dismissed H-1B Case: Information Technology

U.S. Department ofHome%arnd Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
US. Citizenship 
and Immgation 
FEE: EAC 694 073 53293 Office: VERMONT SERVICE CENTER Date: ~cj 2 - <+lC . 
PETITION: Petition for a Noraimmigrant Worker Pursuant to Section 1QB(a)(lS)(H)(i)(b) of the 
gration and Nationality Act, 8 U.S.C. $ 1 101(a)(15)(H)(i)(b) 
OF IPETI[THONER: SELF-WEPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Offifice 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, Director 
Ad~nistrative Appeals Office 
EAC 04 073 53293. 
Page 2 
DISCUSSION: The acting director of the Vermont Service Center denied the noni grant visa petition and the 
matter is before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition 
will be denied. 
The petitioner is a business providing integrated information technology services, with 2,300 employees. It 
seeks to employ the beneficiary as a software engineer pursuant to section BOP(a)(ES)(H)(i)(b) of the 
gration and Nationality Act (the Act), 8 U.S.C. 5 110l(a)(lS)(H)(i)(b). The director denied the petition 
because the petitioner failed to submit a11 of the requested evidence, specifical1y a certified Labor Condition 
Application (LCA) from the Department of Labor covering the period of employment identified in the Form 
1-129. Petition for a Noni 
The record of proceeding before the AAO contains: (1) Fonn 1-129 and supporting documentation; (2) the 
director's request for evidence; (3) the petitioner's response to the director's request; (4) the director's 
February 10, 2004 denial of the petition; and (5) Fom I-290B, with a certified LCA covering the period of 
intended employment. 
The issue before the AAO is whether the petitioner's submission of a certified LCA on appeal overcomes the 
basis for the director's denial of the petition. 
The petitioner filed the instant Fom 1-129 with Citizenship and gration Services (CIS) on January 20, 
2004, without the certified LCA (Form ETA 9035) required by regulation. See 8 C.F.R. 3 214.2(h)(i)(B). 
The petitioner also failed to submit the LCA in response to the director's January 29, 2004 request for 
evidence, which specifically asked the petitioner for this document. Accordingly, the director denied the 
petition. See 8 C.F.R. $5 B03.2(b)(ll) and (14). The petitioner now seeks to supplement the record by 
submitting a certified LCA. 
The MO will not, however, accept the LCA submitted by the petitioner. When, as here, a petitioner has 
been put on notice of a deficiency in the record and has been given an opportunity to provide evidence to 
respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal for any 
purpose. See Matter sf Ssriano, 19 I&N Dec. 764 (BIA 1988); see also Matter sf Bbaigbena, 19 I&W Dec. 
533 (BPI. 1988). 
Further, the AAO finds that the certified LCA submitted by the petitioner, even if accepted as evidence, 
would not satisfy Fom 1-129 filing requirements. 
General requirements for filing i gration applications and petitions are set forth at 8 C.F.R. 5 P03.2(a)(1) as 
follows: 
[Elvery application, petition, appeal, motion, request, or other document submitted on the 
fom prescribed by this chapter shall be executed and filed in accordance with the instructions 
on the fom, such instructions . . . being hereby incorporated into the particular section of the 
regulations requiring its submission . . . . 
EAC 04 073 53293 
Page 3 
Further discussion of the filing requirements for applications and petitions is found at 8 C.F.W. $ 103.2($)(1): 
An applicant or petitioner must establish eligibility for a requested immigration benefit. An 
application or petition fom must be completed as applicable and filed with any initial 
evidence required by regulation or by the instructions on the fom . . . . 
As previously noted, regulations governing the filing of H-IB petitions require a petitioner to obtain a 
certified LCA prior to submitting the Fom 1-129. See 8 C.F.R. $ 214.2(h)(4)(i)(B). The instructions that 
accompany the Form 1-129 also specify that an W-IB petitioner mst document the filing of a LCA with the 
Department of Labor when submitting the Foran 1-129. 
However, the LCA the petitioner submits on appeal was certified on February 10, 2004, several weeks 
subsequent to its filing of the Form 1-129 on behalf of the beneficiary. As a result, the LCA does not satisfy 
the filing requirements just discussed. A petitioner must establish eligibility at the time of filing a 
grant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of MicheEin Tire Cora., 17 1&M Dec. 248 (Reg. 
Corn. 1978). 
For the reasons already discussed, the petitioner's submission of a certified LCA on appeal does not 
overcome the basis for the director's denial. Accordingly, the AAO shall not disturb the director's denial of 
the petition. 
OmER: The appeal is dismissed. The petition is denied.