dismissed H-1B Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-T-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 2, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a software engineering and consulting company, seeks to temporarily employ the 
Beneficiary as a "senior consultant engineer" under the H-1B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(H)(i)(b), 
8 U.S.C. § 110l(a)(15)(H)(i)(b). The H-1B program allows a U.S. employer to temporarily employ a 
qualified foreign worker in a position that requires both (a) the theoretical and practical application 
of a body of highly specialized knowledge and (b) the attainment of a bachelor's or higher degree in 
the specific specialty (or its equivalent) as a minimum prerequisite for entry into the position. 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did 
not submit labor condition applications (LCA) for all locations of employment that had been 
certified prior to the filing of this petition. 
On appeal, the Petitioner submits a brief and contends that the petition should be approved. 
Upon de novo review, we will dismiss the appeal.1 
I. LCA 
A. Legal Framework 
Section 101(a)(l5)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[W]ho is coming temporarily to the United States to perform services ... in a 
specialty occupation described in section 214(i)( 1) ... , who meets the requirements 
for the occupation specified in section 214(i)(2) ... , and with respect to whom the 
Secretary of Labor determines and certifies to the [Secretary of Homeland Security] 
1 We follow the preponderance ofthe evidence standard as specified in Matter ofChawathe, 25 I&N Dec. 369, 375-76 
(AAO 2010). 
Matter of A-T-, Inc. 
that the intending employer has filed with the Secretary [of Labor] [a labor condition 
application] .... 
The regulations require that before filing a Form 1-129, Petition for a Nonimmigrant Worker, 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. 
§ 214.2(h)(4)(i)(B), (iii)(B)(l). The instructions that accompany the Form 1-129 also mandate that 
an H-1B petition be accompanied by evidence that DOL has certified an LCA. 
2 
Additionally, the regulation at 8 C.F.R. § 214.2(h)(2)(i)(B) provides as follows: 
Service or training in more than one location. A petition that requires services to be 
performed or training to be received in more than one location must include an 
itinerary with the dates and locations of the services or training and must be filed with 
[U.S. Citizenship and Immigration Services (USCIS)] as provided in the form 
instructions. The address that the petitioner specifies as its location on the Form 
I -129 shall be where the petitioner is located for purposes of this paragraph. 
The regulation at 8 C.F .R. § 214.2(h)(2)(i)(E) states: 
Amended or new petition. The petitioner shall file an amended or new petition, with 
fee, with the Service Center where the original petition was filed to reflect any 
material changes in the terms and conditions of employment or training or the alien's 
eligibility as specified in the original approved petition. An amended or new H-1 C, 
H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department 
of Labor determination. In the case of an H-1B petition, this requirement includes a 
new labor condition application. 
B. Analysis 
Upon review of the record, we find that the Petitioner did not submit LCAs for all work locations at 
the time of filing this petition. 
In the support letter filed with the Form 1-129, the Petitioner indicated that the Beneficiary will work 
at its office location in Texas, and also work for an end-client in Alaska on a rotational basis.3 When 
the Petitioner filed the H -1 B petition, it submitted an LCA certified for employment at the Texas 
location, but that LCA was not certified for employment at the Alaska work location. Though the 
2 8 C.F.R. § 103.2(a)(l) states, in pertinent part: "Every benefit request or other document submitted to DHS must be 
executed and filed in accordance with the form instructions . . . and such instructions are incorporated into the 
regulations requiring its submission." 
3 The petitioner did not claim, and we do not find, that this work location qualifies as "non-worksite" location, as 
described at 20 C.F.R. § 655.715, or short-term placement or assignment, as described at 20 C.F.R. § 655.735. 
2 
Matter of A-T-, Inc. 
Petitioner submitted an LCA certified for the Alaska work location in response to the Director's 
request for additional evidence (RFE), the LCA was certified by DOL after the petition was filed.4 
I 
The Petitioner does not contest the fact that the second LCA was certified after the petition's filing. 
