dismissed H-1B Case: Software Development

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PUBLICcopy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.. S.Citizenship
and Immigration
Services
FILE: WAC 06 11450681 Office: CALIFORNIA SERVICE CENTER Date: ~p 10 Z007
INRE: 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)(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.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 06 114 50681
Page 2
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.
The petitioner is a software development and network solutions firm. It seeks to employ the beneficiary as a
programmer analyst and endeavors 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)(l5)(H)(i)(b).
The director denied the petition because a certified labor condition application (LCA) for Pleasanton, CA was not
obtained prior to the filing of the Form 1-129 petition. On appeal, the petitioner states that an LCA was filed in
support of the Form 1-129 listing Los Angeles, CA as the work location through the petitioner's inadvertence.
The petitioner submitted an LCA for Pleasanton, CA, the correct work location for the beneficiary of this petition,
in response to the director's request for evidence.
The issue to be discussed in this proceeding is whether a certified LCA was obtained prior to the filing of the
Form 1-129 petition.
Section 101(a)(l5)(H)(i)(b) of the Act, 8 U.S.C. § 110I(a)(15)(H)(i)(b), provides, in part, for the
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform
services in a specialty occupation.
Section 101(a)(15)(H) of the Act defines an H-IB noniinmigrant as:
[A]n alien who is coming temporarily to the United States to perform services ... in a specialty
occupation . . . and with respect to whom the Secretary of Labor determines and certifies to the
Attorney General that the intending employer has filed with the Secretary of Labor an
application under section 212(a)(n)(l) ....
Title 8, Code of Federal Regulations, part 2l4.2(h)(4)(iii)(B)(l) provides that the petitioner shall submit with an
H-l B petition "a certification from the Secretary of Labor that the petitioner has filed a labor condition
application with the Secretary." The regulations further provide:
Before filing a petition for H-IB 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.
8 C.F.R. § 2l4.2(h)(4)(i)(B)(l).
Pursuant to 8 C.F.R. § 103.2(b)(12), "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 Form 1-129 petition was filed February 22, 2006. A properly certified LCA for
the beneficiary's intended work location was not submitted at the time of filing. The director then submitted
a request for evidence (RFE) requesting, in part, that the petitioner submit a properly certified LCA, for
Pleasanton, CA (the intended work location for the beneficiary). In response to that request the petitioner
submitted an LCA certified on May 28, 2006, subsequent to the filing of the initial petition. The petition
must, accordingly, be denied because certification was not obtained prior to the filing of the H-IB petition.
WAC 06 11450681
Page 3
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 failed to sustain that burden.
ORDER: The appeal is dismissed. The petition is denied.