DOS Cable on Reconstruction of EB-3 Petitions
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
UNCLAS STATE 067893
VISAS
E.O. 12958: N/A
TAGS: CVIS
Subject: Reconstruction of EW3 Immigrant Visa Petitions
Ref: (A) 97 State 228477 (B)9 FAM 40.51, N4.1 & N10 (C)9 FAM 42.43, N2.1 (D)20 CFR 656.30(a)
1. Introduction and Summary. This ALDAC serves as guidance to posts on how to reconstruct an employment-based immigrant petition when the Department or INS determines that a case was erroneously suspended under 9 FAM 42.43(a) or an ineligibility finding was made in error and that a valid petition should be processed to conclusion. Posts may append ALDAC to Ref C accordingly until FAM is updated. As mentioned in Ref A, Department has received numerous requests for advisory opinions concerning EW3 cases where posts believed applicant had no intention of engaging in the employment specified in the petition; posts that have canceled petitions on this basis are instructed to review the cases, per Ref A, when/if applicant reapplies for EW3 IV. End introduction and summary.
Review of Cases
2. Department has received several requests for advisory opinions concerning employment-based third preference other worker immigrant visa cases in which posts believe the applicant has no intention of engaging in the specified employment. Many of these are labor substitution cases where an applicant with a pending immigrant visa petition has been substituted on a labor certification for a menial job.
3. Ref A provided guidance on how to adjudicate labor certification cases in instances where the applicant appears to be applying for a menial job for which s/he is overqualified based on education and socio-economic status. It also provided instruction on when conoffs can cancel labor certifications and return petitions in such cases. Specifically, Department clarified for posts that mere belief that an alien will not accept a menial job because of his/her socio-economic status is not sufficient to justify cancellation of part b (the section dealing with the individual alien) of a labor certification. There are some aliens who are willing to accept menial jobs to obtain the immigration benefit. Ref a also set forth the kinds of objective criteria the department believes should exist before posts seek to deny an applicant under INA 212 (a)(5)(A) or seek to cancel part a or part b of the labor certification. Additionally, posts were reminded that an advisory opinion must be requested and answered by the Department before an alien can be denied under 212(a)(5)(A) or before a labor certification can be canceled (see 9 FAM 40.51, NLO(c)).
4. Per Ref A, posts are now instructed to review cases denied under 9 FAM 40.51, N4.1 & NLO when/if the alien applicant reapplies for an EW3 visa. These cases should be reviewed under the standards set out in REF A, and applicants should be assessed according to their present intent to take up the employment specified in the petition.
Reconstruction of Petition
5. Per 9 FAM 42.43, N2.1, posts shall/shall retain a copy of the petition and supporting documents when returning a petition to the INS for revocation. Posts should have a copy of EW3 petitions that were returned based on 9 FAM 40.51, N4.1 & N10 as posts would have had to return an EW3 petition to INS once it had been determined that the applicant did not have a valid labor certification because it had been canceled and/or was ineligible for misrepresenting his/her intent to take up the employment specified in the petition. As such, post should consider these copies to be valid petitions to be readjudicated, when applicants reapply for an EW3 visa based on these petitions. Conoff will now strike the cancellation mark for those labor certifications that had been marked anceled by post. These labor certifications should now be treated as valid and marked in upper right hand corner: "Overcome: Labor Certification Cancellation Reversed" with date, post and conoff signature over post stamp.
6. In cases where posts have not maintained a copy of part or all of the petition (including labor certification), posts are authorized to accept as valid from the applicant or his/her attorney a certified copy of the petition or part of the petition, if there is no reason to believe that such copy is materially different from the original petition. Posts may also obtain documents from the INS Service Center to which they originally returned the petition (with the understanding that INS may not have retained a copy). If post issues a visa based on the reconstructed petition, post should package petition under normal procedures with an additional official notation to INS at the POE indicating that the petition is reconstructed, and that, per this cable, cleared by INS/HQ, INS at POE should accept the petition as valid. The official notification to INS should include the standard language: "Reconstructed Petition Approved" as well as the date, post and conoff signature over post stamp on the first page of the petition.
7. Department will render advisory opinions on cases that are already pending at CA/VO/L/A. If posts have any further inquiries into any of these cases, posts should submit AO request to CA/VO/L/A.
Pickering