remanded EB-3 Case: Engineering

MATTER OF CPM-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 19,2016 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a recycling machinery manufacturer, seeks to permanently employ the Beneficiary in 
the United States as an engineer, f'sort systems." The Petitioner initially requested classification of the 
Beneficiary as a professional under the third preference immigrant classification. 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 immigrant classification allows a U.S. employer to sponsor a professional with a baccalaureate 
degree for lawful permanent resident status. 
The Director, Texas Service Center, (Director) denied the petition on March 4, 2016. The Director 
determined that the Beneficiary did not possess a U.S. bachelor's degree or foreign equivalent 
degree and, therefore, did not satisfy the requirements for classification as a professional. The 
Director also denied the Petitioner's request to change the classification of the petition from 
professional to skilled worker. On May 24, 2016, the Director dismissed the Petitioner's motion to 
reopen and affirmed his previous decision. 
The matter is now before us on appeal. The Petitioner asserts that the Beneficiary possesses the 
equivalent of a bachelor's degree. The Petitioner again requests that the petition be reclassified from 
professional to skilled worker. Upon de novo review, we will remand the case to the Director for 
consideration as a skilled worker. 
I. LAW 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(C) states, in part: 
If the petition is for a professional, the petition must be accompanied by evidence 
that the alien holds a United States baccalaureate degree or a foreign equivalent 
degree and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or university record 
showing the date the baccalaureate degree was awarded and the area of 
concentration of study. 
Section 101(a)(32) of the Act defines the term "profession" to include, but is not limited to, "architects, 
engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, 
Matter ofCPM-, Inc. 
academies, or seminaries." If the offered position is not statutorily defined as a profession, "the 
petitioner must submit evidence showing that the minimum of a baccalaureate degree is required for 
entry into the occupation." 8 C.F.R. § 204.5(1)(3)(ii)(C). 
In addition, the job offer portion of the labor certification underlying a petition for a professional "must 
demonstrate that the job requires the minimum of a baccalaureate degree." 8 C.F.R. § 204.5(1)(3)(i). 
Therefore, a petition for a professional must establish that the occupation of the offered position is listed 
as a profession at section 101(a)(32) of the Act or requires a bachelor's degree as a minimum for entry; 
the beneficiary possesses a U.S. bachelor's degree or foreign equivalent degree from a college or 
university; the job offer portion of the labor certification requires at least a bachelor's degree or foreign 
equivalent degree; and the beneficiary meets all of the requirements of the labor certification. 
Section 203(b )(3)(A)(i) of the Act provides for the granting of preference classification to qualified 
immigrants who are capable of performing skilled labor (requiring at least two years training or 
experience), not of a temporary nature, for which qualified workers are not available in the United 
States. See also 8 C.F.R. § 204.5(1)(2). 
The regulation at 8 C.F.R. § 204.5(1)(3)(ii)(B) states: 
If the petition is for a skilled worker, the petition must be accompanied by evidence 
that the alien meets the educational, training or experience, and any other 
requirements of the [labor certification]. The minimum requirements for this 
classification are at least two years of training or experience. 
The determination of whether a petition may be approved for a skilled worker is based on the 
requirements of the job offered as set forth on the labor certification. See 8 C.F.R. § 204.5(1)(4). The 
labor certification must require at least two years of training and/or experience. Relevant post­
secondary education may be considered as training. See 8 C.F.R. § 204.5(1)(2). 
Accordingly, a petition for a skilled worker must establish that the job offer portion of the labor 
certification requires at least two years of training and/or experience, and the beneficiary meets all of 
the requirements of the offered position set forth on the labor certification. 
II. PROCEDURAL HISTORY AND EVIDENCE OF RECORD 
As required by statute, the petition is accompanied by an approved ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), certified by the DOL. 1 The priority date 
ofthe petition is June 25, 2014? 
1 
See Section 212(a)(5)(D) ofthe Act, 8 U.S.C. § 1182(a)(5)(D); see also 8 C.F.R. § 204.5(a)(2). 
2 
The priority date is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). 
2 
(b)(6)
Matter of CP M-, Inc. 
The required education, training, experience and skills for the offered position are set forth at Part H 
of the labor certification. In the instant case, the labor certification states that the position has the 
following minimum requirements: 
H.4. 
H.4-B. 
H.6. 
H.6-A. 
H.7. 
H.7-A. 
H.8. 
H.8-A. 
H.8-B. 
H.9. 
H.10. 
H.10-A. 
H.10-B. 
H.14. 
Education: minimum level required: Bachelor's degree. 
