dismissed H-1B Case: Marketing

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PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Avenue NW, Room 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: LIN 0525951938 Office: NEBRASKA SERVICE CENTER Date: JUN 20 ZOO7
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~aJ-r"",,",~I"~
Robert P. Wiemann, Chi
Administrative Appeal
www.uscis.gov
LIN 05 259 51938
Page 2
DISCUSSION: The director of the service center 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 a wholesale food distributor that seeks to employ the beneficiary as a marketing
manager. The petitioner, therefore, seeks to classify the beneficiary as a nonimmigrant worker in a specialty
occupation pursuant to section 101(a)(l5)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 U.S.C. § 1101 (a)(l5)(H)(i)(b).
The instant petition was received at the service center on September 8, 2005, but it did not contain a
certified Form ETA 9035 Labor Condition Application (LCA). As such, the director requested a certified
LCA in a December 6, 2005 request for evidence. In response, the petitioner submitted an uncertified
LCA on January 23, 2006. The director denied the petition on the basis of the petitioner's failure to
obtain a certified LCA and noted that should the evidence submitted not establish that the petition was
approvable at the time of filing, then the petition would be denied.
The regulation at 8 C.F.R. § 214.2(h)(4)(i)(B)(l) stipulates the following:
Before filing a petition for H-l B 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 regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(l) states that, when filing an H-IB petition, the petitioner
must submit with the petition "[a] certification from the Secretary of Labor that the petitioner has filed a
labor condition application with the Secretary." Therefore, in order for a petition to be approvable, the
LCA must have been certified before the H-l B petition was filed. The submission of a certified LCA
certified subsequent to the filing of the petition satisfies neither 8 C.F.R. § 214.2(h)( 4)(i)(B)(l) nor
8 C.F.R. § 214.2(h)( 4)(iii)(B)(l). CIS regulations affirmatively require a petitioner to establish eligibility
for the benefit it is seeking at the time that the petition is filed. See 8 C.F.R. § 103.2(b)(l2). As such, the
AAO finds that the director's denial of the petition was proper.
On appeal, the petitioner submits a copy of the LCA, case number
15, 2006 and states the following on the Form I-290B:
certified on March
When we filed the original petition we were not aware that Form ETA 9035 had to [be]
certified by the Dept. of Labor. Thus, we are re-submitting a Form ETA 9035 that has
been certified by the Dept. of Labor.
The petitioner's submission of a certified LCA has not satisfied the regulation. The petitioner's failure to
procure a certified LCA prior to filing the H-1B petition precludes its approval, and pursuant to
8 C.F.R. § 214.2(h)(4)(i)(B)(l) and 8 C.F.R. § 214.2(h)(4)(iii)(B)(l), there is no provision for
discretionary relief from the LCA requirements. Accordingly, the AAO will not disturb the director's
denial of the 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 not sustained that burden.
ORDER: The appeal is dismissed. The petition is denied.