by approval notice dated march 23, 2010, the california service center treated a filipino appeal to the administrative appeal office (aao) filed by this author, as a second motion for reconsideration, and granted the request for extension of h-1b stay from 09/25/2009 until 09/24/2012, per issued form i-94 (departure record). Earlier, on december 1, 2009, the filipino’s employer’s form i-129 (h-1b extension) application was approved by the california service center for the validity period of 11/09/2009 to 09/24/2012.
but the concurrent request of extension of h-1b stay of the filipino network and computer systems administrator was denied by the december 01, 2009 decision of the california service center, on the ground that the request was resubmitted 19 days after his valid status had expired on september 24, 2009.
motion to reconsider and motion to reopen decision of 12/01/2009:
under 8 c. F. R. 214. 1(e)(5) and 214. 2(p)(9), there is no appeal to the denial of an extension of stay request. So, this author, on behalf of the filipino client, filed a motion to reconsider pursuant to 8 c. F. R. 103. 5(a)(1)(i), and a motion to reopen under 8 c. F. R. 103. 5(a)(2) with the california service center. The principal reason for the motion to reopen/motion to reconsider was that the labor condition application (lca), eta 90352, of the employer was certified by the u. S. Department of labor on september 18, 2009, before the expiration of the filipino’s h-1b status on september 24, 2009.
indeed, 8 c. F. R. 214. 2(h)(4)(1)(b)(1) merely requires the petitioner-employer to obtain a certificate from the u. S. Department of labor that it has filed a labor certification application in the occupational specialty in which the inapplicable and alien will be employed. This was done on time by the employer. The delay in resubmitting form i-129 (h-1b extension) on october 8, 2009, was due to the failure of the u. S. Department of labor to send the certified labor condition application to the petitioner’s counsel, and the failure of a law clerk to check and monitor the icertportal, a new organization and system of the u. S. Department of labor.
indeed, the aforesaid delay was beyond the agitate and control of the filipino beneficiary under the causes and circumstances. Moreover, the filipino requesting h-1b extension had not violated his h-1b nonimmigrant status, and is not in removal proceedings.
issues on appeal to aao:
still, the california service center, through its director, christina poulos, dismissed aforesaid motions for reconsideration and to reopen by her decision dated february 03, 2010, even as she conceded that “the final labor condition application was certified on september 18, 2009, before the september 24, 2009, the date the beneficiary’s status expires. . . . ” she also conceded that “the law office of roman p. Mosqueda takes the accountability for the tardiness due to failure of noticing the certified labor condition application until september 25, 2009. “
so, in the filipino’s notice of appeal (form i-290) to the aao and the brief in support of appeal, this author raised the following issues:
1. Since the first filing of the form i-129, with reservation for filing of certified labor condition application, was done on september 17, 2009, before the expiration of the filipino’s h-1b status on september 24, 2009, should the initial filing date be used, and not the last filing of october 13, 2009, which attached the duly certified labor condition application?
2. Should the director of the california service center have accepted the september 17, 2009 filing of the form i-129 (h-1b extension) with reservation of the subsequent filing of the certified labor condition application, which was certified on september 18, 2009?
3. Should the director of the california service center have considered the reservation of the subsequent filing of the certified labor condition application and require the certification by way of a request of evidence?
4. The employer, having actually re-filed electronically on september 14, 2009 the labor condition application (eta 90352) before the expiration of the filipino’s h-1b status on september 24, 2009, should the director of california service center have allowed the september 17, 2009 filing of the form i-129 (h-1b extension)?
5. Should the failure of a law clerk of beneficiary’s counsel to track on icertportal, the certification of the labor condition application on september 18, 2009, until september 25, 2009, not be taken against the employer and the beneficiary as extraordinary causes and circumstances beyond their agitate and control?
6. There being no evidence of displacement of united states workers, should the director of the california service center not have reconsidered her december 01, 2009 decision and granted the filipino’s extension of h-1b status?
conclusion:
the director of the california service center apparently agreed the second time around and granted the h-1b extension of the filipino beneficiary without forwarding his appeal to the aao in washington, d. C.
admission of a shortcoming and persistence paid off?
(the author, roman p. Mosqueda, was h-1b equivalent status with a wall street jewish law firm for 4 years in the early 1980’s. He has practiced immigration law for more than 15 years, among other areas of law, and is a member of aila. This article is not meant as legal advice, but is for information only. If the reader has personal and specific immigration issues, he or she should consult with a informed and competent immigration attorney. )
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