remanded EB-3 Case: Pharmaceuticals

U.S. Citizenship 
and Immigration 
Services 
In Re : 21104821 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 22, 2023 
The Petitioner, a pharmaceutical business, seeks to employ the Beneficiary as a project manager -
controlled substance development and production. It requests his 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 Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's ability to pay the proffered wage. 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 of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa's , Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015) . Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
Employment-based immigration generally follows a three-step process. First, an employer obtains an 
approved labor certification (ETA Form 9089) from the U.S. Department of Labor (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)(I)-(II) 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, ifUSCIS 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, although the Director accepted the Petitioner's Form 1-140, Immigrant Petition for Alien 
Worker , for processing and adjudicated it on its merits, the record reflects that the petition was not 
properly filed as it was not accompanied by a valid labor certification, as required by 8 C.F.R . 
§ 204 .(a)(2) and (1)(3)(i). See also 20 C.F.R . § 656 .l 7(a)(l) (stating that the Department ofHomeland 
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). 
The Petitioner stated on the Form I-140 at Part 5 that the Labor Certification DOL Case Number 
associated with this petition is I I The original labor certification in the record of 
proceeding consists of: 
• A DOL letter dated August 3, 2015, indicating that the Form ETA 9089 with case 
number ____ had been certified. The letter includes the Beneficiary's name 
and the job title for the offered position. 
• Pages 1-6 and pages 11-13 of the Form ETA 9089 with case numberl 
indicating the labor certification's validity from August 3, 2015 to January 30, 2016. 
• Pages 7-10 of a different Form ETA 9089, with case number 
indicating the labor certification's validity from July 27, 2015 to January 23, 2016. 
As a result of the Petitioner's submission of pages from two different labor certifications, the record 
does not contain the original, complete labor certification associated with this immigrant petition. 1 
Further, the partial labor certification the Petitioner provided for ETA case number 
does not contain a valid Part L., Alien Declaration, signed and dated by the Beneficiary of this 
petition, 2 a valid Part M., Declaration of Preparer, or a valid Part N., Employer Declaration. These 
sections of the labor certification require the employer, beneficiary and attorney to make signed 
declarations and attestations under penalty of perjury, and such signatures are critical to the validity 
of the labor certification. See 20 C.F.R. § 656.17(a)(l). The signed declarations submitted (on pages 
9 and 10 of the ETA 9089 with case number I relate to a different labor certification 
filed on behalf of a different beneficiary for a different job offer within the petitioning company. 
Because this immigrant petition was not accompanied by a valid labor certification, it was not properly 
filed. The Director erred by accepting the petition for processing and adjudicating it on its merits. See 
8 C.F.R. § 204.5(a)(2) and (1)(3)(i), 20 C.F.R. § 656.17(a)(l); see generally 6 USCIS Policy Manual 
E.6(B)(l), https://www.uscis.gov/policy-manual (stating that USCIS 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). 
Although the Petitioner has submitted an appellate brief and evidence addressing its ability to pay the 
proffered wage, we will not adjudicate the merits of the appeal in the absence of a properly filed 
petition. Rather, we will withdraw the Director's decision and remand the matter to the Director for 
further action and entry of a new decision. 
1 The Petitioner submitted copies of these documents in support of this petition. See generally 6 USCIS Policy Manual 
E.6(B)(2), https://www.uscis.gov/policy-manual (permitting the submission of a copy of an expired labor certification in 
certain circumstances). The original labor certification was submitted with a prior immigrant petition the Petitioner filed 
on behalfofthe Beneficiary in November 2015, seeking to classify him as a member of the professions holding an advanced 
degree under section 203(b )(2) of the Act. USCIS approved that petition on March 23, 2016 I despite 
the lack of a complete and valid labor certification. 
2 While Part L has been signed, it was not signed by the Beneficiary of this petition. 
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ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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