dismissed H-1B Case: It Services

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 
MAY 0 1 2015 
OFFICE: CALIFORNIA SERVICE CENTER FILE: 
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)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion 
(Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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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. 
I. INTRODUCTION 
On the Form I-129 visa petition, the petitioner describes itself as an 84-employee "IT Services 
Provider and BPO" company1 established in In order to employ the beneficiary in what it 
designates as a "Software Developer" position at a salary of $60,000 per year,2 the petitioner seeks 
to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). 
The director denied the petition, concluding that the petitioner did not submit a valid Labor 
Condition Application (LCA) certified for the beneficiary's work location. 
The record of proceeding before us contains the following: (1) the Form I-129 and supporting 
documentation; (2) the director's request for additional evidence (RFE); (3) the petitioner's response 
to the RFE; (4) the director's letter denying the petition; and (5) the Form I-290B, Notice of Appeal 
or Motion, and supporting documentation. 
Upon review of the entire record of proceeding, we find that the evidence of record does not overcome 
the director's basis for denying this petition. Accordingly, the appeal will be dismissed, and the petition 
will be denied. 
II. STANDARD OF REVIEW 
In the exercise of our administrative review in this matter, as in all matters that come within our 
purview, we follow the preponderance of the evidence standard as specified in the controlling 
precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), unless the law specifically 
provides that a different standard applies. In pertinent part, that decision states the following: 
Except where a different standard is specified by law, a petitioner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence 
that he or she is eligible for the benefit sought. 
1 The petitioner provided a North American Industry Classification System (NAICS) Code of 541511, 
"Custom Computer Programming Services" U.S. Dep't of Commerce, U.S. Census Bureau, North American 
Industry Classification System, 2012 NAICS Definition http: //www.census.gov/cgi-bin/sssd/ 
naics/naicsrch?code= 541 51l&search=201 2 (last visited April15, 20 15) . 
2 Both LCAs submitted by the petitioner in support of the petition were certified for use with a job prospect 
within the "Software Developers, Applications" occupational classification, SOC (O*NET/OES) Code 15-
11 32, and a Level I (entry-level) prevailing wage rate, the lowest of the four assignable wage-levels. 
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* * * 
NON-PRECEDENT DECISION 
The "preponderance of the evidence" of "truth" is made based on the factual 
circumstances of each individual case. 
* * * 
Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (19 87) 
(discussing "more likely than not" as a greater than 50% chance of an occurrence 
taking place). If the director can articulate a material doubt, it is appropriate for the 
director to either request additional evidence or, if that doubt leads the director to 
believe that the claim is probably not true, deny the application or petition. 
Id. at 375-76. 
We conduct our review of service center decisions on a de novo basis. See Soltane v. DOJ, 381 
F.3d at 145. In doing so, as noted above, we apply the preponderance of the evidence standard as 
outlined in Matter of Chawathe. Upon our review of the present matter pursuant to that standard, 
however, we find that the evidence in the record of proceeding does not support counsel's 
contentions that the evidence of record requires that the petition at issue be approved. Applying the 
preponderance of the evidence standard as stated in Matter of Chawathe, we find that the director's 
grounds for denial were correct. Upon our review of the entire record of proceeding, and with close 
attention and due regard to all of the evidence, separately and in the aggregate, submitted in support 
of this petition, we find that the petitioner has not established that its claims are "more likely than 
not" or "probably" true. As the evidentiary analysis of this decision will reflect, the petitioner has 
not submitted relevant, probative, and credible evidence that leads us to believe that its claims are 
"more likely than not" or "probably" true. 
III. DISCUSSION 
The issue before us is whether the petitioner established eligibility at the time the Form 1-129 was 
received by U.S. Citizenship and Immigration Services (USCIS). 
General requirements for filing immigration applications and petitions are set forth at 8 C.F.R. 
§103.2(a)(l) as follows: 
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NON-PRECEDENT DECISION 
[E]very application, petition, appeal, motion, request, or other document submitted 
on the form prescribed by this chapter shall be executed and filed in accordance with 
the instructions on the form, such instructions ... being hereby incorporated into the 
particular section of the regulations requiring its submission .... 
Further discussion of the filing requirements for applications and petitions is found at 8 C.F.R. 
§ 103.2(b)(1), which states in pertinent part: 
An applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the application or petition. All required application or 
petition forms must be properly completed and filed with any initial evidence 
required by applicable regulations and/or the form's instructions. 
