dismissed EB-3 Case: Specialty Painting

U.S. Citizenship 
and Immigration 
Services 
In Re : 20684612 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Skilled Worker 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JUL. 18, 2022 
The Petitioner seeks to employ the Beneficiary as a specialty painter under the third-preference, 
immigrant visa category for skilled workers . See Immigration and Nationality Act (the Act) section 
203(b )(3)(A)(i), 8 U.S .C. § 1153(b )(3)(A)(i). This category allows a U .S. business to sponsor a 
foreign national with at least two years of training or experience for lawful permanent resident status. 
The Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers, 
concluding that the position's job requirements do not support the requested immigrant visa 
classification since the offered position requires less than two years of training or experience . The 
Director also concluded that the Petitioner could not amend the petition to change the requested 
classification from skilled worker to any other worker. On appeal the Petitioner asserts that it made a 
clerical error in its classification request on the petition and should be allowed to change the request. 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 I&N 
Dec . 369,375 (AAO 2010) . We review the questions in this matter de nova. Matter of Christo 's Inc., 
26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we dismiss the appeal. 
I. LAW 
Immigration as a skilled worker generally follows a three-step process . First, a prospective employer 
must apply to the U.S. Department of Labor (DOL) for certification that: (1) there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) employment of a noncitizen 
in the position would 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. § l 182(a)(5) . Second, an employer must submit an approved 
DOL ETA Form 9089, Application for Permanent Employment Certification (labor certification) 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 determines whether a noncitizen beneficiary 
meets the requirements of a DOL-certified position and a requested immigrant visa category. 8 C.F.R. 
§ 204.5(1). Finally, ifUSCIS approves a petition, a noncitizen beneficiary may 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. 
II. ANALYSIS 
The Petitioner filed the Form 1-140 on July 18, 2019, and it checked the box at Part 2.1.f indicating 
that the petition was being filed for a skilled worker. The petition was accompanied by an ETA Form 
9089, Application for Permanent Employment Certification (labor certification), with a priority date 
of May 15, 2019. Section Hof the labor certification specifies the education, training, and experience 
required to qualify for the job offered as follows: 
4. Education: minimum level required: None 
5. Is training required in the job opportunity? No 
6. Is experience in the job offered required for the job? Yes 
6-A. If Yes, number of months experience required: 12 
8. Is there an alternate combination of education and experience that is acceptable? No 
14. Specific skill or other requirements - Must have at least one year experience in 
specialty painting ( customized faux and other specialty finishes, color matching). 
Thus, the labor certification states that the offered position has no minimum education requirement, 
and that 12 months of work experience in the job offered or in specialty painting are required. As 
indicated, the minimum requirements for the position are less than two years of training or experience 
as required for the skilled worker classification. A position for a skilled worker must require at least 
two years of training or experience. See Section 203(b)(3)(A)(i) of the Act. 
In June 2021, the Director issued a notice of intent to deny (NOID) alleging, in part, that the position 
is ineligible for classification as a skilled worker because its minimum requirements are less than two 
years of training of experience. In response to the NOID, the Petitioner stated that the skilled worker 
category was "selected inadvertently and in error," and the any other worker category should have 
been selected instead. The Petitioner also submitted an amended Form 1-140 in which the Petitioner 
checked the box at Part 2.1.g indicating that the petition was filed for any other worker (requiring less 
than two years of training of experience.) Ultimately, the Director found the position ineligible for 
classification as a skilled worker since the position requires less than two years of training or 
experience, and the Petitioner could not amend the petition to change the requested classification. The 
Director cited to Matter of Izummi, concluding that 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. 169, 176 (Assoc. Comm'r 1998). 
The Petitioner appeals the Director's decision and asserts that it made a clerical error in its 
classification request on the petition and should be allowed to change the requested eligibility category 
from skilled worker to any other worker. According to the Petitioner, the present case is clearly 
distinguishable from Matter of Izummi because the Petitioner did not seek to establish eligibility based 
on a new set of facts after filing its 1-140, but instead merely sought to rectify an error in the initial 
1-140 filing. The Petitioner also contends that the Beneficiary met the minimum educational 
requirements of the labor certification. 
Specifically, in this case, the evidence in the record does not establish that the Petitioner intended to 
request the skilled worker classification at the time the petition was filed and simply made a clerical 
error. The Form 1-140 indicated skilled worker, and the letter of support submitted with the petition 
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indicated that the Petitioner was filing for the EB-3 , skilled workers category . Not until responding 
to the Director's NOID did the Petitioner first request that it be allowed to change the classification 
request from skilled worker to any other worker. 
Further, we are not able to change the requested preference classification on appeal because the 
Director has already issued a decision on the petition. At the USCIS website under petition filing and 
processing procedures for Form I-140, the agency provides instructions on how to correct the visa 
category selected in Part 2 of Form I-140 . The guidance states that the Petitioner must review for 
accuracy the receipt notice that indicates the visa category requested on Part 2 of Form I-140. If the 
category is not correct, the Petitioner must immediately call the USCIS contact center to request a 
change in the visa classification before making a decision on the form. The instructions also indicate 
that if the Petitioner requests a change in visa classification to correct a clerical error, USCIS will 
make the final determination about whether to change the visa classification based on everything in 
the case. Finally , the instructions states that a visa category cannot be changed if a decision has been 
made on the I-140. See USCIS website , Petition Filing and Processing Procedures for Form I-140, 
Immigrant Petition for Alien Workers , https ://www.uscis .gov/fonns /all-forms /petition-filing-and­
processing-procedures- for-form-i-140-immigrant-petition- for-alien-workers#Requesting. There is no 
indication the Petitioner followed any of these steps. In any event, we are not able to change the 
requested preference classification on appeal because the Director has already issued a decision on the 
petition . 
III. CONCLUSION 
The position's job requirements do not support the requested immigrant visa classification and a 
change to the requested preference classification cannot be made on appeal. We will therefore dismiss 
the appeal. 
ORDER: The appeal is dismissed. 
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