dismissed H-1B Case: Systems Analysis

identifLing data deleted to 
prevent clearly unwarranted 
invasion of pnsonal privacy 
PUBLIC COPY 
U.S. Department of Ilomeland Security 
20 Mass Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 05 045 50646 Office: CALIFORNIA SERVICE CENTER Date: AUG 0 2 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuarit to Section 10 1 (a)(l S)(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 05 045 50646 
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 be 
denied. 
The petitioner provides background screening services. It seeks to employ the beneficiary as a systems 
analyst, and endeavors to classify him as a nonimmigrant worker in a specialty occupation pursuant to section 
10 1 (a)(] 5)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(] 5)(H)(i)(b). 
The director denied the petition, finding the petitioner failed to furnish a certified labor condition application 
(LCA). Counsel submits a timely appeal. 
The record in this proceeding contains: (1) the uncertified LCA with the page link number of 045997; (2) the 
Form 1-129 petition and supporting documentation that CIS received on December 3, 2004; (3) the LCA that 
was certified by the Department of Labor (DOL) on January 19, 2005; (4) the director's denial letter; and (5) 
the Form I-290B and counsel's letter. The AAO reviewed the record in its entirety before issuing its decision. 
Section 214(i)(l) of the Act, 8 U.S.C. $ 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. 5 214.2(h)(4)(iii)(B), the petitioner shall submit the following with an H-1B petition 
involving a specialty occupation: 
1. A certification fiom 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. 
On appeal, counsel contends that the LCA had been filed before the filing of the H-1B petition; however, when 
the DOL changed its LCA form the petitioner received a request for evidence fiom the director that sought the 
newest version of the LCA form. Counsel asserts that as CIS allows for filing the LCA and submitting the 1-129 
petition with proof of filing the LCA, then the petitioner should be allowed to file a new LCA in response to the 
request for evidence. 
The AAO finds counsel's statement is not persuasive in light of the regulations relating to the H-IB petition and 
the LCA. CIS regulations affirmatively require a petitioner to establish eligibility for the benefit it is seeking 
WAC 05 045 50646 
Page 3 
at the time the petition is filed. See 8 C.F.R. $103.2(b)(12). The regulation at 
8 C.F.R. 5 214.2(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 submitted with the Form 1-129 petition is uncertified. The LCA submitted in response to the request 
for evidence was certified by the DOL subsequent to the December 3, 2004 filing date of the H-1B petition. 
Thus, based on the evidence of record, the petitioner has not complied with the regulations at 
8 C.F.R. 5 214.2(hX4)(iii)(B)(l) 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.