dismissed H-1B Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A-A- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 10,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an accounting corporation, seeks to continue to employ the Beneficiary as an 
"accountant" under the H-1B nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The H-1B 
program allows a U.S. employer to temporarily employ a qualified foreign worker in a position that 
requires both (a) the theoretical and practical application of a body of highly specialized knowledge 
and (b) the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as 
a minimum prerequisite for entry into the position. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner had not demonstrated that, prior to filing the H-IB petition, the Petitioner had obtained a 
certified labor condition application (LCA) from the Department of Labor (DOL) as required by 8 
C.F.R. § 214.2(h)(4)(i)(B). The Director granted two subsequent motions and affirmed her prior 
reasoning in both. 
The matter is now before us on appeal. In its appeal, the Petitioner concedes that it did not have an 
LCA certified for the period of requestetl employment at the time it submitted the instant H-1B 
petition, but observes that the Petitioner was able to obtain one subsequently, which the Petitioner 
asserts should be considered sufficient in the circumstances of this case. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
In pertinent part, the Act defines an H-1B nonimmigrant worker as: 
an alien ... who is coming temporarily to the United States to perform services ... in 
a specialty occupation described in section 214(i)(1) ... who meets the requirements 
for the occupation specified in section 214(i)(2) ... and with respect to whom the 
Secretary of Labor determines and certifies to the [Secretary of Homeland Security} 
that the intending employer has filed with the Secretary [of Labor} an application 
under section 212 (n)( I). 
Matter of A-A-A- Corp. 
Section 101(a)(15)(H)(i)(b) ofthe Act (emphasis added). 
The regulations require that before filing a Form I-129, Petition for a Nonimmigrant Worker, on 
behalf of an H-1B worker, a petitioner obtain a certified LCA from the DOL in the occupational 
specialty in which the H-1B worker will be employed. See 8 C.F.R. § 214.2(h)(4)(i)(B), (iii)(B)(J). 
The instructions that accompany the Form I -129 also specify that an H -1 B petitioner must document 
the filing of a labor certification application with the DOL when submitting the Form I-129. 
General requirements for filing immigration applications and petitions are set forth at 8 C.F.R. 
§103.2(a)(l) as follows: 
[E]very application, petition, appeal, motion, request, or other document submitted on 
the form prescribed by this chapter shall be executed and filed in accordance with the 
instructions on the form, such instructions . . . being hereby incorporated into the 
particular section of the regulations requiring its submission .... 
Further discussion of the filing requirements for applications and petitions is found at 8 C.F.R. 
§ 1 03 .2(b )( 1 ), which states in pertinent part: 
An applicant or petitioner must establish that he or she is eligible for the 
requested benefit at the time of filing the benefit request and must continue to 
be eligible through adjudication. Each benefit request must be properly 
completed and filed with all initial evidence required by applicable regulations 
and other USCIS instructions. Any evidence submitted in connection with a 
benefit request is incorporated into and considered part of the request. 
In cases where evidence related to filing eligibility is provided in response to a Director's request for 
evidence, 8 C.F.R. § 103.2(b)(12) states: 
[A] benefit request shall be denied where evidence submitted in response to a request 
for evidence does not establish filing eligibility at the time the benefit request was 
filed. 
II. ANALYSIS 
The record does not establish that, at the time of filing, the Petitioner had obtained a certified LCA in 
the claimed occupational specialty for employment during the intended period of employment at the 
intended work location. 
In the instant case, the Petitioner filed the Form I-129 on September 25, 2014, for a period of 
employment lasting from October 1, 2014, to October 1, 2017. The Petitioner submitted a certified 
LCA with the petition, dated September 26, 2011. It was certified for employment from October 1, 
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Matter of A-A-A- Corp. 
2011, to October 1, 2014, and was not, therefore, valid for the period of employment requested in 
this case. 
In response to a request for evidence issued in this matter, the Petitioner provided a second LCA. It 
was certified on January 28, 2015. It had not, then, been certified on September 25, 2014, when the 
Petitioner submitted the instant H -1 B petition. 
The Director denied the H -1 B petition, finding, as was noted above, that the Petitioner had not 
submitted an LCA certified prior to the filing of the petition. 
The Form I-129 filing requirements discussed above require that a petitioner submit evidence of a 
certified LCA at the time of filing. In this matter, the LCA submitted with the H-1B petition was not 
certified for the period of employment requested, and the LCA submitted in response to the RFE had 
not been certified when the H-1B petition was filed. Neither of those LCAs may be validly used to 
support the instant H-1 B petition. The record does not indicate the existence of any other LCA that 
may validly be used to support the instant H-1B petition. 
A petitioner must establish eligibility at the time of filing the nonimmigrant visa petition and must 
continue to be eligible for the benefit through adjudication. 8 C.F.R. § 1 03.2(b )(1 ). A visa petition 
may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). The Petitioner 
cannot establish eligibility at the time of filing by submitting an LCA certified by DOL after the 
filing of the petition. Therefore, contrary to the Petitioner's assertions, in order for a petitioner to 
comply with 8 C.F.R. § 103 .2(b )(1) and for US CIS to perform its regulatory duties under 20 C.F .R. 
§ 655.705(b), a petitioner must file a new H-1B petition with USCIS. 
The record does not establish that, at the time of filing, the Petitioner had obtained a certified LCA in 
the claimed occupational specialty for employment during the intended period of employment at the 
intended work location. Therefore, as indicated by the Director, the Petitioner did not comply with 
the filing requirements at 8 C.F.R. § 214.2(h)(4)(i)(B). 
III. CONCLUSION 
The burden is on the Petitioner to show eligibility for the immigration benefit sought. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-A-A- Corp., ID# 79527 (AAO Nov. 10, 2016) 
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