dismissed EB-3 Case: Special Education

MATTER OF P-C-c=J 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 16, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, al I seeks to employ the Beneficiary as a special education teacher. 
It requests classification of the Beneficiary as a professional under the third preference immigrant 
category. Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. 
§ l l 53(b )(3)(A)(ii). This employment-based "EB -3" immigrant classification allows a U.S . 
employer to sponsor a professional with a baccalaureate degree for lawful permanent resident status. 
The Director of the Texas Service Center denied the petition on the ground that it was not supported 
by a valid labor certification. The Petitioner filed an appeal, which we rejected on the ground that 
we lack appellate jurisdiction of appeals involving petitions that were denied for lack of a valid labor 
certification. 
The matter is now before us on a motion to reconsider. For the reasons discussed hereinafter, we 
will deny the motion . 
I. LAW AND ANALYSIS 
The motion to reconsider 1 in this case is based on our previous rejection of the Beneficiary's appeal 
for lack of jurisdiction. However, the Petitioner did not cite to any regulation that allows for a 
motion to be filed on a rejected appeal. When we reject an appeal, there is no merits-based decision 
for us to review and therefore no basis for a motion to reconsider. As such, the motion must be 
denied as improperly filed. 
Even if we were to accept the motion, the motion could not be granted as it does not establish that 
the appeal was rejected in error. An Immigrant Petition for Alien Worker, Form 1-140, must 
generally be supported by a valid labor certification issued by the Department of Labor (DOL) 2 to be 
properly filed with USCIS. 8 C.F.R. § 204.5(a)(2). In this case the Petitioner obtained a labor 
certification from the DOL on April 25, 2016, with a validity period from then until October 22, 
1 A motion to reconsider must demonstrate that our decision was based on an incorrect application of law or policy and 
that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision . 8 C.F.R. 
§ 103.5(a)(3). 
2 There are several exceptions to this requirement which do not apply in this case. 
Matter of P-C□ 
2016. Five days before the end of this validity period the Petitioner submitted the labor certification 
along with an outdated version of a Form I-140 petition to users. A rejection notice was sent to the 
Petitioner, along with the outdated petition and the labor certification, advising the Petitioner to 
resubmit the petition on the current version of the Form I-140. The Petitioner proceeded to submit 
two more petitions to users on the current version of the Form I-140, accompanied by the labor 
certification. These petitions were also rejected by users and returned to the Petitioner, along with 
the labor certification, on the grounds that the petitions lacked a valid labor certification due to the 
expiration of its validity period. The Petitioner filed yet another Form I-140 petition without the 
invalid labor certification and received a formal decision from users denying the petition for lack 
of a valid labor certification to support it. 
In rejecting the appeal, we stated that we did not exercise jurisdiction over the matter because it was 
denied for lack of a labor certification. In its motion to reconsider the Petitioner asserts that because 
the six-month validity period for labor certifications was not adopted until July 16, 2007, under 
20 e.F.R. § 656.30(b ), the earlier regulation cited in our decision could not have been intended to 
exclude appellate jurisdiction over petitions based on expired labor certifications because there were 
no expiration dates for labor certifications at that time. The Petitioner suggests that the only logical 
interpretation of 8 e.F.R. § 103.l(f)(3)(iii)(B) is that it was meant to preclude appellate jurisdiction 
of petitions denied because they were not supported by any labor certification. The Petitioner claims 
that since the initial petition "filed" with users on the outdated Form I-140 was accompanied by a 
valid labor certification (the six-month validity period had not yet expired), the AAO is not barred 
by 8 C.F .R. § 103 .1 ( f)(3 )(iii)(B) from reviewing the Director's denial of its latest petition that was 
supported by the once valid, but now expired, labor certification. Drawing from the language of 
20 e.F.R. § 656.30(b)(l), which states that a labor certification approved after July 16, 2007 
"expires if not filed in support of a Form I-140 Petition ... within 180 days" of the DOL's approval, 
the Petitioner contends that its labor certification never expired because it was "filed" with users in 
support of the outdated Form I-140 petition during the labor certification's validity period in October 
2016. 
The Petitioner's argument is faulty because the labor certification in this case was not "filed" with 
users within 180 days of its approval by the DOL. Though the labor certification was submitted to 
users with the Petitioner's Form I-140 petition within the 180-day window, it was rejected and 
returned to the Petitioner along with the outdated Form I-140. The regulations at 8 e.F.R. § 103.2 
(Submission and adjudication of benefit requests) contain a provision entitled "Rejected benefit 
requests" which reads as follows: "A benefit request which is rejected will not retain a filing date. 
There is no appeal from such rejection." 8 e.F.R. § 103.2(a)(7)(iii). Because the Petitioner's first 
Form I-140 was rejected by users and returned to the Petitioner along with the labor certification, it 
did not retain a filing date. Therefore, neither the petition on the outdated Form I-140 nor the labor 
certification was "filed" with users during the labor certification's validity period. 
Accordingly, the petition currently before us on motion is not supported by a valid labor 
certification. The Petitioner has not shown that our previous decision rejecting the appeal of the 
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Matter of P-cO 
Director's denial of the petition was based on an incorrect application of law, or regulation, or 
policy. 
II. CONCLUSION 
The regulations do not allow for a motion to be filed on a rejected appeal. Thus, the motion before 
us was improperly filed and must be denied. 
ORDER: The motion to reconsider is denied. 
Cite as Matter of P-CO ID# 5437743 (AAO Sept. 16, 2019) 
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