Instead, the Petitioner contends that we should approve the petition notwithstanding that deficiency. 
The Petitioner points first to 8 C.F .R. § 214.2(h)( 4 )(i)(B)( 1), which states 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 Petitioner contends that it satisfied this regulation because it "did obtain certification from 
[DOL] that it had filed [an LCA]." However, the Petitioner does not identify what other 
"certification" it received from DOL other than the LCA's certification. While the DOL email is 
acknowledged, it references no alternate type of "certification." As indicated above, the LCA was 
"certified" 12 days after the petition was filed. 
The Petitioner further claims there is "no provision of law which expressly requires that labor 
condition applications for every worksite that will be engaged by an employee in an H-1 B status at 
any point in the future be certified prior to filing of an H-lB petition." However, 20 C.F.R. 
§ 655.705(b) requires that USCIS ensure that an H-lB petition is filed with a "DOL-certified LCA 
attached" that actually supports and corresponds with the petition.5 Here, while the Petitioner 
submitted an LCA for the Texas location, that LCA did not support the second work location in 
Alaska. 
To promote the United States worker protection goals of a statutory and regulatory scheme that 
allocates responsibilities sequentially between DOL and USCIS, an employer must file an LCA and 
receive certification from DOL before an H-lB petition may be submitted to USCIS. 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b)(2).6 If an employer does not submit the LCA to 
4 The Petitioner filed the H-1 B petition on April I, 2016. The LCA certified for the Alaska work location was certified 
onApril13,2016. 
5 
While DOL is the agency that certifies LCA applications before they are submitted to USCIS, DOL regulations note 
that the Department of Homeland Security (DHS) (i.e., its immigration benefits branch, USCIS) is the department 
responsible for determining whether, the content of an LCA filed for a particular Form 1-129 actually supports that 
petition. 20 C.F.R. § 655.705(b) (emphasis added) states, in pertinent part: 
For H-18 visas ... DHS accepts the employer's petition (DHS Form 1-129) with the DOL-certified 
LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which 
corresponds with the petition, whether the occupation named in the [LCA] is a specialty occupation or ' 
whether the individual is a fashion model of distinguished merit and ability, and whether the 
qualifications of the nonimmigrant meet the statutory requirements for H-1 B visa classification. 
6 
Upon receiving DOL's certification, the employer then submits the certified LCA to USCIS with an H-1 B petition on 
behalf of a specific worker. 8 C.F.R. § 214.2(h)(2)(i)(A), (2)(i)(E), (4)(iii)(B)(\). DOL reviews LCAs "for 
3 
Matter of A-T-, Inc. 
USCIS in support of a new or amended H-B petition, the process is incomplete and the LCA is not 
certified to the Secretary of Homeland Security. See section 101(a)(15)(H)(i)(b) of the Act; 8 C.F.R. 
§ 214.2(h)(4)(i)(B)(l); 20 C.F.R. · § 655.700(b); see also Labor Condition Applications and 
Requirements for Employers Using Aliens on H-1B Visas in Specialty Occupations and as Fashion 
Models, 57 Fed. Reg. 1316, 1318 (Jan. 13, 1992) (Supplementary Information) (discussing filing 
sequence); Labor Condition Applications and Requirements for Employers Using Aliens on H-1B 
Visas in Specialty Occupations, 56 Fed. Reg. 37,175, 37,177 (Aug. 5, 1991) (Supplementary 
Information). 
Consequently, a necessary condition for approval of an H-1 B visa petition is an LCA, certified on or 
before the filing date of the petition, with information, accurate as of the date of the petition's filing, 
as to where the Beneficiary would actually be employed. Furthermore, the petition must list the 
locations where the Beneficiary would 'be employed and be accompanied by an itinerary with the 
dates the Beneficiary will provide services at each location. Both conditions were not satisfied in 
this case. 
