "emergency nurse director." p. 2 accompanying labor certification application. See 20 C.F.R. § 656. l 5(e) (describing USCIS' labor certification determinations under Schedule A as "conclusive and final").
Professional Nurses
A petitionforanadvanceddegreeprofessionalmustincludeanapplicationforScheduleAdesignation a person who applies the art and science of nursing which reflects comprehension of principles derived from the physical, biological and behavioral sciences. Professional nursing generally includes making clinical judgments involving the observation, care and counsel of persons requiring nursing care; administering of medicines and treatments prescribed by the physician or dentist; and paiiicipation in the activities for the promotion of health and prevention of illness in others.
20 C.F.R. § 656.5(a)(3)(ii).
Before filing the petition and its accompanying Schedule A application, the Petitioner obtained a determination of the prevailing wage for the offered position of emergency nurse director. See 20 C.F.R. § 656. l 5(b)(l) (requiring employers seeking to employ Schedule A workers to comply with DOL's prevailing wage regulations at 20 C.F.R. §§ 656.40, 656.41). When noncitizens begin their sponsored employments, their labor certification employers must pay them at least the prevailing wages determined for their offered positions. 20 C.F.R. § 656.10(c)(1).
The Director found that DOL's prevailing wage determination (PWD) classifies the offered position solely under code 11-9111 ("Medical and Health Services Managers") of the U.S. government's Standard Occupational Classification (SOC) system. The Director noted the Petitioner's request on the PWD application for the position's classification under SOC code 29-1141 ("Registered Nurses"), which corresponds to different occupational titles than SOC code 11-9111. SOC code 11-9111 relates to positions such as "Health Information Managers," "Clinical Managers," and "Nursing Home Administrators." O*NET Online, "Summary Report for: 11-9111.00 Medical and Health Services Managers," https://www.onetonline.org/link/ summary/11-9111.00 (last visited Jan. 28, 2021). In contrast, the code proposed by the Petitioner, SOC code 29-1141, corresponds to positions such as "Registered Nurses," "Acute Care Nurses," "Advanced Practice Psychiatric Nurses," "Critical Care Nurses," and "Clinical Nurse Specialists." O*NET Online, "Summary Report for: 29-1141.00 Registered Nurses," https://www.onetonline.org/link/summary/ 29-1141.00 (last visited Jan. 28, 2021 ).
The regulation also allows "documentation to establish that the alien qualifies for one of the shortage occupations in [DOL's] Market Information Pilot Program." 8 C.F.R. § 204.5(k)(4)(i). DOL published a proposed rule for the pilot program. 58 Fed. Reg. 26077 (Apr. 30. 1993). But the agency never implemented the program Thus, that portion ofthe regulation is inapplicable. or an individual labor certification from DOL. 8 C.F.R. § 204 .5(k)(4)(i).
Schedule A application, asserting the organization's proposed employment of the Beneficiary as a professional nurse. See 20 C.F.R. § 656.5(a)(2) (describing Group I of Schedule A as including "[a]liens who will be employed as professional nurses").
DOL defines a "professional nurse" as:
The Petitioner submitted a
The Director's decision does not fully explain its reasoning. See 8 C.F.R. § 103.3(a)(l)(i) (requiring an adjudicating offer to "explain in writing the specific reasons for denial"). But the Director appears to have concluded that a Schedule A nursing position must correspond to an occupation under SOC code29-1141("RegisteredNurses"). Inherwrittennoticeofintenttodenythepetition,theDirector stated that "[t]he Medical and Health Services Managers categories [under SOC code 11-9111] do not require any nursing skills." The Director's decision states:
Despite the DOL specifically determining the job opportunity was actually a Medical and Health Services Manager under SOC Code 11-9111, the petitioner still filed the Form I-140 under the Schedule A category. Even though the petitioner requires the [Beneficiary] to have a nursing degree, it does notjustify the filing of the Form I-140 under the Schedule A category.
The Director thus found that the proposed employment does not qualify the Beneficiary as a professional nurse under Schedule A. Because the petition otherwise lacked an individual labor certification for the offered position, the Director denied the filing.
On appeal, the Petitioner notes that DOL's PWD classifies the offered position under both SOC codes 11-9111(medicalandhealthservicesmanagers)and29-1141(registerednurses). ThePWDliststhe SOCcodeoftheofferedpositionas"11-9111." Butinthedocument'ssectiontitled"AdditionalNotes Regarding Wage Determination," the PWD states: "The employer's job duties represent a combination of the occupation [11-9111 - Medical and Health Services Managers] and 29-1141-On part H.15 of the labor certification, however, the Petitioner indicated that the offered position does not involve a combination of job duties. A petitioner must resolve inconsistencies of record with independent, objective evidence pointing to where the truth lies.Inconsistencies in the record Matter o fHo, 19 I&N Dec. 582, 591 (BIA 1988). The record therefore does not establish the position's proper classification under both SOC codes 11-9111 and 29-1141.
Regardless, DOL regulations do not require a Schedule A nursing position to fall under a specific SOC code. Rather,apetitionermustdemonstrateabeneficiary'sproposedemploymentasa"professional nurse." 20 C.F.R. § 656.5(a)(2). Thus, the job duties of an offered position must correspond to the definition of the term "professional nurse" at 20 C.F.R. § 656.5(a)(3)(ii).
In dete1mining the proposed position's eligibility for Schedule A designation, the Director improperly focused on the PWD classification of the offered position. We will therefore withdraw her decision and remand the matter. On remand, the Director should examine the position's proposed job duties to determine whether the Beneficiary would work as a "professional nurse" as defined at 20 C.F.R. §656.5(a)(3)(ii). IftheDirectorfindsthattheposition'sjobdutiesdonotsufficientlycorrespondto Tf ajobopportunity has requirements described in a combination ofoccupations, DOL "default[s] directly totherelevant O*NET-SOC occupational code for the highest paying occupation." DOL, Employ't & TrainingAdmin.,Prevailing Wage Determination Policy Guidance, 4 (revised Nov. 2009), https://www.flcdatacenter.com/download/ NPWHC_Guidance_Revised_l 1_2009.pdf(lastvisited Feb. 1, 2021).
Registered Nurses." supports the Beneficiary's proposed employment as a professional nurse.
Thus, the Petitioner argues that, contrary to the Director's findings, the PWD p. 4 those of a "professional nurse," she should explain the deficiency to the Petitioner and request any additional evidence needed. If supported by the record, the Director may also notify the Petitioner of any additional, potential grounds of denial. The Director must provide the Petitioner with a reasonable opportunity to respond to allissuesraisedonremand. Uponreceiptofatimelyresponse,theDirectorshouldreviewtheentire record and issue a new decision.
Conclusion
The Director erred in determining the qualifications of the Petitioner's proposed employment for Schedule A designation. The Director must examine the offered position's job duties to detennine whether the Beneficiary would work as a "professional nurse."
ORDER: ThedecisionoftheDirectoriswithdrawn. Thematterisremandedforentryofanew decision consistent with the foregoing analysis.