dismissed EB-3 Case: Agriculture

U.S. Citizenship 
and Immigration 
Services 
In Re: 7965666 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 24, 2020 
The Petitioner seeks to employ the Beneficiary as a grain and livestock farmworker under the third­
preference immigrant classification for skilled workers . See Immigration and Nationality Act (the 
Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i) . 
The Director of the Nebraska Service Center denied the petition and dismissed the Petitioner 's 
following motion to reopen. We dismissed the Petitioner's appeal and the company's two 
subsequent motions to reopen. We concluded that the job requirements of the offered position do 
not support the requested visa classification . We also found that the Petitioner did not demonstrate 
the Beneficiary's possession of the minimum educational, experience , or licensing requirements of 
the position. 
The matter is before us again on the Petitioner's motion to reopen . We will grant the motion in part 
and dismiss it in part. The petition will remain denied. 
I. MOTION CRITERIA 
A motion to reopen must state new facts, supported by documentary evidence . 8 C.F .R. 
§ 103.5(a)(2) . We may grant a motion that meets these requirements and establishes a petition's 
approvability. 
IL THE BENEFICIARY'S EXPERIENCE AND LICENSING 
The Petitioner submits a letter from the Beneficiary's former employer and a copy of the 
Beneficiary's commercial driver 's license (CDL) . These materials demonstrate that the Beneficiary 
meets the minimum experience and licensing requirements of the offered position of grain and 
livestock farmworker. We will therefore grant this portion of the motion . 
III. THE BENEFICIARY'S EDUCATION 
The Petitioner contends that the Beneficiary's employment experience "surpass[ es]" the offered 
position's minimum educational requirement of a U.S. high school diploma or a "foreign educational 
equivalent." The Petitioner, however, misunderstands the nature of the educational requirements 
listed on the certification from the U.S. Department of Labor (DOL) that accompanies the petition. 
On the labor certification application, the Petitioner had to list the minimum job requirements of the 
offered position of grain and livestock farmworker. See 20 C.F .R. § 656. l 7)(i)(l) (stating that "[t ]he 
job requirements, as described, must represent the employer's actual minimum requirements for the 
job opportunity"). To evaluate the Beneficiary's eligibility for the offered position, USCIS must 
determine whether he meets the minimum job requirements listed on the application that DOL 
certified. See Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
If the Beneficiary's experience equates to at least a U.S. high school diploma as the Petitioner 
contends, then the company did not list the position's actual minimum educational requirements on 
the labor certification application. Rather, the Petitioner should have indicated that the position does 
not require education, or the company's acceptance of an alternate combination of education and 
experience. Asked in part H.4 of the application for the minimum level of education required, the 
Petitioner could have checked "None" or "Other." Instead, the company marked "High School," 
indicating that the position requires at least a high school diploma. Also, asked in part H.8 whether 
the company would accept an alternate combination of education and experience, the Petitioner 
checked "No." Thus, the labor certification unambiguously indicates that the offered position 
requires a U.S. high school diploma or a "foreign educational equivalent." (emphasis added). The 
Beneficiary must meet those requirements to obtain the requested benefit, and we lack authority to 
change them. See, e.g., Madany v. Smith, 696 F.2d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL 
bears the authority for setting the content of the labor certification") ( emphasis in original). 
Thus, the record does not demonstrate the Beneficiary's possession of the minimum educational 
requirements of the offered position as listed on the accompanying labor certification. We will 
therefore dismiss this portion of the motion. 
IV. THE REQUESTED VISA CLASSIFICATION 
The Petitioner seeks to change the requested visa classification from skilled worker, under section 
203(b)(3)(A)(i) of the Act, to "other worker," under section 203(b)(3)(A)(iii) of the Act. The record 
indicates that the Petitioner initially did not realize that a skilled worker position must require at least 
two years of training or experience. See 203(b)(3)(A)(i) of the Act (stating that skilled workers must 
be "capable . . . of performing skilled labor (requiring at least 2 years training or experience)"). 
U.S. Citizenship and Immigration Services (USCIS) policy, however, bars a change of visa 
classification after the Agency decides a Form 1-140 petition. See USCIS, Petition Filing and 
Processing Procedures for Form 1-140, Immigrant Petition for Alien Worker, "Requesting or 
Changing Visa Categories," https://www.uscis.gov/forms/petition-filing-and-processing-procedures­
form-i-140-immigrant-petition-alien-worker (last visited Mar. 4, 2020) (stating that "[w]e cannot 
change the visa category if we have already made a decision on your Form 1-140"). Also, USCIS 
changes a visa category only "to correct a clerical error" on a Form 1-140. Id. Here, the record 
indicates that the Petitioner misunderstood the requirements of its selected visa classification, not 
that it inadvertently chose an unintended category on the form. 
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For the foregoing reasons, we deny the Petitioner's request to change the petition's visa 
classification. Because the job requirements of the offered position do not support the requested 
classification, we will also dismiss this portion of the motion. 
V. CONCLUSION 
The motion's new evidence demonstrates the Beneficiary's experience and licensing qualifications 
for the offered position. The petition, however, will remain denied. The record does not establish 
the Beneficiary's possession of the minimum education required for the job, and the position's job 
requirements do not support the requested visa classification. 
ORDER: The motion to reopen is granted in part and dismissed in part. 
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