remanded EB-3 Case: Social Services

Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF L-S-F-, INC. DATE: DEC. 28, 2018 
. APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a nonprofit organization providing services for people with mental, developmental, 
or physical disabilities, seeks to employ the Beneficiary as a manager. It requests classification of the 
Beneficiary as a skilled worker under the third preference immigrant category. See Immigration. and 
Nationality Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1 l 53(b)(3)(A)(i). This employrµent­
based "EB-3" immigrant classification allows a U.S. employer to sponsor a foreign national for 
lawful permanent resident status to work in a position that requires at least two years of training or 
experience. 
The Director of the Nebraska Service Center denied the petition on the ground that it was not 
supported by a valid labor certification. The Director noted that the labor certification, originally 
filed with another petition that was initially approved, had been invalidated in a subsequent 
revocation proceeding based on a finding that it contained a forged signature in the space where the 
employer was supposed to sign. The Director found that this deficiency was not cured in the instant 
proceeding by the submission of a photocopy of the labor certifi~ation with a new signature in the 
employer declaration section by the Petitioner's current CEO. 
On appeal, the Petitioner disputes the Director's findings. Upon de novo review, we will withdraw 
the Director's decision and remand the case for further consideration and the issuance of a new 
decision. 
I. LAW 
A. Employment-Based Immigration Process 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification from the U.S. Department of Labor (DOL) .. See section 
212(a)(S)(A)(i) of the Act, 8 U .S.C. § 1182(a)(5)(A)(i). By approving the labor certification, 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·ofthe Act, 8 U.S.C. § 1154. Third, 
Matter of l-S-F-. Inc. 
if USCIS approves the petition, the foreign national applies 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. § I 255. 
II. ANALYSIS 
Unless unaccompanied by an application for Schedule A designation or documentation of a 
beneficiary's qualifications for a shortage occupation, a petition for a skilled worker must include a 
valid, individual labor certification. 8 C.F.R. § 204.5(1)(3)(i). A petition -that lacks a required 
individual labor certification is not considered properly filed. See 8 C.F.R. § 204.5(a)(2). At issue 
in this case, is whether the Form 1-140, Immigrant Petition for Alien Worker, was filed with a valid 
labor certification, as required. · 
The Petitioner filed the instant petition, its third 1-140 petition on behalf of the Beneficiary, in 
February 2018 with a copy of a previously invalidated labor certification. 1 Under the ·regulations, if 
a petition that requires a labor certification upon filing is not supported by a valid labor certification, 
it is not considered to be properly filed. See 8 C.F.R. § 204.5(a)(2). Under USClS policy, if the 
Director inadvertently accepts a petition that was filed. without the required valid labor certification, 
the petition will be denied. In this case, the petition was accepted, but then denied because it was not 
filed with a valid labor certification. 
The Secretary of Homeland Security delegated appellate jurisdiction to us over the matters described 
in former 8 C.F.R. § 103. l(t)(3)(E)(iii). See Department of Homeland Security Delegation Number 
· 0150.1, II. U. https://www.hsdl.org/?view&did=234 775 (last visited Dec. I 0, 2_0 I 8). That regulation 
provided us with appellate jurisdiction over employment-based, immigrant petitions filed under 
8 C.F.R. § 204.5, except when the denial of the petition is based upon lack of a certification by the 
Secretary of Labor under section 212(a)(S)(A) of the Act. 8 C.F.R. § 103.l(t)(J)(E)(iii)(B) (2003). 
Because the petition in question was filed with a previously invalidated labor certification, the denial 
of the petition is based on the lack of a valid labor certification. As such, we do not exercise 
appellate jurisdiction over this matter. However, because the Director indicated in the decision that 
appeal rights were available to the Petitioner, we will remand the case for further consideration. If 
warranted, the Director may treat the appeal as a motion. 
lll. CONCLUSION 
Since we lack jurisdiction to consider the filing before us, we will remand this case to the Director 
for further consideration of the petition's procedural posture and a decision on the current filing. 
1 The first 1-140 petition filed by the Petitioner on the Beneficiary's behalf was initially approved, but the Director 
initiated revocation proceedings and in November 2017 invalidated the labor and revoked the approval of the petition. 
The Petitioner did not file a motion or appeal. · 
2 
Matter of L-S-F-, Inc. 
. . 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a nev 
decision consistent with the foregoing analysis. 
Cite as Matter of L-.S-F-. Inc., ID# 200070 l (AAO Dec. 28, 2018)