dismissed EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 05, 2023 In Re: 27333393 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a provider of accounting and tax preparation services, seeks to employ the Beneficiary 
as its office administrator. It requests her classification as a professional worker under the third 
preference employment-based immigrant visa category . Immigration and Nationality Act (the Act) 
section 203(b )(3)(A)(ii), 8 U.S.C. § 1153(b )(3)(A)(ii). 
The Director of the Nebraska Service Center denied the petition because it was not accompanied by 
an individual labor certification from the U.S. Department of Labor (DOL), as required. The Petitioner 
subsequently filed a motion to reopen . The Director, after considering the additional evidence offered 
on motion, denied the petition on the same grounds. The matter is now before us on appeal. 8 C.F.R. 
§ 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
Employment-based immigration generally follows a three-step process . First, an employer obtains an 
approved labor certification (ETA Form 9089) from the DOL. See section 212(a)(5) of the Act, 8 
U.S.C. § 1182(a)(5). By approving the labor certification, the 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)(l)-(11) of the Act. Second, the 
employer files an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS) . 
See section 204 of the Act, 8 U.S .C. § 1154. Third, if USCIS approves the petition, the 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. 
Here, the record reflects that the Form 1-140, Immigrant Petition for Alien Worker, was not properly 
filed as it was not accompanied by a valid labor certification, as required by 8 C.F.R. § 204 .5(a)(2) 
and (1)(3)(i); see also 20 C.F.R. § 656 .17(a)(l) (stating that the Department of Homeland Security will 
not process a labor-certification-based immigrant petitions unless it is supported by an original 
certified ETA 9089 that has been signed by the employer, the beneficiary, and, if applicable, the 
attorney); see generally 6 USCIS Policy Manual E.6(B)(l), https://www.uscis.gov/policy-manual 
(stating that users will reject a petition that is filed without the approved permanent labor 
certification and will deny a petition that was inadvertently accepted without a required, valid 
permanent labor certification). 
A benefit request must be filed with all initial evidence required by the applicable regulations and 
other users instructions and a petitioner must establish eligibility for the benefit request at the time 
of filing and continue to be eligible through adjudication. See 8 C .F .R. § 103.2(b )( 1 ). The Petitioner 
filed the Form r-140 on November 1, 2021, and therefore was required to submit a labor certification 
that was certified by DOL and remained valid on this date. See 8 C.F.R. § 204.5(a)(2) and (1)(3)(i). 
On the Form r-140, at Part 4, the Petitioner indicated that it was filing the petition without an original 
labor certification, and instead requested that users request a duplicate labor certification from the 
DOL. The Director requested and obtained the labor certification from the DOL and denied the 
petition because the labor certification, which was filed on October 28, 2021 (four days prior to the 
filing of this petition) had not been approved and certified by the DOL. 
The Petitioner subsequently filed a motion to reopen with a copy of a letter from DOL denying the 
labor certification and evidence that the Petitioner had submitted a request for reconsideration of that 
denial to DOL in June 2022. The Petitioner maintained that the labor certification was erroneously 
denied and would ultimately be approved. The Director affirmed the denial of the petition, observing 
that the evidence submitted on motion did not establish that the Petitioner had obtained an approved 
labor certification from DOL prior to filing this Form r-140 in November 2021. 
On appeal, the Petitioner requests that we approve the petition because the Beneficiary "is fully 
qualified to obtain the certified Labor Certification required in order to qualify for this benefit." The 
appeal is accompanied by a January 20, 2023 letter from DOL denying the Petitioner's request for 
reconsideration of its initial decision, and a copy of the Petitioner's subsequent appeal to the Board of 
Alien Labor Certification Appeals (BALCA), which remains pending. The Petitioner asserts that DOL 
did not provide proper notice that it was auditing the labor certification prior to denying it and 
expresses its belief that its appeal to BALCA will be successful. 
The Petitioner has not overcome the basis for denial. As discussed above, in order to meet the initial 
evidence requirements for this classification set forth at 8 C.F.R. § 204.5(a)(l) and (1)(3)(i), the 
Petitioner must establish that the labor certification it filed on behalf of the Beneficiary was approved 
and certified by DOL prior to the filing of this petition on November 1, 2021. Here, the labor 
certification was filed with DOL only four days prior to the filing of this petition, remained 
unadjudicated at the time the Form r-140 was filed, was ultimately denied, and has a pending appeal. 
The DOL has exclusive authority over the labor certification process, and we therefore need not 
address the Petitioner's claim that the Beneficiary "is fully qualified to obtain the certified Labor 
Certification." 
Because this immigrant petition was not accompanied by the required valid labor certification, it was 
not properly filed and therefore cannot be approved. Accordingly, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
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