dismissed EB-3 Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-, LTD 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV.24,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a diesel engines manufacturer, seeks to employ the Beneficiary as a maintenance 
engineer. It requests classification of the Beneficiary as a professional under the third preference 
immigrant classification. See Immigration and Nationality Act (the Act) section 203(h)(3)(A)(ii). 
8 U.S.C. § 1153(b)(3)(A)(ii). This employment-based immigrant classification allows a U.S. 
employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Nebraska Service Center denied the petition. The Director f()und that the labor 
certification does not require at least a bachelor's degree and the Beneficiary does not have a bachelor's 
degree. The Director concluded, therefore. that the labor certification does not suppm1 the requested 
classification of professional and that the Beneficiary is not eligible for that classi ficCltion. 
On appeal the Petitioner submits a brief and copies of documents already in the record. The Petitioner 
asserts that the Director, after detennining that the Beneficiary was ineligible t()r professional 
classification, should have considered the alternative classification of skilled worker. The Petitioner 
claims that the Beneficiary's employment experience meets the minimum requirements of the labor 
certification and qualities him tor classification as a skilled worker. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL).
1 
5-:ee section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification. 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. S'ee section 
1 
The date the labor certification is filed- in this case, December 15. 2015 - is called the ""priority date ... See 8 C.F.R. 
§ 204.5(d). The Petitioner must establish that all eligibility requirements for the petition have been satisfied from the 
priority date onward. 
Matter of D-. Ltd. 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer tiles an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 of the Act. 8 U.S.C. ~ 1154. Third. 
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 ofthe Act. 8 U.S.C. ~ 1255. 
II. ANALYSIS 
At issue here is whether the labor certification supports the requested classification and whether the 
Beneficiary qualities for that classification. In its Form I-140, Immigrant Petition for Alien Worker. 
the Petitioner checked the box at part 2.l.e. which specifies that the petition is being filed t()r "[aJ 
professional (at a minimum, possessing a bachelor's degree or a foreign degree equivalent to a U.S. 
bachelor· s degree).'' 
A. Labor Certification Does Not Support Professional Classification 
In order to be eligible for professional classification. the labor certification must require. at a 
minimum, a U.S. bachelor's degree or a foreign equivalent degree. See 8 C.F.R. ~ 204.5(1)(3 )(ii)(C). 
In this case, the accompanying labor certification stated the follmving with respect to the minimum 
requirements for the proffered job of maintenance engineer: 
4. 
4-A. 
4-B. 
5. 
6. 
6-A. 
7. 
8. 
8-A. 
8-B. 
8-C. 
9. 
10. 
Education: Minimum level 
required: 
If "Other"- Specify the education 
required: 
Major Field of Study: 
Is training required for the job? 
Is experience in the job offered 
required? 
How long? 
Is an alternate field of study 
acceptable? 
Is an alternate combination of 
education and expenence 
acceptable? 
What level of education? 
If "Other"- What alternate level? 
How much experience? 
Is a foreign educational equivalent 
acceptable? 
Is experience in an alternate 
occupation acceptable? 
2 
Other 
Bachelor's Degree or Equivalent 
Mechanical Engineering 
No 
Yes 
96 months 
No 
Yes 
Other 
Bachelor's degree equivalent 
as determined by credentials agency 
8 years 
Yes 
No 
Matter of D-, Ltd. 
In his decision the Director found that the labor certification- in particular parts 1-1.4, 1-1.4-A. 1-1.8. 
1-1.8-A, and 1-1.8-B- required "something less" than a U.S. bachelor's degree or a foreign equivalent. 
and therefore did not support the requested immigrant visa classification of professional. We agree. 
By allowing for a "bachelor's degree equivalent as determined by a credentials agency .. the labor 
certification allows an applicant to qualify for the job with less than a single U.S bachelor's degree 
or foreign equivalent degree. 2 
On appeal, the Petitioner does not dispute this finding. Rather. the Petitioner asserts that after 
determining the petition was not approvable for classification as a professional. the Director should 
have considered the petition under the requirements for skilled worker classification and approved 
the petition for that classification. We do not agree. In part 2 of the Form 1-140 the Petitioner 
checked the box at I.e. stating that the petition was being filed for a professional. The Petitioner did 
not check the box at l.f. stating that the petition was being filed for a skilled worker. A Petitioner 
may not make material changes to a petition already tiled to make it conform to USCIS requirements 
for eligibility and approval. See Matter of' Jzummi, 22 I&N Dec. 169 (Assoc. Comm'r 1998). 
