dismissed H-1B Case: Meteorology

identifying data delded to 
prevent clearly unwarranted 
m~a~t~n of p~sonal privwy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 04 164 5 1524 Office: TEXAS SERVICE CENTER Date: JUL 1 7 2UOb 
IN RE: 
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. 4 1 10 l(a)(lS)(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 04 164 5 1524 
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 bedenied. 
The petitioner is an international real estate services firm that also offers web-based radar meteorology 
services. It seeks to continue its employment of the beneficiary as a weather information specialist. The 
petitioner, therefore, endeavors to extend the classification of the beneficiary as a nonirnrnigrant worker in a 
specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1 101 (a)(l5)(H)(i)(b). 
The instant petition was received at the service center on May 2 1, 2004, but it did not contain a certified 
labor condition application (LCA). As such, the director requested a certified LCA in a July 24, 2004 
request for evidence. In response, the petitioner submitted an LCA that had been certified on August 4, 
2004, and the director denied the petition on the basis of the petitioner's failure to obtain a certified LCA 
prior to filing the petition. 
The regulation at 8 C.F.R. 5 214.2(h)(4)(i)(B)(l) stipulates the following: 
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. 
The regulation at 8 C.F.R. 8 214.2(h)(4)(iii)(B)(l) states that, when filing an H-1B petition, the petitioner 
must submit with the petition "[a] certification fi-om the Secretary of Labor that the petitioner has filed a 
labor condition application with the Secretary." Thus, in order for a petition to be approvable, the LCA 
must have been certified before the H-1B petition was filed. The submission of a certified LCA certified 
subsequent to the filing of the petition satisfies neither 8 C.F.R. 9 214.2(h)(4)(i)(B)(I) nor 
8 C.F.R. 5 214,2(h)(4)(iii)(B)(l). CIS regulations affirmatively require a petitioner to establish eligibility 
for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. tj 103.2(b)(12). 
On appeal, the petitioner states that it provided the information requested by the director, and submits 
another copy of the late-filed and certified LCA. However, this does not address the basis of the denial. 
The petition was denied because the LCA was certified subsequent to the date the petition was filed, not 
because the director had failed to receive the petitioner's August 9,2004 submission. 
The regulations contain no provision for discretionary relief from the LCA requirements. The petitioner's 
failure to procure a certified LCA prior to filing the H-1B petition precludes its approval, and 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. 9 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.