dismissed H-1B Case: Accounting

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PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: WAC 06 070 50100 Office: CALIFORNIA SERVICE CENTER Date: SiP 10 911
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 06 070 50100
Page 2
DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be denied.
The petitioner is a corporation operating several bakery/restaurant/coffee shops and seeks to employ the
beneficiary as an accountant. It endeavors to classify him as a nonimmigrant worker in a specialty occupation
pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ 1101(a)(15)(H)(i)(b).
The director denied the petition because a certified labor condition application (LCA) was not obtained prior to
the filing of the Form 1-129 petition. Subsequent to the director's decision, the petitioner submitted an LCA for
the proffered position which was certified on June 7 , 2006.
The issue to be discussed in this proceeding is whether a certified LCA was obtained prior to the filing of the
Form 1-129 petition.
Section 101(a)(15)(H)(i)(b) of the Act, 8 U.S.C. § 1I 01(a)(l5)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform
services in a specialty occupation.
Section 101(a)(l5)(H) of the Act defines an H-1B nonimmigrant as:
[A]n alien who is coming temporarily to the United States to perform services ... in a specialty
occupation . . . and with respect to whom the Secretary of Labor determines and certifies to the
Attorney General that the intending employer has filed with the Secretary of Labor an
application under section 1182(n)(1) ....
The regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(1) provides that the petitioner shall submit with an H-1B
petition "a certification from the Secretary of Labor that the petitioner has filed a labor condition application
with the Secretary." The regulations further provide at 8 C.F.R. § 214.2(h)(4)(i)(B)(1):
Before filing a petition for H-1B classification in a specialty occupation the petitioner shall
obtain a certification from the Department of Labor that it has filed a labor condition
application in the occupational specialty in which the alien(s) will be employed.
Pursuant to 8 C.F.R. § 103.2(b)(12), "an application or petition shall be denied where evidence submitted in
response to a request for initial evidence does not establish filing eligibility at the time the application or
petition was filed .... " The Form 1-129 petition was filed January 6, 2006. On March 23, 2006, the director
requested , in part , that the petitioner provide a properly certified LCA. In response to that request the
petitioner submitted an LCA certified on December 31, 2002, valid from January 10, 2003 through January
10, 2006. That LCA, however , was from a prior employer/petitioner, not the petitioner in the present case,
and it did not cover the intended dates of employment noted in the petition. The petition was accordingly
denied. As previously noted, subsequent to the director's denial, the petitioner submitted a new LCA certified
on June 7, 2006, subsequent to the filing of the initial petition. The petition must, accordingly, be denied
because certification was not obtained prior to the filing of the H-l B petition.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C .
§ 1361. The petitioner has failed to sustain that burden.
WAC 06 070 50100
Page 3
ORDER: The appeal is dismissed. The petition is denied.