dismissed EB-3 Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
In Re : 19818268 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Other Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 1, 2022 
The Petitioner seeks to employ the Beneficiary as an assisted living facility caregiver. It requests 
classification of the Beneficiary as an unskilled worker under the third preference immigrant 
classification. Immigration and Nationality Act (the Act) 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b X3XA)(iii). This employment-based immigrant classification allows a U.S. employer to 
sponsor a noncitizen for lawful permanent resident status to work in a position that requires less than 
two years of training or experience. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary met the minimum requirements for the proffered position as of the 
priority date. On appeal, the Petitioner reasserts that it made a clerical error on the labor certification. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. THE EMPLOYMENT-BASED IMMIGRATION PROCESS 
Immigration as an unskilled worker generally follows a three-step process. To permanently fill a 
position in the United States with a foreign worker, a prospective employer must first obtain 
certification from the U.S. Department of Labor(DOL). See section 212(a)(5)ofthe Act, 8 U.S.C. 
§ 1182(a)(5). DOL approval signifies that insufficient U.S. workers are able, willing, qualified, and 
available for a position. Id. Labor certification also indicates that the employment of a noncitizen will 
not harm wages and working conditions ofU. S. workers with similar jobs. Id. 
If DOL approves a position , an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS) . See section 204 of 
the Act, 8 U.S.C. § 1154. Among other things, USCIS considers whether a beneficiary meets the 
requirements of a certified position and a requested immigrant visa classification. If USCIS approves 
the petition, a noncitizen may finally apply 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. 
The term "other worker" is defined in the regulation at 8 C.F.R. § 204.5(1)(2) as follows: 
Other worker means a qualified [ non citizen] who is cap ab le, at the time of petitioning 
for this classification, of performing unskilled labor (requiring less than two years 
training or experience), not of a temporary or seasonal nature, for which qualified 
workers are not available in the United States. 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(D) states that a petition for an unskilled worker must be 
accompanied by evidence that the non citizen meets any educational, training and experience, and other 
requirements of the labor certification. 
In addition, a beneficiary must meet all of the education, training, experience, and other requirements 
specified on the labor certification as of the petition's priority date. See Matter of Wing 's Tea House, 
16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977). 
II. ANALYSIS 
As noted above, the Director found that the record did not establish that the Beneficiary met the 
minimum requirements for the proffered position. The DOL ETA Form 9089, Application for 
Permanent Employment Certification, submitted with the Form I-140, Immigrant Petition for Alien 
Workers, indicates that the minimum level of education required for the proffered position is a high 
school diploma. In item H.9 of the ETA Form 9089, the Petitioner specified that a foreign educational 
equivalent to a U.S. high school diploma is unacceptable, by checking the "No" response. The priority 
date is November 12, 2019, the datethatDOLreceived the ETA Form 9089. The Petitioner submitted 
a document that appeared to be a foreign language diploma from School in the 
Philippines; however, the Petitioner did not submit an English translation of the document. 
In a request for evidence (RFE), the Director requested the Petitioner to provide an English translation 
of the document in question. The Director also observed that the ETA Form 9089 indicates that a 
foreign educational equivalent is unacceptable. The Director further observed that the name on the 
document in question does not match the name of the Beneficiary. Therefore, the Director requested 
the Petitioner to submit evidence to establish that the Beneficiary meets the education requirements 
indicated on the certified ETA Form 9089 as of the priority date. 
In response to the RFE, the Petitioner submitted an English translation of the diploma, establishing 
that it is a diploma, certifying the completion of high school education at thel I School 
in the Philippines. The Petitioner also submitted a photocopy of a marriage certificate, purporting to 
establish that the Beneficiary changed her name upon marriage; however, the quality of the photocopy 
is poor and substantially all of the text on the document, particularly the names of the individuals 
certified as married, is illegible. The Petitioner further asserted: 
There was an error in answering the question on the ETA Form 9089 page 3 letter H 
number 9. 
The office is amending the ETA Case Form 9089 page 3 of 10 Letter H. Job 
Opportunity Information No. 9 Is a foreign education equivalent acceptable? Yes No 
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The answer is Yes. 
The Petitioner also submitted a photocopy of page 3 of the certified ETA Form 9089 submitted with 
the Form I-140, with the "No" response to item H.9 manually covered with liquid correction fluid and 
the "Yes" response marked with a black ink pen. 
In the decision, the Director noted that USCIS may not ignore a term of a labor certification, citing 
Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401, 406 (Comm'r 1986); Madany v. 
Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); 
Stewart Infi·a-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1 (1st Cir. 1981 ). The Director 
also observed that USCIS must "examine the certified job off er exactly as it is completed by the 
prospective employer," citingRosedale Linen Park Co. v. Smith, 5 9 5 F. Supp. 829, 833 (D .D. C. 1984). 
