remanded EB-3 Case: Electronics

identifying data deleted to 
prevent clearly unwarranted 
invasion of persona\ privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PETITION: 
 Immigrant Petition for Alien Worker as a Skilled Worker or Professional Pursuant to 
Section 203(b) of the Immigration and Nationality Act, 8 U.S.C. 5 1 1 53(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: the Director, Nebraska Service Center, denied the preference visa petition. The petition is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be remanded for further 
consideration. 
The petitioner is an electronics service business. It seeks to employ the beneficiary permanently in the United 
States as an electronics mechanic. The director determined that the petitioner had not submitted with the 
petition an original labor certification (Form ETA 750, Application for Alien Employment Certification,) 
approved by the Department of Labor as required by statute. The director denied the petition accordingly. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or fact. 
The procedural history in this case is documented by the record and incorporated into ths decision. Further 
elaboration of the procedural history will be made only as necessary. 
As set forth in the director's October 13, 2006 denial, the single issue in ths case is whether or not the 
petitioner submitted with the petition an original labor certification (Form ETA 750, Application for Alien 
Employment Certification,) approved by the Department of Labor as required by statute. 
Section 203(b)(3)(A)(i) of the Act, 8 U.S.C. $ 1153(b)(3)(A)(i), provides for the granting of preference 
classification to qualified immigrants who are capable, at the time of petitioning for classification under this 
paragraph, of performing skilled labor (requiring at least two years training or experience), not of a temporary 
or seasonal nature, for which qualified workers are not available in the United States. 
The regulation at 8 C.F.R. $ 204.5(1)(3) states in pertinent part: 
Initial evidence -(i) Labor certzjication or evidence that alien qualzJies for Labor Market 
Information Pilot Program. Every petition under this classification must be accompanied by 
an individual labor certification from the Department of Labor, by an application for 
Schedule A designation, or by documentation to establish that the alien qualifies for one of 
the shortage occupations in the Department of Labor's Labor Market Information Pilot 
Program. . . 
The regulation at 8 C.F.R. 9 204.5(g)(l) states in pertinent part: 
Initial evidence. (I) General. Specific requirements for initial supporting documents for the 
various employment-based immigrant classifications are set forth in this section. In general, 
ordinary legible photocopies of such documents (except for labor certifications from the 
Department of Labor) will be acceptable for initial filing and approval. However, at the 
discretion of the director, original documents may be required in individual cases. Evidence 
relating to qualifying experience or training shall be in the form of letter(s) from current or 
former employer(s) or trainer(s) and shall include the name, address, and title of the writer, 
and a specific description of the duties performed by the alien or of the training received. If 
such evidence is unavailable, other documentation relating to the alien's experience or 
training will be considered. 
(Emphasis added.) 
The regulation at 8 C.F.R. 5 103.2(b)(4) states: 
Submitting copies of documents. Application and petition forms must be submitted in the 
original. Forms and documents issued to support an application or petition, such as labor 
certifications, Form IAP-66, medical examinations, affidavits, formal consultations, and other 
statements, must be submitted in the original unless previously filed with the [Citizenship and 
Immigration Services (CIS)]. 
The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland 
Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107- 
296. See DHS Delegation Number 0 150.1 (effective March 1, 2003); see also 8 C.F.R. 5 2.1(2003). The AAO 
exercises appellate jurisdiction over the matters described at 8 C.F.R. 5 103.l(f)(3)(iii) (as in effect on February 
28,2003). See DHS Delegation Number 0 150.1(U) supra; 8 C.F.R. 5 103.3(a)(iv). 
Among the appellate authorities are appeals from denials of petitions for immigrant visa classification based on 
employment, "except when the denial of the petition is based upon lack of a certification by the Secretary of 
Labor under section 212(a)(5)(A) of the Act." 8 C.F.R. fj 103.l(f)(3)(iii)(B) (2003 ed.). However, in thts case, 
there is a labor certification in the record of proceeding, but it is a copy and an origlnal is required. 
The regulation at 20 C.F.R. 5 656.30(e) states: 
Duplicate labor certzfications. 
1) The Certifying Officer shall issue a duplicate labor certification at the written request 
of a Consular or Immigration Officer. The Certifying Officer shall issue such 
duplicate labor certifications only to the Consular or Immigration Officer who 
initiated the request. 
2) The Certifying Officer shall issue a duplicate labor certification to a Consular or 
Immigration Officer at the written request of an alien, employer, or an alien's or 
employer's attorneylagent. Such request for a duplicate labor certification must be 
addressed to the Certifying Officer who issued the labor certification; must include 
documentary evidence from a Consular or Immigration Officer that a visa application 
or visa petition, as appropriate, has been filed; and must include a Consular Officer or 
DHS tracking number. 
In the instant case, the record contains information from counsel explaining that the original labor 
certification was submitted with a prior petition (EAC 03 108 5 1073) for the same beneficiary. Counsel also 
states that the prior petition was denied by the director, that a subsequent appeal was dismissed by the AAO, 
and that a motion to reopen is currently pending before the AAO on the dismissal of its appeal. Counsel 
specifically stated that the original labor certification was in the control of CIS and not his client.' 
Since there is no evidence in the record that the director attempted to obtain the labor certification as required 
by 20 C.F.R. $ 656.30(e) and since the evidence in the record indicates that the petitioner did have an 
approved ETA 750 for the beneficiary, the AAO is willing to consider the photocopy of the ETA 750 as proof 
of the approved ETA 750. The director should obtain the original labor certification from the prior petition 
and consolidate it with the current file. Therefore, the issue of the petitioner establishing that it provided an 
original labor certification is resolved. 
An internal CIS database supports this claim and indicates that the file was returned to the Vermont Service 
Center after the AAO issued its decision. 
The director must afford the petitioner reasonable time to provide evidence that it and the beneficiary meet 
the requirements of the labor certification and has otherwise established eligibility for the benefit sought. The 
director shall then render a new decision based on the evidence of record as it relates to the regulatory 
requirements for eligibility. As always, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. 4 1361. 
ORDER: 
 The director's October 13,2006 decision is withdrawn. The petition is remanded to the director 
to be adjudicated on its merits and for entry of a new decision, which if adverse to the petitioner, 
is to be certified to the AAO for review.