The Curious Case of LIN0610850298

While the AAO will frequently find grounds for denial that were not stated by the Service Center, it is a rare case when they find grounds for approval that were not stated by the Petitioner.

On January 9, 2008 the AAO issued an opinion sustaining the appeal of an H-1B denial where a software consulting company sought to employ a consultant, based on AC-21, for three years beyond the regulatory six year limit however they did not grant the full three years requested instead they limited the approval period to just one year. What makes this curious is the independent research done by the AAO allowing it to conclude that an LCA approved for Florence, KY was valid for employment in Cincinnati, Ohio notwithstanding the fact that the employer never made the argument.

The employer when submitting the I-129 petition properly included an LCA valid for the requested period of stay. The LCA indicated the employment would be in Florence, KY while the I-129 indicated that the employment would be in Cincinnati, OH. The Service Center requested an LCA valid for Cincinnati and the employer provided one. Unfortunately the validity of this second LCA began after the date the I-129 was filed and therefore the Service denied the petition.

On appeal the employer challenged the denial on grounds related to the second LCA, but did not challenge the Service rejection of the original LCA. The AAO reversed stating: “The AAO disagrees . . . that LCA submitted at the time the petition was filed is defective.” What makes this remarkable is the AAO's sua sponte considered issues not presented by counsel and not favorable to the Service.

The AAO's analysis described how the AAO utilized Mapquest to determine the proximity of Florence, KY to Cincinnati, OH and then determined that the two cities were in the same MSA and so the Florence KY LCA was valid for the Cincinnati employment.

As I speculate on the matter it seems quite likely that a member of the AAO staff had actual knowledge that Florence, Ky is a suburb of Cincinnati, OH and recognized that the original denial was improper. But I think this was shear luck. We as practitioners must be prepared to examine each and every adverse decision made by USCIS. As this case demonstrates it may well be that USCIS is wrong in their basic analysis. In a perfect world the USCIS would always get the basics right, but there is no reason to expect that they will and justice should not turn on a happenstance.