INS Advises on Denial of Immigrant Petition for Alien Worker (I-140

Dear Mr. Bristol:

We refer to the letter from [name omitted] regarding denial of an Immigrant Petition for Alien Worker (I-140). The petition mistakenly requested consideration of the beneficiary as an advanced degree professional rather than a skilled worker. Mr. [name omitted] believes that it has been the practice of the Northern Service Center to allow petitioners to request multiple classifications and then approve the petition for whichever classification the examiner decides is appropriate.

The examiners at the Northern Service Center normally do not approve I-140 petitions for the classification they deem appropriate. Because of priority dates and other considerations, petitioners often want a petition approved under a particular classification. Were we to take it upon ourselves to approve a petition for a different classification, the petitioner would have no recourse through the appeal process.

However, there are a few exceptions to this general rule. Aliens of exceptional ability and professionals with advanced degrees are the same classification. If a petitioner specified either of these, and the examiner determined the alien qualified for the other, the petition would be approved. Also, visas for professional and skilled workers are taken from the same pool of visa numbers; therefore, a petition could be approved for either of these classifications without affecting the beneficiary's priority date.

The return paragraph cited by Mr. [name omitted] was used primarily immediately after the law changed in October of 1991 when petitioners were still submitting the old version of the petition. In Mr. [name omitted] example, both professional and skilled worker were checked. This is one of the cases where the petitioner could check more than one classification and the examiner would approved the petition for whichever classification was appropriate.

When the evidence is insufficient, the petitioner is usually given an opportunity to establish that the beneficiary qualifies for the classification selected. If the petitioner realizes that the beneficiary does not qualify for that classification and wishes to request a different classification, we will accept the change. However, when an individual labor certification is attached which clearly requires less than an advanced degree, the petitioner would not be able to establish eligibility for that classification and the petition will probably be denied.

The Administrative Appeal Unit will not accept a request for a change in classification after a decision has been made. The simple remedy in the case of a clerical error is to have the petitioner file a new petition requesting the proper classification rather than an appeal. The labor certification can be applied to the new petition. Assuming the date of filing of the labor certification is the priority date, the beneficiary will lose nothing. If the petitioner believes the petition should have been approved under the original classification, an appeal is, of course, appropriate.

We appreciate this opportunity to clear up a misconception that many people may have about our procedures and to suggest a solution to a fairly common problem.

Natalie Vedder

(Courtesy of Douglas Bristol)

27MM4G07