dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-M-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 30, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of information technology (IT) consulting services, seeks to employ the 
Beneficiary as a systems engineer. It requests her classification under the third-preference 
immigrant category as a professional. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(ii) , 8 U.S.C. § 1153(b)(3)(A)(ii). This employment-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 at least a bachelor's degree. 
After initially granting the filing, the Director of the Nebraska Service Center revoked the petition 's 
approval. The Director concluded that the accompanying certification from the U.S. Department of 
Labor (DOL) did not support the requested immigrant classification. 
On appeal, the Petitioner submits additional evidence and asserts that counsel's office inadvertently 
requested the wrong immigrant classification on the Form I-140, Immigrant Petition for Alien 
Worker. The Petitioner argues that, by refusing its request to amend the classification , the Director 
abused her discretion and violated U.S. Citizenship and Immigration Services (USCIS) policy. 
Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional 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 DOL 
certification. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). DOL approval 
signifies that insufficient U.S. workers are able, willing, qualified, and available for an offered position, 
and that employment of a foreign national will not harm wages and working conditions of U.S. workers 
with similar jobs. Id. 
If DOL approves a position, an employer must next submit the labor certification with an immigrant 
visa petition to USCIS. See section 204 of the Act, 8 U.S.C. § 1154. Among other things, USCIS 
determines whether a beneficiary meets the requirements of a DOL-certified position and the 
requested classification . If USCIS grants a petition, a foreign national may finally apply for an 
Matter of S-M-C-, Inc. 
immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 of 
the Act, 8 U.S.C. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may 
revoke a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. 
§ 1155. If supported by the record, the erroneous nature of a petition's approval justifies its 
revocation. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988). 
USCIS may issue a notice of intent to revoke (NOIR) if the unexplained and unrebutted record 
would have warranted a petition's denial. Matter of Es time, 19 I&N Dec. 450, 451 (BIA 1987). The 
Agency may revoke a petition's approval if a petitioner's NOIR response does not overcome the 
stated revocation grounds. Id. at 451-52. 
II. THE VALIDITY OF THE LABOR CERTIFICATION 
Unless accompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a professional must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). The job-offer portion of a labor 
certification for a professional "must demonstrate that the job requires the minimum of a 
baccalaureate degree." Id. When evaluating the minimum job requirements of an offered position, 
USCIS may neither ignore a certification term, nor impose additional requirements. See, e.g., 
Madany v. Smith, 696 F.3d 1008, 1015 (D.C. Cir. 1983) (holding that "DOL bears the authority for 
setting the content of the labor certification") ( emphasis in original). 
Here, the accompanying labor certification states the primary requirements of the offered position of 
systems engineer as a U.S. bachelor's degree or a foreign equivalent degree in computer science, IT, 
or a related field, and three years of experience as a systems analyst, systems engineer, or a related 
occupation. 1 The labor certification also states that, in lieu of a bachelor's degree and three years of 
experience, the Petitioner will accept three years of college or university education, and five years of 
expenence. 
The Director properly issued the NOIR. Contrary to 8 C.F.R. § 204.5(1)(3)(i), the labor certification 
does not demonstrate that the offered position requires at least a bachelor's degree. A U.S. 
bachelor's degree usually reflects four years of college or university study. Matter of Shah, 17 I&N 
Dec. 244, 245 (Reg'l Comm'r 1977). The Petitioner's labor certification, however, indicated the 
company's alternate acceptance of only three years of post-secondary education. Because the labor 
certification stated the position's minimum requirements as less than a U.S. baccalaureate or a 
foreign equivalent degree, the certification does not support the requested professional classification. 
The unexplained and unrebutted record therefore would have warranted the petition's denial. 
1 The petition refers to the offered position as "systems engineer," but the labor certification identifies the job as "senior 
systems analyst." For purposes of this decision, we will assume that the petition and labor certification describe the 
same job opportunity and will use the position title of systems engineer. 
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Matter of S-M-C-, Inc. 
The Petitioner's NOIR response stated that counsel's office inadvertently checked the wrong 
immigrant classification box on the Form 1-140. The Petitioner submitted an amended form 
requesting the Beneficiary's reclassification as a "skilled worker." See section 203(b)(3)(i) of the 
Act ( authorizing immigrant visas to qualified foreign nationals capable of performing work requiring 
at least two years of training or experience). 
