dismissed H-1B Case: Real Estate Development

PUBLIC COPY 
U.S. Department of Ilomeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: ' WAC 05 00 1 5 1248 Office: CALIFORNIA SERVICE CENTER Date: 0 6 20@ 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l 5)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 1 Ol(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 05 001 51248 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Ofice (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is a real estate developer that seeks to employ the beneficiary as a cost estimator, and 
endeavors to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
101 (a)(l 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(l 5)(H)(i)(b). 
The director denied the petition, finding the petitioner failed to furnish a certified labor condition application 
(LCA). On appeal, counsel submits a timely brief and additional evidence. 
The record in this proceeding contains: (1) an uncertified LCA with the page link number of 748913; (2) the 
Form 1-129 petition and supporting documentation that CIS received on September 29, 2004; (3) the 
director's denial letter; (4) the Form I-290B and the brief; and (5) a document entitled "Activity Report," 
which shows a fax transmittal. The AAO reviewed the record in its entirety before issuing its decision. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) 
as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. !j 214.2(h)(4)(iii)(B), the petitioner shall submit the following with an H-1B petition 
involving a specialty occupation: 
1. A certification from the Secretary of Labor that the petitioner has filed a labor 
condition application with the Secretary, 
2. A statement that it will comply with the terms of the labor condition application for 
the duration of the alien's authorized period of stay, 
3. Evidence that the alien qualifies to perform services in the specialty occupation. 
Regulation requires that before filing a Form 1-129 petition on behalf of an H-1B worker, a petitioner obtain a 
certified LCA from the Department of Labor (DOL) in the occupational specialty in which the H-1B worker 
will be employed. See 8 C.F.R. 5 214.2(h)(4)(i)(B). The instructions that accompany the Form 1-129 petition 
also specify that an H-1B petitioner must document the filing of a labor certification application with the 
DOL when submitting the Form 1-129 petition. 
Counsel contends on appeal that the director violated 8 C.F.R. 3 103.2(b)(8) by failing to request further 
evidence before denying the petition. The cited regulation requires the director to request additional evidence 
in instances "where there is no evidence of ineligibility, and initial evidence or eligibility information is 
WAC 05 001 5 1248 
Page 3 
missing." Id. The director is not required to issue a request for further information in every potentially 
deniable case. If the director determines that the initial evidence supports a decision of denial, the cited 
regulation does not require solicitation of further documentation. Furthermore, even if the director had 
committed a procedural error by failing to solicit further evidence, it is not clear what remedy would be 
appropriate beyond the appeal process itself. The petitioner has an opportunity to supplement the record on 
appeal, and therefore it would serve no useful purpose to remand the case simply to afford the petitioner the 
opportunity to supplement the record with new evidence. 
On appeal, counsel contends that CIS will accept H-1B petitions for filing with proof that the LCA was filed with 
the Department of Labor (DOL) under existing CIS practice, and he submits an excerpt from the H-IB Handbook 
written by Austin T. Fragomen, Jr. and Steven C. Bell to support his contention. Counsel's statement and the 
supporting evidence is not persuasive, however, in light of the regulations relating to the H-1B petition and the 
LCA. 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. 5 103.2(b)(12). The regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(B)(l) 
provides that the petitioner shall submit with the H-1B petition a certification from the Secretary of Labor that 
it has filed an LCA. Based on the regulations, it is incumbent upon the petitioner to file the proper documents 
in order to establish eligibility for a benefit. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at the future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 
248 (Reg. Comm. 1978). 
The LCA contained in the record is uncertified. Although counsel claims that an LCA was certified by the 
DOL prior to the September 29, 2004 filing date of the H-1B petition, no such LCA was submitted on appeal. 
Thus, based on the evidence of record, the petitioner has not complied with the regulations at 
8 C.F.R. 5 214.2(h)(4)(iii)(B)(l), 8 C.F.R. 5 214.2(h)j4)(i)(B), and 8 C.F.R. 5 103.2(b)(12). For this reason, the 
petition will be denied. 
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 not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.