In cases where evidence related to filing eligibility is provided in response to a director's request for 
evidence, 8 C.F.R. § 103.2(b)(1) states: 
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 regulations require that before filing a Form I-129 petition on behalf of an H-1B worker, a 
petitioner obtain a certified LCA from DOL in the occupational specialty in which the H -1B worker 
will be employed. See 8 C.F. R. § 214.2(h)(4)(i)(B). The instructions that accompany the Form 
I-129 also specify that an H-1B petitioner must document the filing of a labor certification 
application with DOL when submitting the Form I-129. 
In the instant case, the petitioner filed the Form I-129 with USCIS on April 7, 2014. The petitioner 
submitted an LCA with the petition certified on April 3, 2014, which indicated that the beneficiary's 
work location would be in Michigan. 
On June 25, 2014, the service center issued an RFE in this matter. The service center requested, 
inter alia, evidence demonstrating the existence of an employer-employee relationship between the 
petitioner and the beneficiary. 
In response, counsel stated that "due to the project requirement change and the request by the client, 
the Beneficiary will work from the office located at 
" Counsel further stated that an LCA certified for the 
Pennsylvania location was submitted with the RFE response. 3 However, the LCA counsel 
referenced was not submitted. 
3 Counsel stated the new LCA was submitted as "Exhibit D." However, we note the record of proceeding 
does not contain documentation submitted under the "Exhibit D" cover page. 
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NON-PRECEDENT DECISION 
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The director denied the visa petition, finding that the petitioner had not submitted an LCA certified 
for the Pennsylvania employment location. 
On appeal, counsel states that a certified LCA for the Pennsylvania location "was 
mentioned in the RFE response," and that "due to clerical error" the LCA was not submitted with 
the RFE response. The petitioner submits, among other things, a copy of the LCA certified, on 
September 16, 2014 for the Pennsylvania employment location. 
The Form I-129 filing requirements imposed by regulation require that the petitiOner submit 
evidence of a certified LCA at the time of filing. In this matter, the LCA submitted on appeal, 
identifying Pennsylvania as the work location, was certified approximately five months 
after the petitioner filed the Form I-129. A petitioner must establish eligibility at the time of filing 
the nonimmigrant vis� petition. 8 C.F.R. § 103.2(b )(1). 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 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
The record establishes that, at the time of filing, the petitioner had not obtained a certified LCA in 
the claimed occupational specialty for the intended work locations and, therefore, as indicated by 
the director, did not comply with the filing requirements at 8 C.F. R. § 214.2(h)(4)(i)(B). 4 
4 While DOL is the agency that certifies LeA applications before they are submitted to USeiS, DOL 
regulations note that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, 
USCIS) is the department responsible for determining whether the content of an LeA filed for a particular 
Form 1-129 actually supports that petition. See 20 e.F.R. § 655. 705 (b ), which states, in pertinent part: 
For H-1B visas .. . DHS accepts the employer's petition (DHS Form 1-129) with the DOL 
certified LeA attached. In doing so, the DHS determines whether the petition is supported 
by an LCA which corresponds with the petition, whether the occupation named in the [LeA] 
is a specialty occupation or whether the individual is a fashion model of distinguished merit 
and ability, and whether the qualifications of the nonimmigrant meet the statutory 
requirements ofH-lB visa classification. 
[Italics added]. As 20 C.F.R. § 655.705 (b) requires that USCIS ensure that an LeA actually 
supports the H-1B petition filed on behalf of the beneficiary, this regulation inherently 
necessitates the filing of an amended H-1B petition to permit USeiS to perform its 
regulatory duty to ensure that the new LeA actually supports the H-1B petition filed on 
behalf of the beneficiary. In addition, as 8 C.F.R. § 10 3.2(b)(1) requires eligibility to be 
established at the time of filing, it is factually impossible for an LeA approved by DOL after 
the filing of an i
'
nitial H-1B petition to establish eligibility at the time the initial petition was 
filed. Therefore, contrary to the assertions of counsel, in order for a petitioner to comply 
with 8 e.F.R. § J03.2(b)( 1) and for USCIS to perform its regulatory duties under 20 e.F.R. 
§ 655. 705 (b), a petitioner must file an amended H-lB petition with USeiS whenever a 
beneficiary's job location changes such that a new LeA is required to be filed with DOL. 
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NON-PRECEDENT DECISION 
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IV. CONCLUSION AND OR DER 
As set forth above, we agree with the director's finding that the evidence of record does not 
demonstrate eligibility at the time of the filing of the petition. Accordingly, the director's decision 
to deny the petition will not be disturbed.5 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. The petition is denied. 
5 As the grounds discussed above are dispositive of the petitioner's eligibility for the benefit sought in this 
matter, we will not address and will instead reserve our determination on the additional issues and 
deficiencies that we observe in the record of proceeding with regard to the approval of the H-lB petition.