dismissed H-1B Case: Accounting

MATTER OF A-A-A- CORP. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 13,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an accounting company, seeks to extend the Beneficiary's temporary employment as an 
"accountant" under the H -1 B 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-lB 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 of the California Service Center denied the petition, and affirmed the denial in two 
subsequent motions. The Petitioner appealed the denial, which we dismissed on the basis that the 
Petitioner had not obtained a certified labor condition application (LCA) at the time of filing. 
The matter is before us on a combined motion. The Petitioner asserts that the instant motion should 
be granted because of the ineffective assistance of former counsel, and submits a declaration from 
former counsel. We will deny the combined motion. 
I. MOTION REQUIREMENTS 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 1 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
II. ANALYSIS 
On motion, the Petitioner introduces new facts regarding its former counsel's ineffective assistance. 
The Petitioner asserts that, due to former counsel's ineffective assistance, the combined motions 
should be granted pursuant to Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988), aff'd, 857 F .2d 10 
(1st Cir. 1988) (in which the Board of Immigration Appeals established a framework for asserting 
ineffective assistance of counsel claims) and Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 
2000) (permitting such claims to go forward without strict compliance to Lozada factors). 
Matter of A-A-A- Corp. 
Although the Petitioner focuses its motion on its ineffective assistance of counsel claim, we decline 
to address that claim here. That is because, even assuming arguendo that former counsel was 
ineffective, we still could not grant the motion and approve the underlying petition. Based on the 
evidence of record, the Petitioner is not eligible for the benefit sought. 
As we stated in our prior decision, a petitioner is required to obtain a certified LCA before filing the 
H-1B petition. Section 101(a)(15)(H)(i)(b) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(B), (iii)(B)(l). A 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 8 C.F.R. 
§ 103.2(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). A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). The Petitioner's subsequent submission of an "updated" LCA, which was 
obtained and certified only after the Director issued a request for evidence, does not remedy the 
initial deficient filing. 
Nor does the "updated" LCA support and correspond to the H-1B petition, as required.' For example, 
the new LCA was not "granted for the period of extension of the H-1B status" as the Petitioner claims. 
The Petitioner requested a validity date beginning in October 2014. The "updated" LCA is valid from 
Ja~uary 2015 onwards, and thus does not cover the entire validity period requested. 
The "updated" LCA also states a different proffered wage than that listed on the H-1B petttlon. 
According to the H-1B petition, the Petitioner is offering the Beneficiary a wage of $22.78 per hour, 
which is the prevailing. wage for a Level I position under the "Accountants and Auditors" 
occupational category in the area of intended employment for the time period of July 2011 to June 
2012. The "updated" LCA indicates that the Petitioner will pay the Beneficiary a wage of $23.09 per 
hour, which is the prevailing wage for a Level Iposition under the "Accountants and Auditors" 
occupational category in the area of intended employment for the time period of July 2014 to June 
2015. The Petitioner has not, however, indicated that it would pay the Beneficiary at least the 
prevailing wage of $23.09 per hour which existed at the time it filed the H-1B petition in September 
2014. 
A petitioner is required to submit a certified LCA with its H-1B petition to demonstrate that it will 
pay the beneficiary the higher of either the prevailing wage for the occupational classification in the 
"area of employment" or the actual wage paid by the employer to other employees with similar 
experience and qualifications who are performing the same services. See Matter ofSimeio Solutions, 
LLC, 26 I&N Dec. 542, 545-546 (AAO 2015). The prevailing wage for the occupational 
classification in the area of intended employment must be determined as of the time ·of filing the 
1 While the Department of Labor (DOL) is the agency that certifies LCA applications, DOL regulations note that the 
Department of Homeland Security (i.e., its immigration benefits branch, U.S. Citizenship and Immigration Services 
(USCIS)) is the department responsible for determining whether the content of an LCA filed for a particular H-1 8 
petition actually supports and corresponds with that petition. See 20 C.F.R. § 655.705(b). 
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Matter of A-A-A- Corp. 
H-1B application. 20 C.P.R. § 655.731(a)(2). The Petitioner has not shown it would pay the 
Beneficiary the requisite wage at the time of filing. The Petitioner's submission of the "updated" 
LCA does not cure these substantive deficiencies. Rather, a petitioner should file an amended or 
new petition, with fee, accompanied by a new LCA, to reflect any material changes in the terms and 
conditions of employment. 8 C.P.R. § 214.2(h)(2)(i)(E). 
Aside from the above, the Petitioner has other substantive obligations concerning the LCA. These 
substantive obligations include documentation of the Petitioner's wage rate and making such 
documentation available for inspection to the extent required. See 20 C.P.R. § 655.731(b). The 
Petitioner has not demonstrated that it met these requirements at the time of filing, either. 
III. CONCLUSION 
The Petitioner has not demonstrated eligibility for the requested immigration benefit. Therefore, we 
must deny its combined motion. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of A-A-A- Corp., ID# 310661 (AAO June 13, 2017) 
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