In addition, as 8 C.F.R. § 103.2(b)(l) requires eligibility to be established at the time of filing, it is 
factually impossible for "an LCA certified by DOL after the filing of an initial H-1B petition to 
establish eligibility at the time the initial petition was filed. Therefore, in order for a petitioner to 
comply with 8 C.F.R. § 103.2(b)(l) and USCIS to perform its regulatory duties under 20 C.F.R. 
§ 655.705(b), a petitioner must file an amended or new petition, with fee, where a beneficiary's job 
location changes or is not correctly reflected such that a new LCA is required to be filed with DOL. 
Here, the Petitioner's attempt to amend the petition by an LCA certified after the filing of the 
petition is ineffective. Again, a petitioner must establish eligibility at the time of filing a 
nonimmigrant visa petition. 8 C.F .R. § 103 .2(b )(1 ). A visa petition may not be approved at a 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'l Comm'r 1978). 
Moreover, the Petitioner contends that it satisfied 20 C.F.R. § 655.730(c)(2), which permits a 
petitioning employer to utilize more than one LCA form when there are multiple worksites. 
However, the issue here is not that the Petitioner utilized two LCAs. The issue is that the second 
LCA was certified subsequent to the filing of the petition. 
Finally, the Petitioner highlights the fact that although the second LCA was certified subsequent to 
the petition's filing date, it was certified prior to the employment start date. However, the Petitioner 
identifies no authority for us to waive the legal authorities cited above. 
completeness and obvious inaccuracies" and will certifY the LCA absent a determination that the application is 
incomplete or obviously inaccurate. Section 212(n)(I)(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) (2014); see also 8 C.F.R. § 214.2(h)(4)(i)(B). 
4 
Matter of A-T-, Inc. 
The record does not establish that, at the time of filing, the Petitioner had obtained a certified LCA in 
the claimed occupational specialty for employment during the intended period of employment at all 
intended work locations. As indicated by the Director, the Petitioner did not comply with the filing 
requirements at 8 C.F .R. § 214.2(h)( 4 )(i)(B). 
II. SIGNATURE 
Setting the Director's basis for denial aside, we observe an additional issue that mandates denial of 
this petition. Specifically, an authorized official of the Petitioner has not signed and dated the 
second LCA's Declaration of Employer (section K), as that section requires (1) the Petitioner's 
attestation that the statements in the LCA are true and correct, that the Petitioner "agree[ s] to comply 
with the Labor Condition Statements as set forth in the Labor condition application - General 
Instructions Form ETA 9035CP and with the Department of Labor regulations (20 CFR part 655, 
Subparts H and I)," and (2) the Petitioner's agreement to make the LCA, its supporting 
documentation, and other records available to the DOL. 
On the first page of the LCA, the Petitioner affirmatively checked the box confirming that that it 
"understood and agreed" to take the listed actions within the specified times and circumstances. The 
listed actions are the following: 
• Print and sign a hardcopy of the electronically filed and certified LCA; 
• Maintain a signed hardcopy of this LCA in its public access files; 
• Submit a signed hardcopy of the LCA to the United States Citizenship and 
Immigration Services (USCIS) in support of the I-129, on the date of submission 
ofthe 1-129; and 
• Provide a signed hardcopy of this LCA to each H-1B nonimmigrant who is 
employed pursuant to the LCA. 
In addition, in the section "Signature Notification and Complaints" (Section N, page 5), the 
following notice is provided: 
The signature and dates signed on this form will not be filled out when electronically 
submitting to the Department of Labor for processing, but MUST be completed when 
submitted non-electronically. If the application is submitted electronically, any 
resulting certification MUST be signed immediately upon receipt from the 
Department of Labor before it can be submitted to USC IS for further processing. 
DOL and DHS regulations require that a beneficiary's employer or a representative ,of the employer 
submit a copy of the signed, certified ETA Form 9035/9035E to USCIS in support of the Form 
I-129. 
5 
Matter of A-T-, Inc. 
