dismissed H-1B Case: Information Technology

identifying data deleted to 
prevent clearly unwamted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Irmnigration 
FILE: EAC 04 044 5 1467 Office: VERMONT SERVICE CENTER Date: AUG 1 5 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 l(a)( 15)(H)(i)(b) 
ON BEHALF OF PETITIONER: Self-represented 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 
EAC 04 044 5 1467 
Page 2 
DISCUSSION: The service center director denied the nonimmigrant visa petition. The matter is now on appeal 
before the Administrative Appeals Office (AAO). The appeal will be dismissed. The petition will be denied. 
The petitioner is a provider of manpower to medical, environmental, and radiology laboratories. It seeks to 
employ the beneficiary as a system administrator and to extend his classification as a nonimmigrant worker in a 
specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the ground that the beneficiary was working for the petitioner's client at a 
location that was different from the work location indicated in the petitioner's'certified labor condition 
application (LCA). 
On appeal the petitioner indicates that the beneficiary continued to work for his previous employer for several 
months after the instant petition was filed in late 2003, and did not begin working for the petitioner at the 
work location identified in the LCA until April 2004. 
As specified in 8 C.F.R. 8 214.2(h)(4)(i)(B)(l): 
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. 
The record shows that the petitioner filed its Form 1-129 petition on December 3, 2003, requesting H-1B 
classification for the beneficiary in the proffered position for the three-year period of December 8, 2003 
through December 7, 2006. The petition identified the beneficiary's work location as Salem, New 
Hampshire. The petition was accompanied by an LCA, certified by the Department of Labor (DOL) on 
November 26, 2003, which likewise identified Salem, New Hampshire as the beneficiary's only work 
location. 
In response to the director's request for evidence (RFE), the petitioner's immigration coordinator submitted 
two letters to the service center. One of the letters, dated June 24, 2004, stated that the beneficiary "has been 
engaged" with the petitioner in the proffered position since May 1, 2003 and was currently "providing 
services at Orange Community MRI" in the State of New Jersey. The other letter, dated July 8, 2004, stated 
that the beneficiary "joined the petitioner [in] April 2004 with its end client Orange Community M.R.I. in 
New Jersey." The petitioner also submitted a letter from the beneficiary's previous H-1B employer in Edison, 
New Jersey, dated June 29, 2004, which states that the beneficiary worked for that company from April 2002 
to June 2004. 
Based on the foregoing information that the beneficiary had not complied with the work location provision of 
the LCA, the director denied the petition on November 15,2004. 
On appeal the petitioner confirms that the beneficiary did not begin working for the petitioner at the time the 
instant petition was filed (December 3, 2003), and did not work in Salem, New Hampshire, the work location 
indicated in the LCA, for several months thereafter while he was finishing up a project for his previous H-1B 
employer. The petitioner claims that the beneficiary worked part-time in Salem, New Hampshire for the 
previous H-1B employer from April to July 2004, but acknowledges that he also worked during that time for 
EAC 04 044 5 1467 
Page 3 
the petitioner's client - Orange Community MRI - in New Jersey. As of July 2004 the beneficiary was 
apparently working full-time for the client in New Jersey, though the petitioner cites a subsequent pay 
statement for October 2004, identifying the beneficiary's address by that time as Salem, New Hampshire, as 
evidence of compliance with the LCA. 
The foregoing evidence is inconsistent and contradictory. It is incumbent upon a petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Attempts to explain or reconcile such 
inconsistencies will not suffice without competent evidence pointing to where the truth lies. See Matter of 
Ho, 19 I&N Dec. 582, 591-92, (BIA 1988). No such competent evidence has been submitted by the 
petitioner. 
Moreover, the foregoing evidence fails to demonstrate compliance with the work location provision of the 
LCA. CIS regulations require a petitioner to establish eligibility for the benefit it is seeking at the time the 
petition is filed. See 8 C.F.R. 6 103.2(b)(12). A visa petition may not be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corporation, 
17 I&N Dec. 248,249 (Reg. Cornrn.). As stated in Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornrn. 
1998), "[tlhe AAO cannot consider facts that come into being only subsequently to the filing of the petition." 
Regardless of whether the beneficiary may have started working for the petitioner in Salem, New Hampshire 
sometime during 2004, that was not the beneficiary's work location at the time the H-1B petition was filed in 
December 2003 and for at least several months of 2004. Since the petitioner was not in compliance with the 
work location provision of the LCA at the time the instant petition was filed, the beneficiary is ineligible for 
H-1B classification pursuant to this petition. 
The petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 5 1361. The 
petitioner has not sustained that burden. Accordingly, the AAO will not disturb the director's decision denying 
the petition. 
ORDER: The appeal is dismissed. The petition is denied.