California Service Center Reconsiders Denial of Filipino's Request For Extension of H-1B Stay

By approval Notice dated March 23, 2010, thethat "the Law Office of Roman P. Mosqueda
California Service Center treated a Filipino appealtakes the accountability for the tardiness due to
to the Administrative Appeal Office (AAO) filedfailure of noticing the Certified Labor Condition
by this Author, as a second motion forApplication until September 25, 2009."
reconsideration, and granted the request forSo, in the Filipino's Notice of Appeal (Form I-290)
extension of H-1B stay from 09/25/2009 until 09to the AAO and the Brief In Support of Appeal,
24/2012, per issued Form I-94 (Departurethis Author raised the following issues:
Record). Earlier, on December 1, 2009, the Filipino's1. Since the first filing of the Form I-129, with
employer's Form I-129 (H-1B extension) applicationreservation for filing of Certified Labor Condition
was approved by the California Service CenterApplication, was done on September 17, 2009,
for the validity period of 11/09/2009 to 09/24before the expiration of the Filipino's H-1B status
2012.on September 24, 2009, should the initial filing
But the concurrent request of extension of H-1Bdate be used, and not the last filing of October
stay of the Filipino network and computer13, 2009, which attached the duly Certified Labor
systems administrator was denied by theCondition Application?
December 01, 2009 Decision of the California2. Should the Director of the California Service
Service Center, on the ground that the requestCenter have accepted the September 17, 2009
was resubmitted 19 days after his valid statusfiling of the Form I-129 (H-1B extension) with
had expired on September 24, 2009.reservation of the subsequent filing of the
Motion To Reconsider And Motion To ReopenCertified Labor Condition Application, which was
Decision Of 12/01/2009:certified on September 18, 2009?
Under 8 C.F.R. §§ 214.1(e)(5) and 214.2(p)(9),3. Should the Director of the California Service
there is no appeal to the denial of an extension ofCenter have considered the reservation of the
stay request. So, this Author, on behalf of thesubsequent filing of the Certified Labor Condition
Filipino client, filed a Motion to Reconsider pursuantApplication and require the certification by way of
to 8 C.F.R. § 103.5(a)(1)(i), and a Motion toa Request of Evidence?
Reopen under 8 C.F.R. § 103.5(a)(2) with the4. The employer, having actually re-filed
California Service Center. The principal reason forelectronically on September 14, 2009 the Labor
the Motion to Reopen/Motion to Reconsider wasCondition Application (ETA 90352) before the
that the Labor Condition Application (LCA), ETAexpiration of the Filipino's H-1B status on
90352, of the employer was certified by the U.S.September 24, 2009, should the Director of
Department of Labor on September 18, 2009,California Service Center have allowed the
before the expiration of the Filipino's H-1B statusSeptember 17, 2009 filing of the Form I-129 (H-1B
on September 24, 2009.extension)?
Indeed, 8 C.F.R. § 214.2(h)(4)(1)(B)(1) merely5. Should the failure of a law clerk of beneficiary's
requires the petitioner-employer to obtain acounsel to track on ICertPortal, the certification of
certificate from the U.S. Department of Laborthe Labor Condition Application on September 18,
that it has filed a labor certification application in2009, until September 25, 2009, not be taken
the occupational specialty in which the alien will beagainst the employer and the beneficiary as
employed. This was done on time by theextraordinary circumstances beyond their control?
employer. The delay in resubmitting Form I-1296. There being no evidence of displacement of
(H-1B extension) on October 8, 2009, was due toUnited States workers, should the Director of the
the failure of the U.S. Department of Labor toCalifornia Service Center not have reconsidered
send the certified Labor Condition Application toher December 01, 2009 Decision and granted the
the petitioner's counsel, and the failure of a lawFilipino's extension of H-1B status?
clerk to check and monitor the ICertPortal, a newConclusion:
system of the U.S. Department of Labor.The Director of the California Service Center
Indeed, the aforesaid delay was beyond theapparently agreed the second time around and
control of the Filipino beneficiary under thegranted the H-1B extension of the Filipino
circumstances. Moreover, the Filipino requestingbeneficiary without forwarding his appeal to the
H-1B extension had not violated his H-1BAAO in Washington, D.C.
nonimmigrant status, and is not in removalAdmission of a shortcoming and persistence paid
proceedings.off?
Issues On Appeal To AAO:(The Author, Roman P. Mosqueda, was H-1B
Still, the California Service Center, through itsequivalent status with a Wall Street Jewish law
Director, Christina Poulos, dismissed aforesaidfirm for 4 years in the early 1980's. He has
motions for reconsideration and to reopen by herpracticed immigration law for more than 15 years,
Decision dated February 03, 2010, even as sheamong other areas of law, and is a member of
conceded that "the final Labor ConditionAILA. This Article is not meant as legal advice, but
Application was certified on September 18, 2009,is for information only. If the reader has specific
before the September 24, 2009, the date theimmigration issues, he or she should consult with a
beneficiary's status expires...." She also concededcompetent immigration attorney.