dismissed H-1B Case: Financial Services

identifyingdatadeletedto
preventclearly unwarr~ted
invasionof personalpnvacy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLIC COpy
OCT 3 1 2007
FILE: WAC 0616550532 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(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 06 165 50532
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 states on the Form 1-129 that it is a "financial services" business. It seeks to employ the
beneficiary as a financial/tax manager, and endeavors to classify him as a nonimmigrant worker in a specialty
occupation pursuant to section 101(a)(l5XH)(iXb) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ 1101(aX15)(H)(iXb).
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 December 6, 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. § 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)(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 212(aXnX1) ....
Title 8, Code of Federal Regulations, part 214.2(h)(4)(iii)(B)(l) 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-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.
8 C.F.R. § 214.2(h)(4)(iXB)(1).
The regulation at 8 C.F.R. § 214.2(h)(15)(ii)(B)(1) indicates that any request for extension must be
accompanied by either a new or a photocopy of the prior certification from the Department of Labor that the
petitioner continues to have on file an LCA valid for the period of requested employment.
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 April 5, 2006. A properly certified LCA for the beneficiary's
intended work location covering the dates of intended employment was not submitted at the time of filing. The
director then issued a request for evidence (RFE) requesting that the petitioner submit a properly certified LCA
for the dates of intended employment (April 5, 2006 - April 5, 2009). In response to that request the petitioner
WAC 06 165 50532
Page 3
submitted an LCA certified on June 21,2004, valid from June 21, 2004 through April 5, 2006. 1 On appeal, the
petitioner states that it failed to submit a new LCA supporting the present petition through inadvertence, mistake
or excusable neglect. The petitioner submitted on appeal a new LCA certified on December 6, 2006, subsequent
to the filing of the present petition. The petition must, accordingly, be denied because certification was not
obtained prior to the filing ofthe H-lB 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.
ORDER: The appeal is dismissed. The petition is denied.
I The present petition is a request for continuation of previously approved employment without change and
with the same employer. The LCA submitted in response to the director's request for evidence was the LCA
submitted in support of the previous petition.