Date of Decision: May 1, 2015
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Nursing
Petitioner Information
Profession: Nurse Supervisor
Field: Nursing
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Evidentiary Criteria Analysis
Criteria Met:
- Educational Requirement: The beneficiary holds a Bachelor of Science degree in Nursing from a university in the Philippines, which is equivalent to a U.S. bachelor’s degree.
Criteria Not Met:
- Experience Requirement: The beneficiary did not meet the requirement of 60 months of experience in the job offered as a nurse supervisor. Letters from previous employers did not substantiate the required supervisory experience.
Key Points from the Decision
Proposed Endeavor:
The petitioner aimed to employ the beneficiary as a nurse supervisor, a role that entails supervising RNs, LPNs, and CNAs, setting up work schedules, ensuring proper maintenance of nursing records, and managing nursing services activities.
Substantial Merit and National Importance:
The AAO determined that while the position of a nurse supervisor is essential, it does not meet the criteria for a Schedule A occupation, which typically includes professional nurses directly involved in patient care. The role described focuses on administrative duties rather than direct patient care, thus not fulfilling the requirements set by the Department of Labor for a Schedule A classification.
Supporting Evidence:
The petitioner provided various letters of employment, tax returns, and the labor certification. However, the provided documentation failed to demonstrate that the beneficiary had the requisite supervisory experience or that the position qualifies as a Schedule A occupation.
Inconsistencies in Proposed Endeavor:
The AAO noted inconsistencies between the job requirements listed on the labor certification and the actual job duties described for the nurse supervisor position. Specifically, the labor certification required five years of experience as a nurse supervisor, but the job duties listed did not align with those of a professional nurse involved in patient care.
Supporting Documentation
Letters of Intent: Not Applicable
Business Plan: Not Applicable
Advisory Letter: Not Applicable
Other Supporting Documentation:
- Employment Letters: Letters provided were insufficient to establish the required supervisory experience.
- Federal Tax Returns: The petitioner failed to provide complete tax returns for 2013 and 2014 to demonstrate the ability to pay the proffered wage.
Conclusion
Final Determination: The appeal is dismissed. The AAO affirmed the director’s decision to deny the petition due to the beneficiary not meeting the educational and experience requirements, the position not qualifying as a Schedule A occupation, and the petitioner being listed as a debarred entity.
Reasoning: The petitioner did not establish that the beneficiary possesses the required 60 months of experience as a nurse supervisor. Additionally, the job duties described do not align with those of a Schedule A occupation. Furthermore, the petitioner did not provide sufficient evidence of its ability to pay the proffered wage.
