The Petitioner, al t seeks to employ the Beneficiary as a charge nurse manager. The Petitioner requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree 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 Beneficiary possesses an advanced degree or a baccalaureate degree and five years of progressive experience in the specialty. He also determined that the prevailing wage determination (PWD) submitted with the petition states different requirements for the offered job than those listed on the uncertified labor certification application, and that as such the PWD is not valid for the submitted petition.
On appeal, the Petitioner submits additional evidence and asserts that the Beneficiary has a baccalaureate degree and five years of progressive experience. It further states that the discrepancy between the labor certification and the PWD is not a substantive one and that the requirements listed on the PWD meet the requirements for a Schedule A occupation regardless of the experience required.
Upon de novo review, we will dismiss the appeal.
Law and Analysis
A. Employment-Based Petitions for Schedule A Occupations
A Schedule A occupation is an occupation codified at 20 C.F.R. § 656.S(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 cunent list of Schedule A occupations includes professional nurses and physical therapists. Id.
U.S. Citizenship and Immigration Services DATE: MAY21,2019
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.
B. Beneficiary's Qualifications
The Director determined that the Beneficiary does not meet the requirements of the labor certification. A beneficiary must meet all of the requirements of the offered position set forth on the labor certification by the priority date. 8 C.F.R. § 103.2(b)(l), (12); Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977).
The labor certification requires a master's degree in nursing or a bachelor's degree and five years of experience. 2 The labor certification states that the Beneficiary qualifies for the offered position based on a bachelor's degree in nursing completed in 2009 atl lof Nursing in India. The record contains the Beneficiary's transcripts and bachelor of science in nursing degree issued by I IofNursing in India in 2006. The issue on appeal is whether the Beneficiary has five years of post-baccalaureate experience.
The labor certification lists her experience as follows:
Assistant nurse manager atl !Hospital I J Florida, from April 15, 2014, to Registerednurseat....._l_____.IHospitall.____,IIndiafromMarch19,2007,throughJune the date the labor certification was filed on December 21, 2016;
12, 2008;3 and
- Registered nurse at ._________________. India from February 2006 to August 2007.4 1 The priority date ofthe petition is December 21, 2016, the date the completed, signed petition was properly filed with USCIS. See 8 C.F.R. § 204.5(d).
I
IHospital in
Matter ofF-H-
With the petition, the Petitioner submitted a letter dated June 12, 2008, from I , J India certifying the Beneficiary's employment as "staff' from March 19, 2007, through June 12, 2008. 5 The initial submission also included an evaluation of the Beneficiary's education and work experience from .____---.__________..,. dated December 28, 2015. Although the evaluation referenced the Beneficiary's 8 1⁄2 years of rperienr with.I IHospital and I I Hospital, the Petitioner did not submit a letter from Hospital confirming the Beneficiary's experience there.
In a request for evidence (RFE), the Director stated that the letter froml IHospital was insufficient to establish the required 60 months of experience. He requested additional letters from the Beneficiary's prior employers. In response, the Petitioner submitted an evaluation of the Beneficiary's education and work experience from I I dated March 9, 2017. Although the evaluation referenced the Beneficiary's more than 11 years of ex erience in nursing and midwifery. I D
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The Petitioner also submits several certificates showing the Beneficiary's completion of training courses, but the certificates do not confirm the Beneficia 's pri employment. It also submits the ?r Beneficiary's resume, which states that she has worked at Hospital in I !Florida, since October 2008; and that she worked at I I Hospital from March 19, 2007J through lune 12, 2008; a� !Medical Centre from March 1, 2006, to February 28, 2007; and a ..______,Medical College from August 1, 2005, to February 3, 2006. The Beneficiary's resume is not independent, objective evidence of the Beneficiary's prior emplo ent. Further, the dates listed on the resume for her employment withI !Hospital and I tedical College do not match the dates listed on Ithe laborI certification. The record does not contain correspondence from I I Hospital� or The record contains inconsistencies regarding the Beneficiary's prior experience, and the record does not contain independent, objective evidence establishing the Beneficiary's 60 months of progressive experience. Thus,thePetitionerhasnotestablishedthattheBeneficiarymettherequirementsofthe labor certification as of the priority date.
C. PrevailingWageDetermination
The Director also determined that the PWD submitted with the petition states different requirements for the offered job than those listed on the labor certification, 8 and that the requirements listed on the PWD do not meet the requirements for the second-preference advanced degree classification.9 The record contains DOL ETA Form 9141, Application for Prevailing Wage Determination, for the positionofchargenursead !Hospital. ThePWDliststheminimumrequirementsfortheposition as a bachelor's degree in nursing and six months of experience in professional acute nursing. However, the labor certification requires a master's degree in nursing or a bachelor's degree and five years ofexperience. Thus, the Petitioner has not submitted a proper PWD for the offered employment. Further, the Petitioner requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification, but the PWD does not require an advanced degree. See 8 C.F.R. § 204.5(k)(2).
On appeal, the Petitioner states that the discrepancy between the labor certification and the PWD is not a substantive one. We disagree. The discrepancy is four years and six months of experience, 8 To meet Schedule A eligibility, a petitioner must submit a valid PWD obtained in accordance with 20 C.F.R. §§ 656.40 and 656.41. See 20 C.F.R. § 656.15(b)(l).
which is substantive. The DOL issued a Level III wage instead of a Level IV wage for the position, and the experience required for the offered position was a factor in the DOL's determination of the prevailing wage. 1° Further, as detailed above, the discrepancy is also material to eligibility for the classification requested.
The Petitioner also states on appeal that the requirements listed on the PWD meet the requirements for aScheduleAoccupationregardlessoftheexperiencerequired. Eveniftherequirementslistedonthe PWD meet the requirements for a Schedule A professional nurse, the PWD is not valid for this petition because it does not list the actual minimum requirements for the offered job as stated on the accompanying uncertified labor certification.
D. Eligibility for the Classification Sought
Although not addressed by the Director in his decision, the record does not establish that the Beneficiary is eligible for the classification sought. An advanced degree professional petition must establish that the beneficiary is a member of the professions holding an advanced degree. Here, the record does not establish that the Beneficiary possessed at least a U.S. academic or professional degree or a foreign equivalent degree above a baccalaureate, or a U.S. baccalaureate or a foreign equivalent degree followed by at least five years of progressive experience in the specialty. Therefore, the Beneficiary does not qualify for classification as an advanced degree professional under section 203(b)(2) of the Act.
Conclusion
The appeal will be dismissed for the above stated reasons, with each considered an independent and alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361. The Petitioner has not met that burden.
ORDER: The appeal is dismissed.
Cite as Matter ofF-H-, ID# 747162 (AAO May 21, 2019) Employment and Training Administration, Prevailing Wage Determination Policy Guidance, Nov. 2009, https://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf (last visited May 7, 2019).
DOL guidance regarding the issuance ofprevailing wage determinations states: All employer applications for a prevailing wage determination shall initially be considered an entry level or Level I wage. The employer's requirements for experience, education, training, and special skills shall be compared to those generally required for an occupation as described in O*NET and shall be used as indicators that the job opportunity is for an experienced (Level II), qualified (Level III), or fully competent (Level IV) worker and warrants a prevailing wage determination at a higher wage level.