remanded EB-3 Case: Retail Management

identifyingdata deletedto
preventclearlyunwarranted
invasionof personalprivacy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
SRC 06 800 09185
Pl1l3LICCOPY'.. -
Office: TEXAS SERVICE CENTER Date: AUG I 4 2007
INRE:
PETITION:
Petitioner:
Beneficiary:
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. § 1153(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.
~?~Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
J
Page 2
DISCUSSION: The Director, Texas 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 a convenience store. It seeks to employ the beneficiary permanently in the United States as a
retail store manager. 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 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 this decision. Further
elaborationof the proceduralhistory will be made only as necessary.
As set forth in the director's denial, the single issue in this 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. § l153(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 certification or evidence that alien qualifies 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. § 204.5(g)(1) states in pertinent part:
Initial evidence. (1) 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.
(Bold emphasis added.)
The regulation at 8 C.F.R. § l03.2(b)(4) states:
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Submitting copies of documents. Application and petition fonns must be submitted in the
original. Fonns and documents issued to support an application or petition, such as labor
certifications, Fonn IAP-66, medical examinations, affidavits, fonnal 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 (DRS) pursuant to the authorityvested in him through the Homeland Security Act of 2002, Pub. L. 107­
296. See DHS Delegation Number 0150.1 (effective March 1,2003); see also 8 C.F.R. § 2.1(2003). The AAO
exercises appellatejurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii)(as in effect on February
28,2003). See DHS DelegationNumber 0150.l(U) supra; 8 C.F.R. § 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. § 103.1(f)(3)(iii)(B)(2003 ed.). However, in this case,
there is a labor certificationin the record of proceeding,but it is a copy and an original is required.
The regulation at 20 C.F.R. § 656.30(e) states:
Duplicate labor certifications.
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 attorney/agent. 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
DRS tracking number.
In the instant case, the record contains infonnation from counsel explaining that the original labor
certification was submitted with a prior petition (SRC 03 104 53194) for the same beneficiary. Counsel
specifically stated that the original labor certification was in the control of CIS and not his client.
Since the evidence in the record suggests that the petitioner did have an approved ETA 750 for the
beneficiary, purported to have been submitted in support of a prior petition, and since there is no evidence in
the record that the director attempted to obtain a duplicate labor certification from the Department of Labor as
permitted by the regulation at 20 C.F.R. § 656.30(e), we must remand the matter for the purpose of obtaining
the original labor certification from the prior petition (if possible) or contacting the Department ofLabor for
a duplicate pursuant to the regulation at 20 C.F.R. § 656.30(e).
After the original or duplicate has been obtained, the director shall render a new decision based on the
evidence of record as it relates to the regulatory requirements for eligibility, including but not limited to the
beneficiary's qualifications for the certified position and the petitioner's ability to pay the proffered wage. As
,
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always, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of
the Act, 8 U.S.c. § 1361.
ORDER: The director's initial decision on the petition 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.