dismissed EB-3 Case: Health Care

u.s.·citi,zenship 
and Immigration 
Services 
MATTER OF M- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 8, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
T_he Petitioner, a provider of home health care services, seeks to employ the Beneficiary· as a 
registered nurse. It requests her classification under the third-preference, immigr.ant category as an 
"other worker." Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
_§ l 153(b)(3)(A)(iii). Th_is emP.loyment-based, "EB-3" category allows a U.S. business to sponsor a 
foreign national for lawful permanent resident status to work in a job requiring less than two years of 
training or experience. 
The Acting Director of the Nebraska Service Center denied the petition. The Director found that the 
. minimum requirements of the offered position exceed two years of training or experience. The 
Director therefore concluded that the position neither requires unskilled labor nor qualifies for the 
requested classification. 
On appeal, the Petitioner does not dispute the Director's conclusion that the· offered position is 
ineligible for other worker classification. Rather the Petitioner states that it erron·eously requested 
other worker classification and asks us to approve the petition in the skilled worker category. See. 
section 203(b )(3)(A)(i) of the Act (providing visas to qualified immigrants capable of performing 
work requiring at least two years of training or experience). 
A petitioner must establish eligibility as of a petition's filing and throughout its adjudication. 
8 C.F .R. § I 03 .2(b )(I). A petitjoner "may not make material changes to a petition that has already 
been filed in an effort to make an apparently deficient petition conform to [U.S. Citizenship and 
Immigration Services (USCIS)] requirements." Matier <?f !zummi, 22 I&N Dec. 169, 175 (Assoc. 
Comm'r 1998). Before a decision's issuance, a petitioner may request correction of a visa 
· classification resulting from clerical error. USCIS, "Petition Filing and Processing Procedures for 
Form 1-140, Immigrant Petition for Alien Worker," https://www.uscis.gov/forms/petition-filing-and­
processing-procedures-form-i-140-immigrant-petition-alien-worker (last visited Jan. 31, 2019). 
USCIS advises petitioners to check their Form 1-140 receipt notices to ensure that the notices state 
correct visa categories and, if not, to call the Agency "immediately." Id. 
Here, the Petitioner filed its petition in April' 2017, checking a box in Part 2 of the Form I-140 to 
request the Beneficiary's classification as an other worker. The· Petitioner now states that it 
erroneously- requested the visa category and asks us to approve the petition in the skilled ~orker 
Matter of M-1nc. 
classification. The Petitioner states that, when requesting other worker classification, it 
misinterpreted the category's requirements. Thus, contrary to USCIS policy, the record does not 
establish that the classification request resulted from clei"ical error. Moreover, the record does not 
indicate that, after receiving the petition's receipt notice, the Petitioner notified lJSCIS of the 
erroneous classification within a reasonable period. The Petitioner has not demonstrated that it 
asked to change the visa category until appealing the petition's decision. Because the Petitioner did 
not request the visa classification's correction before the decision's issuance, USCIS policy bars the 
Petitioner's requested change. 
As the Petitioner does not assert that the Director's decision was made in error, the appeal must be 
dismissed. See 8 C.F.R. § 103.3(a)(l)(v) (requiring summary dismissal.of an appeal that does not 
allege an erroneous conclusion of law or statement of fact). 
ORDER: The appeal is summarily dismissed pursuant to 8 ~.F.R. § 103.3(a)(l )(v). 
Cite as Maller of M- Inc., ID# 1797075 (AAO Feb. 8, 2019) 
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