dismissed H-1B Case: Business Education

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
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FILE: SRC 05 223 50241 Office: TEXAS SERVICE CENTER Date:
INRE:
PETITION:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Wor er Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § II 01(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
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'!<JL...- Robert P. Wiemafi~~ief
Administrative Appeals Office
www.uscis.gov
SRC 05 223 50241
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 an institution of higher education. It seeks to employ the beneficiary as an adjunct business
professor and endeavors to classify him as a nonimmigrant worker in a specialty occupation pursuant to section
101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(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 . On appeal , the petitioner states that a properly certified LCA was not
obtained prior to the filing of the present petition because it was unfamiliar with filing requirements .
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)(l5)(H)(i)(b) of the Act , 8 U.S.C. § 1101(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)( 15)(H) of the Act defines an H-l B 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 212(a)(n)(l) ....
Title 8, Code of Federal Regulations , part 214.2(h)(4)(iii)(B)(l) provides that the petitioner shall submit with an
H-IB petition "a certification from the Secretary of Labor that the petitioner has filed a labor condition
application with the Secretary." The regulations further provide:
Before filing a petition for H-l B 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.
8 C.F.R. § 214.2(h)(4)(i)(B)(l).
Pursuant to 8 C.F.R. § 103.2(b)(l2) , " 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 August 9, 2005. A properly certified LCA was not
submitted at the time of filing. The director then submitted a request for evidence (RFE) requesting , in part,
that the petitioner submit a properly certified LCA. In response to that request the petitioner submitted an
LCA certified on October 13, 2005 , 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-IB petition .
SRC 05 223 50241
Page 3
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.
ORDER: The appeal is dismissed. The petition is denied.