dismissed H-1B Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF QSDM-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 16, 2016 
PETITION: FORM I-129, PETITION FORA NONIMMIGRANT WORKER 
The Petitioner, a machining and instrumentation business, seeks to continue the Beneficiary's 
temporary employment as a "Mechanical Engineer" under the H -1 B nonimmigrant classification. 
See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. 
§ 1101(a)(15)(H)(i)(b). The Director, Vermont Service Center, denied the petition. The matter is 
now before us on appeal. Upon de novo review, we will dismiss the appeal. 
I. ISSUES 
The issues before us are whether (1) the labor condition application (LCA) submitted in support of 
the petition established eligibility at the time of filing, and (2) the Petitioner had specialty occupation 
work available when the petition was filed. 
II. THE LCA AND H-1B VISA PROCESS 
A. Facts and Procedural History 
The Petitioner filed this petition on August 12, 2014, with a requested validity period beginning 
October 1, 2014, and ending September 30, 2017. The Petitioner submitted an LCA certified on 
August 24, 2011, for a validity period beginning October 1, 2011, and extending to October 1, 2014, 
with the visa petition. In response to the Director's request for evidence (RFE), the Petitioner 
submitted a second LCA certified on October 31, 2014, for a validity period beginning October 28, 
2014, and ending October 28, 2017. 
On appeal the Petitioner asserts that it filed the instant petition on August 12, 2014, relying on the 
older LCA expiring on October 1, 2014, and that it filed an online application for a new LCA prior 
to the older LCA's expiration and the end of the validity period for the prior visa petition. The 
Petitioner contends that it complied with the relevant statute and regulations. 
B. Analysis 
The regulations require that before filing a Form I-129 on behalf of an H-lB worker, a petitioner 
obtain a certified LCA from the U.S. Department of Labor (DOL) in the occupational specialty in 
(b)(6)
Matter of QSDM- , Inc. 
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-lB petitioner must submit evidence that an LCA 
has been certified by DOL when submitting the Form I-129. 1 
The regulation discussing filing requirements for applications and petitions at 8 C.F .R. § 103 .2(b )(1) 
states: 
Demonstrating eligibility. An applicant or petitioner must establish that he or 
she is eligible for the requested benefit at the time of filing the benefit request and 
must continue to be eligible through adjudication. Each benefit request must be 
properly completed and filed with all initial evidence required by applicable 
regulations and other USCIS instructions. Any evidence submitted in connection 
with a benefit request is incorporated into and considered part of the request. 
In this matter, the Petitioner initially filed an LCA, certified on August 24, 2011, with the instant 
visa petition which was filed on August 12, 2014. The period of employment certified in that LCA 
is October 1, 2011, to October 1, 2014. This LCA, however, does not support the instant Form I-129 
with the intended employment period beginning October 1, 2014, and extending to September 30, 
2017. In addition to the different intended employmelft periods requested, the LCA submitted with 
the instant petition identified the rate of pay as $59,093 for a level I position, for the occupational 
code and place of employment. However, the prevailing wage for the same area, wage level, and 
occupational code when this petition was filed is $67,746 per year? Thus, when the petition was 
filed, the Petitioner had not obtained a current, certified LCA which supported the petition. 
The Petitioner contends on appeal that the second LCA submitted in response to the Director's 
request for evidence establishes its compliance with the regulations is not persuasive. The regulation 
at 8 C.F .R. § 103 .2(b )(12) states, in pertinent part: 
[AJ benefit request shall be denied where evidence submitted in response to a 
request for initial evidence does not establish filing eligibility at the time the benefit 
request was filed. 
The LCA certified subsequent to the filing of the petition does not establish that the Petitioner had 
complied with the regulations when the petition was filed. The Form I -129 filing requirements 
imposed by regulation require that the Petitioner submit evidence of a current certified LCA at the 
1 
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the LCA absent a determination that 
the application is incomplete or obviously inaccurate . Section 212(n)(l )(G)(ii) of the Act. In contrast, USCIS must 
determine whether the attestations and content of an LCA correspond to and support the H-1 B visa petition, including 
the specific place of employment. 20 C.F.R. § 655.705(b ); see also 8 C.F.R. § 214.2(h)( 4)(i)(B). 
2 For more information , please see Foreign Labor Certification Data Center's Online Wage Library, on the Internet at 
http://www .tlcdatacenter.com/OesQuickResults.aspx?code= 17-2141 &area= &year= 15&source= I, (last visited 
Feb . 8, 2016. 
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Matter of QSDM-, Inc. 
time of filing. users regulations affirmatively require a petitioner to establish eligibility for the 
benefit it is seeking at the time the petition is filed. See 8 C.P.R. § 103.2(b)(1). A visa petition may 
not be approved based on speculation of future eligibility or after the Petitioner or Beneficiary 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 
(Reg'l Comm'r 1978). A petitioner may not make material changes to a petition in an effort to make 
a deficient petition conform to USCIS requirements. See In re Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm'r 1998). 
The Petitioner here did not comply with the filing requirement at 8 C.P.R. § 214.2(h)(4)(i)(B), and 
the appeal must be dismissed and the petition denied for this reason. 
III. SPECIALTY OCCUPATION 
We find that the evidence in the record of proceeding does not establish that the Petitioner met the 
filing requirement at 8 C.P.R. § 214.2(h)(4)(i)(B). As this basis for denial is dispositive of the 
Petitioner's eligibility for the benefit sought, we need not and will not address at this time the 
specialty occupation issue. 
IV. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofQSDM-, Inc., ID# 16044 (AAO Feb. 16, 2016) 
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