Receipt No.: LIN0709451877 Decided May 05, 2010 (See footnote 1 below)

Appeal Dismissed:

In this May 2010 decision the AAO demonstrates two of its major failings. Firstly, this case could have been easily dealt with if the AAO had simply remanded the case to the service center for re- adjudication consistent with the petitioner's request to correct a clerical error. Secondly, and of at least equal concern, the AAO cited a case out of context and for a proposition for which it does not stand.

Petitioner sought approval of an I-140 seeking to classify the beneficiary as a skilled worker. The position was housekeeper and the experience requirement stated on the Labor Certification was 3 months. As the skilled worker category requires a minimum of two years experience the petition was clearly not approvable. The petitioner stated in the appeal that it had intended to check the box for unskilled worker, presumably inadvertently checking the incorrect skilled worker box. The AAO apparently treated the appeal as a request to amend the petition. The AAO denied the appeal stating:

There is no provision in statute or regulation that compels United States Citizenship and Immigration Services (USCIS) to readjudicate a petition under a different visa classification in response to a petitioner's request to change it, once the decision has been rendered. 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 Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1988). In this matter, the appropriate remedy would be to file another petition with the proper fee and required documentation.

Failure to Remand:

This decision is consistent with the apparent policy of the AAO to punish petitioners, and more probably their counsel, for minor clerical errors. While the USCIS is not compelled to allow the amendment, neither is it prohibited from doing so. In addition, if the USCIS had issued a notice of intent to deny in this case the error would undoubtedly have been promptly corrected. Rather than do so the USCIS apparently simply denied the case and the AAO rather than remand it for reconsideration also denied. Under no rational concept of administrative efficiency can either the USCIS nor its captive review board the AAO argue that they are doing anything other than harassing the petitioners. Now all parties must start over on a case that could probably been resolved with15 more minutes of administrative review at the service center level.

Misstating Izummi (See footnote 2 below)

In Izummi the petitioner in an immigrant investor case had sought post filing to modify its business agreements to conform to subsequently issued INS guidance and the objection raised in the petition's denial. Holding that the modification to the agreements constituted a new factual landscape the INS Associate commissioner stated:

A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements. (Emphasis added)

In our housekeeper case the only amendment requested was to correct a clerical error. In writing its decision the AAO has sited to a case where the petitioner did not seek to correct a clerical error, but rather sought to create new evidence constituting a material changing the petition.

 1. http://www.uscis.gov/err/B6%20-%20Skilled%20Workers,%20Professionals,%20and%20Other%20Workers/Decisions_Issued_in_2010/May052010_01B6203.pdf

2. http://www.justice.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3360.pdf