dismissed H-1B Case: Systems Analyst

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: SRC 04 250 50783 Office: TEXAS SERVICE CENTER Date: JUL 3 1 
IN RE: Petitioner: 
Beneficiary: 
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. 8 1 lOl(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. 
Bdd~w 
Robert P. Wiemann, 
Administrative ~ppeals.ce 
SRC 04 250 50783 
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 is a refiner and marketer of petroleum products that seeks to employ the beneficiary as a 
systems analyst. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker 
in a specialty occupation pursuant to section 10 1 (a)(l S)(H)(i)(b) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1 lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to submit a certified labor 
condition application (LCA) with the petition. 
The regulation at 8 C.F.R. $ 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 instant petition was received at the service center on September 24, 2004, but it did not contain a 
certified LCA. The petitioner submitted a certified LCA, certified on October 7, 2004, in response to a 
request for evidence requesting the same. 
The regulation at 8 C.F.R. 9 214.2(h)(4)(iii)(B)(l) states that, when filing an H-1B petition, the petitioner 
must submit with the petition "[a] certification from 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 petitioner's submission of a certified 
LCA certified subsequent to the filing of the petition satisfies neither 8 C.F.R. $ 214.2(h)(4)(i)(B)(l) nor 
8 C.F.R. $ 214.2(h)(4)(iii)(B)(l). 
Further, Citizenship and Immigration Services (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. $ 103.2(b)(12). 
On appeal, counsel states the following: 
Good faith efforts to obtain the necessary approval in advance of filing the H-1B petition 
were made. The inability to do so was beyond the control of the petitioner as it was due 
to a failure or shortcoming of the DOL's own system. . . . 
Given the fact that good faith efforts to comply with the above mentioned requirements 
have been demonstrated, and the time constraints which applied to the availability of 
H-1B visas, we would respectfully request that the Service exercise its discretion in a 
manner which will permit the [bleneficiary to work in H-1B status. 
However, the regulations contain no provision for discretionary relief fi-om the LCA requirements. 
SRC 04 250 50783 
Page 3 
The petitioner's failure to procure a certified LCA prior to filing the H-1B petition precludes its approval. 
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. 
 1361. The petitioner has not sustained that burden. 
ORDER: 
 The appeal is dismissed. The petition is denied.