The Director acknowledged that the Petitioner may have intended to respond "Yes" to item H.9 on the 
ETA Form 9089; however, the Director cited Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm'r 
1998), which provides that a petitioner may not make material changes to a petition that has already 
been filed in an effort to make a deficient petition conform to USCIS requirements. Because the ETA 
Form 9089 certified by DOL indicated that the minimum education requirement for the position is a 
U.S. high school diploma and that a foreign equivalent is unacceptable, and because the record does 
not contain a U.S. high school diploma for the Beneficiary as of the priority date, the Director found 
that the record did not establish that the Beneficiary met the minimum requirements for the position 
as of the priority date and, therefore, the Beneficiary does not qualify for the position. 
On appeal, the Petitioner reasserts that the indication on the ETA Form 9089 ce1iified by DOL that 
the position requires a U.S. diploma and that a foreign equivalent is unacceptable "was an inadvertent 
error." The Petitioner further asserts that DOL "had the initial and originating authority to deny [the 
Beneficiary." 
A beneficiary must meet all of the education, training, experience, and other requirements specified 
on the labor certification as of the petition's priority date. See Matter of Wing's Tea House, 16 I&N 
Dec. at 159. Petitioners must establish eligibility for a requested benefit at the time of filing. See 
8 C.F.R. § 103 .2(b )(1 ). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin 
Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). 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 
lzummi, 22 I&N Dec. at 176. 
Further, the regulation at 20 C.F.R. § 656 .11 (b) prohibits any modification to labor certifications filed 
after July 16, 2007. The labor certification in this case was filed after July 16, 2007, and thus it is 
barred from modification or amendment. As the DOL made clear in the preamble to the ETA, 
Proposed Rule, Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing 
Program Integrity, Permanent Labor Certification Program, 71 Fed. Reg. 7655 (Feb. 13, 2006), 
"[u ]nder proposed 65 6.1 l(b ), DOL clarifies that requests for modification to an application submitted 
under the current regulation will not be accepted. . . . Nothing in the streamlined regulation 
contemplates allowing or permits employers to make changes to applications after filing." Id. at 7659. 
The preamble goes on to highlight that: 
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The online application system is designed to allow the user to proofread and revise 
before submitting the application, and the [DOL] expects and assumes that users will 
do so. Moreover, in signing the application, the employer declares under penalty of 
perjury that he or she has read and reviewed the application and the submitted 
information is true and accurate to the best of his or her knowledge. In the event of an 
inadvertent error or any other need to refile, an employer can withdraw an application, 
make the corrections and file again immediately .... In addition, the entire application 
is a set of attestations and freely allowing changes undermines the integrity of the labor 
certification process because changing one answer on an application could impact 
analysis of the application as a whole. 
Id. Here, the attempt to change the answer from "no" to "yes" for question H.9 materially changes 
the requirements of the offered position and impacts the analysis of the labor ce1iification as a whole. 
See Matter of Wing's Tea House, 16 I&N Dec. at 159; see also 8 C.F.R. § 103.2(b)(l); Matter of 
Michelin Tire Corp., 17 I&N Dec. at249; Matter oflzummi, 22 I&N Dec. at 176. 
Furthermore, the Petitioner's assertion on appeal that DOL "had the initial and originating authority 
to deny [the Beneficiary]" is misplaced. DOLapprovalof an ETA Form 9089 signifies that insufficient 
U.S. workers are able, willing, qualified, and available for a position, and that the employment of a 
noncitizen will not harm wages and working conditions of U.S. workers with similar jobs. See section 
212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL approval of an ETA Form 9089 does not signify that 
a particular beneficiary has met the minimum requirements for the position described therein. USCIS, 
not DOL, determines whether a beneficiary is qualified for a proffered position under a labor 
certification's stated requirements. See, e.g., Matter of Wing's Tea House, 16 I&N Dec. at 160 ( citing 
section 203(a)(6) of the Act, 8 U.S.C. § l 153(a)(6)). Therefore, the factthatDOL certified the ETA 
Form 908 9 submitted in support of the Form I-140 does not indicate that DOL deemed the Beneficiary 
qualified for the proffered position, notwithstanding the requirements stated on the ETA Form 9089, 
nor would DOL have had the authority to make such a determination. 
In summation, the record does not establish that the Beneficiary had a U.S. high school diploma, the 
stated minimum education requirement for the proffered position, as of the priority date; therefore, the 
record does not establish that the Beneficiary was qualified for the position as of the priority date. See 
id.at 159. 
III. CONCLUSION 
The record does not establish that the Beneficiary was qualified for the proffered position as of the 
priority date; therefore, the record does not establish that the Beneficiary is eligible for the position. 
ORDER: The appeal is dismissed. 
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