A petitioner "may not make material changes to a petition that has already been filed in an effort to 
make an apparently deficient petition conform to [USCIS] requirements." Matter of Izwnmi, 22 I&N 
Dec. 169, 175 (Assoc. Comm'r 1998). Before the issuance of a decision, however, a petitioner may 
request correction of an immigrant classification resulting from a clerical error. USCIS' website 
cautions petitioners that, "[ a ]lthough you may request that we change the visa classification to 
correct a clerical error in Part 2 of the form [1-140], we will make the final determination about 
whether to change the visa classification based on everything in your case." 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 June 18, 2019). The website also advises petitioners to check their 
Form 1-140 receipt notices to ensure that the notices state correct immigrant categories and, if not, to 
call USCIS "immediately." Id. The website therefore indicates that USCIS allows a classification 
change only before the issuance of a decision and only for inadvertent misclassifications. The policy 
does not allow a petitioner to use a single petition to seek approvals in multiple visa categories. 
Here, the record indicates that the Petitioner did not request to change the immigrant classification 
until USCIS issued the NOIR. The Agency's initial approval of the petition constituted a decision 
on the benefit request. See 8 C.F.R. § 103.2(b)(l9) "Not[fication of decision" (requiring USCIS to 
notify a petitioner of an approval or denial). USCIS' website states: "We cannot change the visa 
category if we have already made a decision on your Form 1-140." "Petition Filing and Processing 
Procedures for Form 1-140, Immigrant Petition for Alien Worker," supra. Agency policy therefore 
did not allow the Director to grant the Petitioner's post-approval request to amend the immigrant 
classification. 
Also, the record does not establish the inadvertent, clerical nature of the misclassification. Although 
USCIS sent the Petitioner receipt and approval notices indicating the petition's requested immigrant 
classification, the company did not inform the Agency of the error until the NOIR notified it that the 
labor certification did not appear to support the requested classification. The Petitioner submitted a 
declaration by counsel stating that "[t]his clearly was a typographical error." But the declaration 
neither details how the error occurred, nor explains why counsel did not notice or report the 
misclassification until after the NOIR's issuance. 
On appeal, the Petitioner asserts that USCIS's policy of barring post-decision reclassification 
requests "most certainly refers [ only] to denied cases, as it would be disingenuous to contend [that] a 
case approved[,] but later questioned, could not be amended when the Service made the initial error 
of approval." USCIS' policy is not "disingenuous," however. The "initial error" was the 
Petitioner's request for the wrong immigrant classification on the Form 1-140. USCIS' erroneous 
approval merely delayed the error's discovery. Also, the plain language of the Agency's policy bars 
classification changes after decisions. By listing immigrant classifications requested by 
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Matter of S-M-C-, Inc. 
corresponding pet1t10ns, Form 1-140 receipt notices allow pet1t10ners to detect and report 
misclassifications before USCIS issues decisions. In addition, the Agency's consideration of post­
decision reclassification amendments could encourage fraudulent requests and prove 
administratively burdensome. 
The Petitioner also argues that, instead of initially approving the petition, USCIS should have issued 
a written request for additional evidence (RFE) regarding the Agency's concerns about the requested 
immigrant classification. The record, however, indicates that USCIS did not notice the 
misclassification until after the petition's approval. A director's realization that she erred in granting 
a petition may be good and sufficient cause for the approval's revocation. Matter of Ho, 19 I&N 
Dec. at 590. The Director therefore properly issued the NOIR. 
The Petitioner further argues that USCIS "arbitrarily and capriciously" refused to amend the 
requested classification, disregarding Agency policy and not explaining its decision. But, by 
considering the timing of the Petitioner's request and whether the company demonstrated the 
inadvertent, clerical nature of the misclassification, the Director's decision applied USCIS policy. 
The decision noted that the Petitioner did not request classification change until after receiving the 
NOIR. The decision also indicated that the timing of the change request suggests that the Petitioner 
intended to seek professional classification of the Beneficiary, as indicated on both the petition's 
receipt and approval notices. The decision therefore complied with USCIS policy and sufficiently 
explained the reasons for the denial of the request to change classifications. 
III. CONCLUSION 
The record on appeal does not establish the accompanying labor certification's support of the 
petition's requested immigrant classification. We will therefore affirm the revocation of the 
petition's approval. Contrary to section 291 of the Act, 8 U.S.C. § 1361, the Petitioner did not meet 
its burden of demonstrating eligibility for the requested benefit. 
ORDER: The appeal is dismissed. 
Cite as Matter of S-M-C-, Inc., ID# 5033099 (AAO July 30, 2019) 
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