Interim Decision #3019 

MATTER OF HARRY BAILEN BUILDERS, INC. 

In Visa Petition Proceedings 

A-36942537 

Decided by Commissioner August 27, 1986 

A labor certification issued by the Department of Labor applies only to a specific 

job opportunity. When the job offer is filled by the arrival of an alien or for any 

other reason, the job offer ceases to exist. Therefore, an alien who abandons residence after being admitted for permanent residence to take up the certified job offer 

cannot use the same labor certification again. 

ON BEHALF OF PETITIONER: Dennis M. Clare, Esquire 

J. Gregory Clare, Esquire 

Fifth Floor, Hart Block Building 

'730 Weat Main Street 

Louisville, Kentucky 40202 

This matter is before the Commissioner on certification pursuant 

to 8 C.F.R. § 103.4 (1986). The decision of the district director, New 

Orleans, will be affirmed. 

The petitioner, Harry Bailen Builders, Inc., is a construction 

company which seeks to accord the beneficiary sixth-preference 

classification as a roofer. The beneficiary was previously admitted 

to the United States as a sixth-preference immigrant on October 

15, 1980, on the basis of a like visa petition filed by the petitioner. 

The beneficiary abandoned his residence in the United States in 

May 1981 and sought to reimmigrate based on the original labor 

certification and visa petition. He was advised by a consular officer 

that he must reapply and follow the same procedure he did in 1979. 

The petitioner nevertheless seeks approval of a new petition, utilizing the individual labor certification issued on February 13, 1980, 

and restoration of the beneficiary's original priority date. The petitioner explains that the position offered is identical to the position 

previously held and that an Immigration and Naturalization Service employee advised the petitioner's officers that it is not necessary to obtain a new labor certification because the original certification remains valid. 

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The district director cited the applicable statutes and regulations 

and concluded that the labor certification became a part of the 

original visa petition filed in April 1980. Since the beneficiary had 

already used the petition to immigrate to the United States, the 

district director determined that the visa petition, and thus the 

labor certification, cannot be restored. See 8 C.F.R. § 204.4(f) (1986). 

The district director found that, absent a new labor certification, 

he was unable to approve the petition pursuant to 8 C.F.R. 

§ 204.1(d)(1) (1986) and denied it accordingly. 

Counsel argues that the labor certification issued in 1980 is, in 

accordance with 20 C.F.R. §§ 656.30(a) and (d) (1986), valid indefinitely and may only be invalidated where a determination of fraud 

or willful misrepresentation of a material fact involving the labor 

certification has been made. Counsel submits on appeal that the 

visa petition should be approved using the 1980 labor certification 

but that the new petition should be accorded a priority date as of 

the date the new petition was filed. 

There are three issues to be resolved in this case: (1) whether the 

labor certification remained valid after it was used by the beneficiary to immigrate to the United States; (2) whether or not the new 

petition can convey the same priority date as the original petition; 

and, if not, (3) whether the new petition can convey a priority date 

as of the date it was filed. 

On February 23, 1982, the Associate Commissioner, Examinations, advised the Chief, Division of Labor Certifications, United 

States Employment Service, Department of Labor, that the Service 

had recently clarified its regulations regarding the use and validity 

of a visa petition which has been successfully used to obtain permanent resident status. The Service regulation at 8 C.F.R. § 204.4 

(1986) had been amended to add paragraph (f), specifying that the 

petition ceases to convey a priority date or visa classification after 

it has been successfully used to obtain residence. The Associate 

Commissioner questioned whether a labor certification continues to 

be valid under these circumstances. 

On April 6, 198z, the Chief responded, stating that "Mlle labor 

certification issued by the Department of Labor applies to a particular job, not to an. alien. When the job offer is filled by the arrival of an alien or for any other reason, the job offer would no longer 

exist. It follows, therefore, that the labor certification could not be 

used again after the lawful admission of an alien for permanent 

residence to take up the certified job offer." 

The Department of Labor's regulations state at 20 C.F.R. 

§ 656.30(c)(2) (1986) that "[a] labor certification involving a specific 

job offer is valid only for the particular job opportunity and for the 

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area of intended employment stated on the Application for Alien 

Employment Certification form." 

The Employment and Training Administration's Technical Assistance Guide No. 656—Labor Certifications, states on page 104 of 

the 1981 publication that certain limitations are placed on labor 

certifications granted in Schedule A and non-Schedule A occupations: 

A non-Schedule A labor certification is limited to the specific job opportunity, the 

alien for whom the certification was granted, and the area of intended employment stated on the application. If any of these factors change, a new labor certification is generally required. (Emphasis added.) 

In this instance, the labor certification issued in 1980 was limited 

to the job opportunity offered on November 7, 1979 (the date the 

original Application for Alien Employment Certification was accepted for processing by the Secretary of Labor's designated representative). That specific opportunity ceased to exist when the beneficiary immigrated and became employed by the petitioner. The job 

opportunity offered in the present proceeding is an altogether different opening, approximately 5 years later than the date the beneficiary was employed in the original job opening. We do not find 

that the petitioner is exempted from a new labor certification 

merely because it wishes to employ the same beneficiary in the 

same occupation at the same geographical location after he has 

previously been admitted to the United States for lawful permanent residence and abandoned that status. 

Thus, the labor certification issued on February 13, 1980, cannot 

be used again to accommodate the admission of the beneficiary as a 

preference immigrant under section 203(a)(6) of the Immigration 

and Nationality Act, 8 U.S.C. § 1153(a)(6) (1982). Without a new 

labor certification issued in accordance with section 212(a)(14) of 

the Act, 8 U.S.C. § 1182(a)(14) (1982), or evidence that the beneficiary is entitled to labor precertffication under 20 C.F.R. § 656.10 

(1984) (Schedule A), the visa petition cannot be approved and a new 

priority date cannot be accorded. 

As the district director correctly found, the beneficiary's priority 

date conveyed by the original petition cannot be restored. This 

would be contrary to the plain meaning of Title 8, Code of Federal 

Regulations, Section 204.4(f) (1986) which provides: 

Exception to revalidation. Any petition approved under section 204(b) of the Act 

ceases to convey a priority date or visa classification, and cannot be restored after 

it has been used by a beneficiary to obtain either an adjustment of status to 

lawful permanent resident or admission as an immigrant to lawful residence 

based upon a consnlar immigrant visa. 

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Should the petitioner obtain a new labor certification for the 

beneficiary, a petition filed thereafter would have a priority date as 

of the date the new labor certification was accepted for processing. 

ORDER: The decision of the district director is affirmed. 

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