Therefore, the Director was correct in not considering the alternate classification of skilled worker 
now claimed by the Petitioner on appeal. 
The Petitioner cites a federal district court opinion. Grace Korean United Afethodist ( 'hurch r. 
Chertqff; 437 F. Supp. 2d 1174 (D. Or. 2005), in which the court held that because '"option (c)" on 
the Form 1-140 petition at that time allowed a petitioner to request either professional or skilled 
worker classification, the petition could be approved for skilled worker classification if the 
accompanying labor certification had an educational requirement of "B.A. or equivalent" which 
could be met with a combination of education and experience. That case is distinguishable from this 
petition. however, because a new Form l-140 was introduced in .January 20 I 0 which separated the 
classification selections for professionals and skilled workers in Part 2 (Petition Type). While 
"professional'' remained in box I.e., "skilled worker" was moved to box l.f. Since the Petitioner 
selected box I.e. on its Form 1-140 tiled in 2016. it did not allmv for USCIS to consider the petition 
under the skilled worker option as in Grace Korean. 
The Petitioner also contends that USCIS should have sent a request tor evidence (RFE) if it was 
unsure as to which classification category on the Form 1-140 the Petitioner was applying for. 
According to the Petitioner, option (e) on the Form 1-140 (part 2.l.e.) is for a skilled worker or a 
professional, so an RFE should have been issued to provide the Petitioner an opportunity to clarify 
whether it meant to file for a skilled worker or a professional. The Petitioner is incorrect. Option (e) 
on the Form 1-140 (part 2.l.e.) is only for a professional, and that is the only box checked by the 
Petitioner on its Form 1-140. Option (t) on the Form 1-140 (part 2.1.1) is the box to check if the 
2 In Snapnames.com. Inc. v. Michael Chertoff, 2006 WL 3491005 (D. Or. Nov. 30, 2006), the court held that, in 
professional and advanced degree professional cases, where the beneficiary is statutorily required to hold a baccalaureate 
degree, USCIS properly concluded that a single foreign degree or its equivalent is required. See also ,\fammiara 1·. 
USC!S, Civ. Act No. 06-2158 (D.D.C. Mar. 26, 2008)(for professional classification. USCIS regulations require the 
beneficiary to possess a single four-year U.S. bachelor's degree or foreign equivalent degree). 
.
Matter qf D-, Ltd. 
petition is for a skilled worker. The Petitioner did not check that box. Accordingly, USCIS was not 
unsure about which classification category the Petitioner was applying for. and there was no issue to 
clarify with an RFE. 
For the reasons discussed above, the Petitioner has not established that the labor certification 
supports the requested classification. 
B. Beneficiary is Not Eligible for Professional Classification 
A petition requesting professional classification ''must be accompanied by evidence that the 
beneficiary holds a United States baccalaureate degree or a foreign equivalent degree." 8 C.F.R. 
§ 204.5(1 )(3 )(ii )(C). 
In support of the petition the Petitioner submitted a letter from an official of 
stating that the Beneficiary had been employed for 16 years as a maintenance engineer, 
and an evaluation of the Beneficiary's experience by a professor at the who 
concluded that the Beneficiary's 16 years of experience and professional training in mechanical 
engineering was equivalent to a bachelor of science degree in mechanical engineering from an 
accredited college or university in the United States. 
The Director found that the Beneficiary does not have a U.S. bachelor's or foreign equivalent 
degree, citing the evaluation which concluded that the Beneficiary has the equivalent of a bachelor's 
degree based on his work experience, and therefore did not qualify for classification as a 
professional. 
On appeal the Petitioner does not contest the Director's finding that the Beneficiary does not have a 
bachelor's degree, as required by the professional classification. Instead. the Petitioner contends that 
the Director should have considered the Beneficiary's experience as meeting the requirements t()J' 
skilled worker classification, and approved the petition for that classification. As previously 
discussed, however, this petition was filed for a professional. not for a skilled worker. Therefore. we 
have no basis in this proceeding to consider the Beneficiary's eligibility for skilled worker 
classification. 
III. CONCLUSION 
The labor certification does not support the classification of professionaL as requested in the Fonn 1-140 
petition, because the terms of the labor certification pennit an individual to qualify for the job with less 
than a U.S. baccalaureate or foreign equivalent degree. Furthermore. the record indicates that the 
Beneficiary does not have a bachelor's degree or a foreign equivalent degree. as required to be eligible 
for classification as a professional. 
4 
Matter of D-, Ltd. 
ORDER: The appeal is dismissed. 
Cite as Matter o(D-, Ltd, ID# 744969 (AAO Nov. 24. 2017)