dismissed H-1B Case: Education

PUBLIC COPY 
U.S. Department of Homcland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenshi 
and Immigrat on 
Services 
P 
FILE: SRC 03 257 5 1792 Office: TEXAS SERVICE CENTER Date: SEP 0 2 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 I(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. @ 1 I0 I (a)( l S)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that ofice. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 03 257 5 1792 
Page 2 
DISCUSSION: The service center director denied the nonim~nigrant 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 privatelchurch school and seeks to employ the beneficiary as a co-teacher in a multi-level 
classroom. It endeavors to classi@ her as a nonitnmigrant worker in a specialty occupation pursuant to section 
10l(a)(l S)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101(a)(1 S)(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 the LCA was submitted to the certifying 
agency (U.S. Department of Labor) prior to the filing of the Form 1-129 petition, but was not certified, through no 
fault of the petitioner, until after the petition was filed. 
The issue to be discussed in this proceeding is whether a certified LCA was obtained prior to the filing of the 
1- 129 petition. 
Section 10 1 (a)(] S)(H)(i)(b) of the Act, 8 1J.S.C. Ej 1 10 l (a)(l S)(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 10 I(aX 15)(H) of the Act defines an H-1 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 ernployer has filed with the Secretary of Labor an 
application under section I 1 82(n)( 1 ) . . . . 
The regulation at 8 C.F.R. § 214,2(h)(4)(iii)(B)(I) 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: 
Before filing a petition for H-IB 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 afien(s) will be employed. 
8 C.F.R. $214.2(h)(4)(i)(B)(l). 
The present petition is a petition for continuation of previously approved employment. The initial petition 
was approved by Citizenship and Immigration Services (CIS) and valid from October 1,2000 until October 1, 
2003. The record does not contain a copy of the LCA supporting those approval dates. The petition for 
continuation of previously approved employment (the petition now before the AAO) was filed on September 
24, 2003. The LCA filed in support of the continuation petition was certified on January 26, 2004, and valid 
from that date until October I, 2006. 
The regulation at 8 C.F.R. fj 214.2(h)(lS)(iiXB) provides in part that an H-I B extension of stay may be authorized 
for a period of up to three years for a beneficiary of an H-1 B petition in a specialty occupation. The request for 
extension must be accompanied by either a new or a photocopy of the prior Department of Labor certification that 
the petitioner continues to have on file an LCA valid for the period of time requested for the occupation. Thus, 
SRC 03 257 5 1792 
Page 3 
the petition must be supported by a certified LCA covering employment from the date of the petition, September 
24, 2003, until October 1, 2006. The LCA submi~ted by the petitioner to support the request for continuation of 
previously approved employment was certified on January 26, 2004, and covers employment from January 26, 
2004 until October 1,2006. 
Pursuant to 8 C.F.R. 5 103.2(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. . . ." As previously stated, the present Form 1-129 petition was filed September 24, 2003. 
The LCA submitted in support of the petition was certified subsequent to the filing of the petition. The 
petition must, accordingly, be denied because certification was not obtained prior to the filing of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
tj 1 361 . The petitioner has failed to sustain that burden. 
ORDER: The appeal is dismissed. The petition i:j denied.