dismissed EB-3 Case: Dance

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF C-F- INC. 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 20, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR A.LIEN WORKER 
The Petitioner, a ballroom dance studio , 1 seeks to employ the Beneficiary as a _dancer. It initially 
requested classification of the Beneficiary as a skilled worker under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. 
§ 1153(b)(3)(A)(i). This employment-based immigrant classification allows a U.S. employer to 
sponsor a foreign national for lawful permanent resident status to work in a position that requires at 
least two years of training or experience . The Petitioner also requested Schedule A designation for 
the offered position.2 
The Acting Director of the Nebraska Service Center denied the petition, concluding that the petition 
does not qualify for Schedule A, Group I or II designation. 
On appeal, the Petitioner asserts that it "inadvertently" requested the skilled worker classification 
instead of the "extraordinary ability" classification. It states that it would have demonstrated 
eligibility for the extraordinary ability classification but for the error on the petition. 
Upon de novo review, we will dismiss the appeal. 
L EMPLOYMENT-BASED IMMIGRATION 
Employment-based immigrant visas are divided into five preference categories, three of which are 
relevant here. The first preference category includes persons with extraordinary ability in the 
sciences, arts, education, business, or athletics ; outstanding professors and researchers; and 
multinational managers or executives . The second preference category includes professionals 
1 The Petitioner was involuntarily dissolved in the state of Illinois on . 2017. Ill. Sect. of State. 
https://www.iisos.gov/corporatellc/CorporateLlcController (last visited Nov. 13, 2018). 
2 A Schedule A occupation is an occupation codified at 20 C.F.R. § 656.5(a) for which the U.S. Depa11nient 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 current list of Schedule A. Group I occupations includes professional 
nurses and physical therapists. Group II is for persons of exceptional ability in the sciences, arts, or performing arts. See 
20 C.F.R. § 656.5. 
Matter ofC-F- lnc. 
holding advanced degrees and persons of exceptional ability in the sciences, arts, or business. The 
third preference category includes skilled workers, professionals, and unskilled workers. 
Employment-based immigration generally follows a three-step process. First, in many types of 
cases, an employer must first obtain an approved ETA Form 9089, Application for Permanent 
Employment Certification, from the DO L. See section 212( a)( 5)(A )(i) of the Act, 8 U .S.C. § 
l 182(a)(5)(A)(i). By approving the labor certification, the DOL certifies that there are insufficient U.S. 
workers who are able, willing, qualified, and. available for the offered position and that employing a 
foreign national in the position will not adversely affect the wages and working conditions of domestic 
workers similarly employed. See section 2 l 2(a)(5)(A)(i)(l)-(Il) of the Act. Second, the employer files 
an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). See section 
204 of the Act, 8 U.S.C. § 1154. Tpird, 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. 
Here, the Petitioner requested a Schedule A designation for the offered position. Petitions for 
Schedule A occupations do not require a petitioner to test the labor market and obtain a certified ET A 
Fortn 9089 from the DOL prior to filing the petition with USCIS. Instead, the petition is filed directly 
with USCIS with a duplicate uncertified ETA Form 9089. See 8 C.F.R. §§ 204.5(a)(2) and (1)(3)(i); see 
also 20 C.F.R. § 656.15. The petition in this case was filed with a duplicate uncertified ETA Form 
9089, and the labor certification and petition indicate that they are being filed for a Schedule A 
occupation. 
II. CHANGE OF CLASSIFICATION 
In Part 2.1.f of the Form I-140, the Petitioner specified that the petition was being filed for a skilled 
worker requiring at least two years of specialized training or experience. In Part 2.2.b., the Petitioner 
also specified that it was being filed for a Schedule A, Group I or II designation. 
As noted by the Director in her decision, Schedule A, Group I does not apply to dancers. It currently 
applies only to professional nurses and physical therapists. Further, the Director indicated that a 
Schedule A, Group II petition must be filed under the second preference category for a person of 
exceptional ability.3 The Petitioner filed this petition under the third preference category for a skilled 
worker. 
On appeal, the Petitioner asserts that it intended to apply for the extraordinary ability classification but 
checked the wrong box on the petition. It states that it intended to check Part 2.1.a. of the Form 1-140. 
Therefore, on appeal, the Petitioner seeks to change the classification from third preference for 
skilled workers to first preference for persons with extraordinary ability in the sciences, arts, 
3 On the version of the Form 1-140 filed by the Petitioner, Part 2.1.d. represents the second preference category for 
professionals holding advanced degrees and persons of exceptional ability (except those persons seeking a national 
interest waiver). 
2 
Matter ofC-F- Inc. 
education, business, or athletics. See section 203(b)(l)(A) of the Act, 8 U.S.C. § l 153(b)(l)(A). 4 
However, the Petitioner also states on appeal that it established "the minimum of 3 of the 6 criteria 
as required by 8 C.F.R. Section 204.5(k)(3)(i)." The regulation at 8 C.F.R. § 204.5(k)(3) applies to 
the second preference classification for persons of exceptional ability, not the first preference 
classification for persons with extraordinary ability. Thus, the Petitioner makes conflicting 
assertions regarding the classification it is requesting on appeal. 5 
The USCI_S website gives the following instruction$ with regarding to correcting an error: 
When we accept your Form I-140 for processing, we create an electronic record and 
mail a Form 1-797, Receipt Notice, to you and the representative on the Form G-28. 
The receipt notice will indicate the visa category that you requested on Part 2 of the 
Form J-140. Make sure this category is correct. If it is not correct (for example, if 
you or USCJS has made a clerical error), immediately call the USCIS Contact Center 
at 800-375-5283 or 800-767-1833 (TTY) to request that we change the visa 
classification before making a decision on your form. 
Although you may request that we change the visa classification to correct a clerical 
error in Part 2 of the form, we will make the final determination about whether to 
change the visa classification based on everything in your case. If we deny your 
Form I-140 because you are ineligible for the requested visa category, we will also 
deny any related application that you filed with it (for example, Form 1-485, Form 1-
765, Form 1-131). 
We cannot change the visa category if we have already made a decision on your Form 
1-140. 
Petition Filing and Processing Procedures fhr Form /-/40. Immigrant Petition for Alien Worker, 
https :/ /www.uscis.gov/forms/peti tion-filing-and-processing-procedures-form-i-140-immigrant­
petition-alien-worker (last visited Nov. I 3, 2018). Therefore, USCIS guidance permits a petitioner 
to request a change of classification prior to adjudication to correct a clerical error in Part 2 of the 
Form 1-140. 
Here, the Petitioner did not request a change of classification until after a decision had been made by 
the Director. A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 l&N Dec. 169, 176 
(Assoc. Comm'r 1988). The Petitioner may not amend the petition on appeal in order to establish 
4 On the version-of the Form 1-140 filed by the Petitioner, Part 2.1.a. represents the first preference category for persons 
with extraordinary ability. 
5 The Petitioner has not resolved these inconsistencies in the record with independent, objective evidence pointing to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-592 (BIA 1988). 
3 
Matter <?f C-F- Inc. 
eligibility under a different classification. Further, the Petitioner's request to change the 
classification is flawed, as it seemingly requests both the first preference and second preference 
classifications. 
Ill. CONCLUSION 
The Petitioner has not established that the petition qualifies for Schedule A designation under the 
employment-based third preference classification of skilled worker. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-F- Inc., ID# 01522764 (AAO Nov. 20, 2018) 
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