dismissed H-1B Case: Information Technology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W ., Rm. A3042 
Washington, DC 20529 
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FILE: WAC 01 062 54630 Office: CALIFORNIA SERVICE CENTER Date: APR f 2 20Q6 
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. § 1 lOl(a)(lS)(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, Director 
Administrative Appeals Office 
WAC 01 062 54630 
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 IT consulting firm. It seeks to employ the beneficiary as a programmer/analyst and endeavors 
to classify him as a nonirnrnigrant worker in a specialty occupation pursuant to section 10l(a)(l5)(H)(i)(b) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 8 1 lOl(a)(lS)(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 submits a new LCA. 
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 lOl(a)(lS)(H)(i)(b) of the Act, 8 U.S.C. 9 1 lOl(a)(lS)(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 1 (a)(15)(H) of the Act defines an H-1B nonimrnigrant 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-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. 9 214.2(h)(4)(i)(B)(l). 
Pursuant to 8 C.F.R. fj 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. . . ." The Form 1-129 petition was filed December 14,2000, accompanied by an uncertified 
Labor Condition Application (LCA). On April 30,2001, the director issued a request for evidence requesting 
a properly certified LCA. In response to that request the petitioner submitted an LCA which was signed by 
the Department of Labor's regional administrator on December 29, 2000. The validity dates for the LCA 
were left blank. The petition was denied. On appeal, counsel submits evidence that the certified LCA was 
faxed to CIS on May 2, 2001. The LCA submitted on appeal, however, had been altered with the validity 
dates handwritten on the LCA. The circumstances of the alteration are not explained in the record. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
WAC 01 062 54630 
Page 3 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
The petition must be denied because a properly certified LCA was not obtained prior to the filing of the H-1B 
petition. As previously noted, the Form 1-129 petition was filed on December 14,2000. The LCA submitted 
by the petitioner in response to the director's request for evidence was not certified until December 29, 2000, 
subsequent 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. 
5 1361. The petitioner has failed to sustain that burden. 
ORDER: The appeal is dismissed. The petition is denied.