The DOL regulation at 20 C.F.R. § 655.705(c) states, in pertinent part, the following: 
(1) The employer shall submit a completed labor condition application (LCA) on 
Form ETA 9035E or Form ETA 9035 in the manner prescribed in § 655.720. 
By completing and submitting the LCA, and by signing the LCA, the 
employer makes certain representations and agrees to several attestations 
regarding its responsibilities, including the wages, working conditions, and 
benefits to be provided to the H-lB nonimmigrants (8 U.S.C. 1182(n)(l)); 
these attestations are specifically identified and incorporated by reference in 
the LCA, as well as being set forth in full on Form ETA 9035CP . . . . The 
employer reaffirms its acceptance of all of the attestation obligations by 
submitting the LCA to [USCIS] in support of the Petition for 
Nonimmigrant Worker, Form I-129, for an H-1B nonimmigrant. See 8 CFR 
214.2(h)(4)(iii)(B)(2), which specifies the employer will comply with the 
terms of the LCA for the duration of the H-1B nonimmigrant's authorized 
period of stay. 
(3) The employer then may submit a copy of the certified, signed LCA to DHS 
with a completed petition (Form I-129) requesting H-1B classification. 
Furthermore, the regulation at 20 C.F.R. § 655.730(c), in pertinent part, states the following: 
(2) Undertaking of the Employer. In submitting the LCA, and by affixing the 
signature of the employer or its authorized agent or representative on Form 
ETA 9035E or Form ETA 9035, the employer (or its authorized agent or 
representative on behalf ofthe employer) attests the statements in the LCA are 
true and promises to comply with the labor condition statements (attestations) 
specifically identified in Forms ETA 9035E and ETA 9035, as well as set 
forth in full in the Form ETA 9035CP .... 
(3) Signed Originals, Public Access, and Use a,[ Certified LCAs .... For H-1B 
visas only, the employer must submit a copy of the signed, certified Form 
ETA 9035 or ETA 9035E to [USCIS] in support of the Form I-129 petition, 
thereby reaffirming the employer's acceptance of all of the attestation 
obligations in accordance with 8 CFR 214.2(h)( 4)(iii)(B)(2). 
As noted in the DOL regulations cited above, 8 C.F.R. § 214.2(h)(4)(iii)(B)(2) states that the 
Petitioner will provide "[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." 
6 
Matter of A-T-, Inc. 
The regulation at 8 C.F.R. § 1 03.2(a)(2), which concerns the requirement of a signature on 
applications and petitions, states the following: 
An applicant or petitioner must sign his or her benefit request. However, a parent or 
legal guardian may sign for a person who is less than 14 years old. A legal guardian 
may sign for a mentally incompetent person. By signing the benefit request, the 
applicant or petitioner, or parent or guardian certifies under penalty of perjury that the 
benefit request, and all evidence submitted with it, either at the time of filing or 
thereafter, is true and correct. Unless otherwise specified in this chapter, an 
acceptable signature on a benefit request that is being filed with the USCIS is one that 
is either handwritten or, for benefit requests filed electronically as permitted by the 
instructions to the form, in electronic format. 
Based on DOL and DHS regulations, the LCA that is filed with USCIS in support of an H-lB 
petition must be certified by DOL and signed by the Beneficiary's employer or a representative of 
the employer. Here, the Petitioner filed a copy of the certified, but unsigned, ETA Form 
9035/9035E for the end-client's location. Thus, the Petitioner did not comply with the regulatory 
requirements for H-1 B visa classification as set forth at 8 C.F .R. § § 103 .2( a)(2), 
214.2(h)(4)(iii)(B)(2), and 20 C.F.R. § 655.730(c)(2)-(3). Accordingly, the petition must be denied 
on this basis as well. 
III. CONCLUSION 
The Petitioner did not establish eligibility for the benefit requested. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-T-, Inc., ID# 397096 (AAO Aug. 2, 2017)