Major field of study: Mechanical engineering or industrial design or 
equivalent. 
Is experience in the job offered required for the job? Yes. 
If Yes, number of months experience required: 24. 
Is there an alternate field of study that is acceptable? Yes. 
If Yes, specify the major field of study: Industrial design. 
Is there an alternate combination of education and experience that is 
acceptable? Yes. 
If Yes, specify the alternate level of education required: Other. 
If Other is indicated in question 8-A, indicate the alternate level of 
education required: Any suitable combination of education, training or 
experience is acceptable. 
Is a foreign educational equivalent acceptable? Yes. 
Is experience in an alternate occupation acceptable? Yes. 
If Yes, number of months experience in alternate occupation required: 
24. 
Identify the job title of the acceptable alternate occupation: Sales 
engineer/project manager. 
Specific skills or other requirements: None. 
On the labor certification, in Part J.11., J.12., and J.13., the Beneficiary listed his education as 
"other" and listed that he completed two years of college coursework in aerotechnical fabrication in 
1992 at the in Canada. The Petitioner submitted a copy of the 
Beneficiary's academic transcript from which shows that the 
Beneficiary was enrolled in courses there from Fall 1990 through Winter 1992. 
The Petitioner submitted a credentials evaluation and sought to rely on a combination of the 
Beneficiary's education and employment experience to form the equivalent of a bachelor's degree. 
The evaluation, dated February 17, 2009, was issued by for 
concluded that "[b]ased on the entire academic coursework taken by [the 
Beneficiary], combined with his employment experience in the Industrial Engineering field (3 years 
employment = 1 year university level credit), (INS 3:1 rule), has come to the conclusion [the 
Beneficiary] holds the equivalent of an individual with a Bachelor of Science Degree in Industrial 
Design from an accredited college or university in the United States." 
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Matter ofCPM-, Inc. 
III. ANALYSIS 
In the Director's September 8, 2015, request for evidence (RFE), the Director requested additional 
documentation to establish that the Beneficiary satisfied the requirements for classification as a 
professional, as the petition was initially filed. Specifically, the Director requested that the 
Petitioner send evidence that the Beneficiary is a professional holding a bachelor's tlegree in 
mechanical engineering or industrial design. However, the Director also stated that the Petitioner 
should submit a statement if they wished "to change the category from an E32, professional ... to an 
E31, skilled worker." In response to the RFE, the Petitioner submitted a statement requesting that 
the Director accept and "change the Beneficiary's category from E32 (professional) to E31 (skilled 
worker)." 
In his March 4, 2016, decision, the Director rejected the Petitioner's request to change categories, 
noting that "[a] petitioner may not make material changes to a petition." See Matter of Izummi, 22 
I&N Dec. 169, 176 (Assoc. Comm'r 1988). 
USCIS guidance for filing I-140 petitiOns states, "Although you may request a change of 
classification prior to adjudication to correct a clerical error in Part 2 of the form, the determination 
regarding whether to change the visa preference classification will be made by USCIS, based on the 
totality of the record. . . . Requests for a change in visa preference category cannot be granted in 
petitions that have already been adjudicated. "3 As the Petitioner requested to change classification 
to a skilled worker based on the Director's invitation to do so in the RFE and prior to adjudication of 
the petition, we remand for the Director to consider the petition under the skilled worker category. 
IV. CONCLUSION 
In view of the foregoing, the previous decision of the Director will be withdrawn. The petition is 
remanded to the Director. The Director may request any additional evidence considered 
pertinent.4 Similarly, the Petitioner may provide additional evidence within a reasonable period of 
time to be determined by the Director. Upon receipt of all the evidence, the Director will review the 
entire record and enter a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded to the Director for 
further proceedings consistent with the foregoing opinion and for the entry of a new 
decision. 
3 
Petition Filing and Processing Procedures for Form 1-140, Immigrant Petition for Alien Worker, available at 
https://www.uscis.gov/forms/petition-filing-and-processing-procedures-form-i-140-immigrant-petition-alien-worker 
(accessed September 15, 2016). 
4 
It is noted that while the Petitioner submitted evidence of wages paid to the Beneficiary in 2014 and affirmed its ability 
to pay the proffered wage to the Beneficiary, the Petitioner has not submitted copies of its annual reports, federal tax 
returns, or audited financial statements, as is expressly required by the regulation at 8 C.F.R. § 204.5(g)(2). 
4 
Matter of CP M-, Inc. 
Cite as Matter ofCPM-, Inc., ID# 29229 (AAO Sept. 19, 2016) 
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