remanded EB-3 Case: Food Service

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-P-H-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 4. 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, seeks to employ the Beneficiary as a food service worker. It requests 
classification of the Beneficiary as an ''other worker'' under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act) section 203(b)(3 )(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This employment-based immigrant classification allows a U.S. employer to 
sponsor for lawful permanent resident status a foreign national who is capable of performing 
unskilled labor that requires less than two years of training or experience and is not of a temporary or 
seasonal nature. 
The Director of the Texas Service Center denied the petition on the ground that it was not supported 
by a valid labor certification. Specifically, the Director found that the worksite location indicated on 
the labor certification (ETA Form 9089, Application for Permanent Employment Certification) was 
not in the same Metropolitan Statistical Area (MSA) as the worksite location indicated on the Form 
1-140, Immigrant Petition for Alien Worker (petition). and that the Petitioner could not amend the 
petition after tiling to change the worksite location to the one indicated on the labor certification. 
On appeal, the Petitioner submits a brief and additional evidence. The Petitioner asserts that the 
worksite location entered on the Form 1-140 petition was a clerical mistake which it should be 
allowed to rectify on appeal to conform to the correct worksite location indicated on the labor 
certification. 
Upon de novo review, we will withdraw the Director's decision and remand the case for further 
consideration and the entry of a new decision. 
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 See section 
1 The date the labor certification is filed 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' 
Wing's Tea House, 161&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). 
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Matter qf M-P-H-, LLC 
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. See section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer files an immigrant visa petition with U.S. 
Citizenship and Immigration Services (USCIS). See section 204 ofthe Act, 8 U.S.C. § 1154. Third, 
if USCIS approves the petition, the foreign national may apply 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. 
A labor certification is valid only for the particular job opportunity and the area of intended employment 
stated on the Form ETA 9089, Application for Permanent Employment Certification (labor 
certification). 20 C.F.R. § 656.30(c)(2). "Area of intended employment" means the area within 
normal commuting distance of the address of intended employment. /d. A petition that is not 
accompanied by a valid labor certification is not considered properly tiled and must be denied. See 
8 C.F.R. § 204.5(a)(2), (k)(3)(i). 
II. ANALYSIS 
The Petitioner's Form 1-140 petition was accompanied by a labor certification with a priority date of 
January 30, 2015. Section H of the labor certification, boxes 1 and 2, stated that the primary 
worksite (where the work is to be performed) is in Texas. 
The petition, however, stated that the address where the Beneficiary would be working is · 
m Texas. 2 
The Director issued a request for evidence (RFE) which asked the Petitioner to show that the labor 
certification was still valid by submitting evidence that the worksite indicated on the petition is in the 
same MSA as the worksite indicated on the labor certification. 
An MSA is "a core area containing a substantial population nucleus, together with adjacent 
communities having a high degree of economic and social integration with that core." U.S. Census 
Bureau, Metropolitan and Micropolitan, https://www.census.gov/programs-surveys/metro­
micro/about.html (last visited September 21, 20 17). If two addresses are within the same MSA, they 
are considered to be within normal commuting distance of each other. See 20 C.F.R. § 656.3. 
However, the fact that two worksites are in different MSAs does not necessarily mean that they are 
not within a normal commuting distance. Specifically, 20 C.F.R. § 656.3 states, in pertinent part: 
Area (~l intended employment means the area within normal commuting distance of 
the place (address) of intended employment. There is no rigid measure of distance 
which constitutes a normal commuting distance or normal commuting area, because 
there may be widely varying factual circumstances among different areas (e.g., 
2 Other documentation in the record indicates that this road is actually called 
2 
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Matter of M-P-H-, LLC 
normal commuting distances might be 20, 30, or 50 miles). If the place of intended 
employment is within a Metropolitan Statistical Area (MSA) or a Primary 
Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is 
deemed to be within normal commuting distance of the place of intended 
employment; however, not all locations within a Consolidated Metropolitan 
Statistical Area (CMSA) will be deemed automatically to be within normal 
commuting distance. The borders of MSAs and PMSAs are not controlling in the 
identification of the normal commuting area; a location outside of an MSA or PMSA 
(or a CMSA) may be within normal commuting distance of a location that is inside 
(e.g., near the border of) the MSA or PMSA (or CMSA). 
In response to the RFE the Petitioner asserted that the address entered on the Form 1-140 petition 
was a "typographical error" and that the correct employment location for the Beneficiary was the 
address entered on the labor certification. The Petitioner submitted a new Form I-140 with the 
intended employment address changed to be the same address on the labor certification. 
In his decision denying the petition, the Director noted that a labor certification is valid only for the 
area of intended employment stated on the labor certification, citing Matter o{ Sunoco Energy 
Development Co. (Matter (~(Sunoco), 17 I&N Dec. 283 (Reg'l Comm'r 1979), and that a petitioner 
could not make material changes to a petition already tiled to make it conform to USClS 
requirements for eligibility and approval, citing Maller qf Izummi. 22 l&N Dec. 169 (Assoc. 
Comm'r 1998). 
Therefore, the Director did not accept the Petitioner's requested change to the petition and stated that 
the Petitioner had not submitted evidence establishing that the Texas, address identified as 
the primary worksite location in the petition is in the same MSA as the Texas, address 
identified as the primary worksite location in the labor certification. 3 The Director concluded that 
the labor certification was not valid for the employment location indicated in the petition. and denied 
the petition for lack of a valid labor certification. 
On appeal the Petitioner reiterates its claim that designating the address in Texas. as the 
Beneficiary's primary worksite location was a clerical error. and that it always intended to employ 
the Beneficiary in The Petition submits a list of its business locations. which includes the 
two addresses in and that were entered on the labor certification and the petition. 
respectively. It also submits a copy of its job offer to the Beneficiary, issued shortly after the denial 
of the petition, identifying the worksite address as in Texas. 
as well as a statement from the Beneficiary, also dated after the denial of the petition, stating that he 
intends to work at the address and not at any other location. 
and are approximately 230 miles apart via 
(last visited September 18, 20 17). 
3 
https://www.google.comi#q+distance+from 
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Matter of M-P-H-, LLC 
However, the petition, which was tiled more than a year earlier, stated that the address where the 
Beneficiary would work was in Texas. The petition was signed by the petitioner's chief 
legal officer below a statement certifying that the petition was "true and correct:· The petition was 
accompanied by an earlier job offer letter from the Petitioner in October 2015, which was signed by 
the chief financial officer in Texas, and did not clearly state that the Beneficiary would 
work at a restaurant in 
The Petitioner contends that in Matter (~llzummi, the petitioner was allowed to amend its petition by 
making certain changes to its partnership agreement. That case involved an immigrant investor 
under section 203(b )(5) of the Act who was allowed to amend some provisions of its partnership 
agreement that was submitted with its Form 1-526 petition. 
As for Matter ~l Sunoco, the Petitioner acknowledges that the petition was denied for lack of a valid 
labor certification because the job location indicated on the labor certification did not match the job 
location indicated on the petition. However, the Petitioner contends that the factual situation in 
Sunoco was different because not only was the beneficiary not employed at the location indicated on 
. the labor certification, he also did not intend to work at that location, as the Regional Commissioner 
stated in finding the labor certification invalid. According to the Petitioner, the matter of intent 
distinguishes this case from Matter ql Sunoco because the Beneficiary always intended to work at 
the location indicated in the labor certification, not the location in that was entered 
in the petition as a "clerical mistake." 
The Director erred in concluding that the labor certification is not valid because the two worksites 
are not in the same MSA. As discussed above, it is a relevant factor, but it is not controlling. See 
20 C.F.R. § 656.3 (a location outside of an MSA may be within normal commuting distance of a 
location that is near the border of the MSA). There is no rigid measure of distance which constitutes 
a normal commuting distance, because the concept of a normal commute may very among different 
areas. 1d. Therefore, this decision is remanded to the Director to apply the correct standard for 
determining a normal commuting distance under 20 C.F.R. § 656.3. 
The second issue is whether the Director erred by not permitting the Petitioner to amend its petition. 
As discussed above, the Director claimed it could not amend the petition under Matter (~llzummi. 
However, Matter ~l lzummi involved a case under appeal after a decision had already been issued. 
In certain circumstances, the Director has the discretion to amend a Form I -140 petition prior to the 
issuance of the decision. For example the USCIS website states that '"[a]lthough you may request 
that we change the visa classification to correct a clerical error in Part 2 of the form, we will make 
the final determination about whether to change the visa classification based on everything in your 
case.'' Petition Filing and Processing Procedures f(Jr Form 1-140. immigrant Petition fhr Alien 
Worker, https://www.uscis.gov/forms/petition-filing-and-processing-procedures-form-i-140-
immigrant-petition-alien-worker (last visited September 25, 20 17). The Petitioner does not cite to 
any law or USCIS policy that requires the Director to make such an amendment such that the 
Director could be found to have committed a reversible error by adjudicating the petition as tiled by 
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Matter of M-P-H-, LLC 
the Petitioner. However, the Director is also not prohibited from correcting certain errors prior to the 
issuance of a decision. 
Therefore, on remand, the Director should consider whether or not the Petitioner has established that 
the Texas, work location identified in the petition is a clerical or typographical error and 
whether he should make the requested change based on everything in the case. 
In summary, we will withdraw the Director's decision and remand the case in order to determine 
whether the two worksites are within normal commuting distance in accordance with the test set 
forth at 20 C.F.R. § 656.3. In addition, the Director will also determine whether the Petitioner's 
requested change is a typographical or clerical error that, based on all of the facts of the case, merits 
amending the petition, or whether it appears that the Petitioner intended for the Beneficiary to work 
at the Texas, location when it filed the petition. 
III. CONCLUSION 
The Director's decision is withdrawn. The matter will be remanded for the Director to determine 
whether the different worksites stated on the labor certification and the petition are within normal 
commuting distance, and, if not, whether the Petitioner's requested change to the petition should be 
granted. 
ORDER: The Director's decision is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new 
decision. 
Cite as Matter o.fM-P-H-, LLC, ID# 595574 (AAO Oct. 4, 2017)