dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 7, 2024 In Re: 32749329 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB nonimmigrant 
classification for specialty occupations. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(H)(i)(b), 8 U.S.C. § 110l(a)(l5)(H)(i)(b) . The H-lB program allows a U.S. employer to 
temporarily employ a qualified nonimmigrant 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that it met the requirements related to the submission of a labor condition application (LCA) 
certified by the U.S. Department of Labor (DOL) to support the H-lB petition. Specifically, the 
Petitioner submitted a certified LCA which contains a federal employer identification number (FEIN) 
associated with an organization other than the Petitioner. In response to the Director's request for 
evidence (RFE), the Petitioner submitted an LCA which does contain the Petitioner's FEIN, but which 
was certified by DOL after the filing date of the petition. Because the regulations require a petitioner 
to obtain a certified LCA prior to filing an H-lB petition, the Director determined that the Petitioner 
did not meet the LCA requirements . The Director also determined that the Petitioner did not establish 
eligibility at the time the benefit request was filed. The matter is now before us on appeal pursuant to 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
Before filing a petition for H-lB classification, the regulations require a petitioner to obtain 
certification from DOL that the organization has filed an LCA in the occupational specialty in which 
the beneficiary will be employed. 8 C.F.R. § 214.2(h)(4)(i)(B)(J). Additionally, 8 C.F.R. 
§ 214.2(h)(4)(iii)(B)(J) requires that the petitioner submit the certified LCA with the H-lB petition. 
Finally, the regulation at 8 C.F.R. § 103.2(b) requires that a petitioner demonstrate eligibility for the 
benefit sought at the time of filing. 
On appeal, the Petitioner acknowledges the FEIN is incorrect on the initially submitted LCA but 
asserts that the error is not material and requests that the new, correct LCA be accepted as timely filed. 
The Petitioner asserts that the statute and regulations only require certain information to be certified 
in the LCA and that the FEIN is not one of the items that must be certified. The Petitioner contends 
that this argument is supported by the fact that DOL regulations do not require a new LCA to be 
certified where a change in ownership or corporate structure results in a change in the employer's 
FEIN. The Petitioner also points to a prior U.S. Citizenship and Immigration Services (USCIS) policy 
memorandum regarding the temporary deferment of the LCA requirement in support of the claim that 
we may excuse the regulatory LCA requirements. 
We are not persuaded by the Petitioner's claim that the FEIN is not material to the LCA because it 
does not relate to the number of workers sought, the occupational classification, the wage rate, or the 
employment conditions certified in the LCA-information which is required by the statute to be 
certified in the LCA. See section 212(n)(l)(D) of the Act, 8 U.S.C. § 1182(n)(l)(D). Regardless of 
whether the FEIN relates to the information specifically enumerated in the statute, the FEIN goes 
directly to the identity of the employer and therefore the identity of the petitioner making the 
statements certified in the LCA. The petitioner's FEIN is required and used throughout DOL's and 
USCIS' process in certifying LC As and adjudicating H-1 B petitions. 1 
We are also not persuaded by the Petitioner's argument that the FEIN is immaterial because DOL's 
regulations do not require obtaining a new LCA after a change in corporate structure or identity that 
results in H-lB workers being transferred from a predecessor to a new employing entity, including 
when there is a change in the employing entity's FEIN. See 20 C.F.R. § 655.730(e)(l). Implicit in 
the regulation is the assumption that the certified LCA contained the correct FEIN for the employing 
entity at the time the H-lB petition was filed, which is not the case here. Moreover, the regulation 
also states that notwithstanding this provision: 
[T]he new employing entity must file new LCA(s) and H-1 B petition( s) when it hires 
any new H-lB nonimmigrant(s) or seeks extension(s) ofH-lB status for existing H-lB 
nonimmigrant(s). In other words, the new employing entity may not utilize the 
predecessor entity's LCA(s) to support the hiring or extension of any H-1 B 
nonimmigrant after the change in corporate structure. 
20 C.F.R. § 655.730(e)(2). The regulation therefore prohibits a petitioning employer from filing an 
H-lB petition using a certified LCA which does not correctly identify the employing entity. Here, the 
FEIN contained in the certified LCA never correctly identified an employing entity, but even if it did 
the regulations require that, when filing a new H-lB petition, the employing entity must correctly 
identity itself on the certified LCA. The Petitioner has not done so here. The regulation does not 
contemplate an employer being permitted to file an H-lB petition with a certified LCA that contains 
its prior FEIN, let alone a wholly inaccurate FEIN, as the Petitioner seeks to do here. 
1 For example, the FEIN is used as a primary identifier of the petitioning entity in the H-1 B electronic registration process. 
Additionally, DOL requires an employer to possess and enter a FEIN to file an LCA. See DOL Labor Condition 
Application for H-IB, H-IBI, and E-3 Nonimmigrant Workers, Form ETA-9035CP - General Instructions for the 9035 
& 9035E. Available at https://flag.dol.gov/sites/default/files/2019-09/ETA _Form _9035CP.pdf. 
2 
Finally, the users policy memorandum to which the Petitioner cites is not applicable here and does 
not support the Petitioner's claims. See Memorandum from Donald Neufeld, Acting Assoc. Dir. for 
Dom. Ops., users, Temporary Acceptance ofH-JB Petitions Without Department ofLabor (DOL)­
Cert[fied Labor Condition Applications (LCAs) (Nov. 5, 2009), 
http://www.uscis.gov/sites/default/files/document/memos/h-ib-petitions-temporary-acceptance.pdf. 
This memorandum temporarily permitted users to accept for processing H-1B petitions that did not 
contain certified LeAs provided that they contained evidence of filing of a pending LeA. This policy 
was temporarily put in effect due to DO L's implementation of a new system that resulted in increased 
processing times for LeAs. The Petitioner contends that this is evidence that we have the "flexibility" 
to accept the Petitioner's H-1B petition without an accurate, certified LCA. However, the 
circumstances present in the memorandum are not present here, and the Petitioner has not provided 
any similar guidance or memorandum that would allow us to temporarily waive the LeA requirements 
in this instance. This memorandum provided specific guidance for adjudicators in a specific 
circumstance that is not applicable here, and the existence of this guidance is not evidence of broad 
permission to simply waive regulatory requirements as we see fit. We lack the authority to waive or 
disregard any of the Act's requirements, as implemented by regulation. See United States v. Nixon, 
418 U.S. 683,695 (1974) ("So long as this regulation is extant it has the force oflaw."). 
The regulations require a petitioner to obtain a certified LeA prior to submitting an H-1 B petition and 
to include the certified LeA in its H-1B filing. See 8 e.F.R. § 214.2(h)(4)(i)(B)(l); (4)(iii)(B)(l). As 
the record reflects, the Petitioner did not obtain and submit an accurate, certified LeA with the initial 
petition. The Petitioner's claim that the error in the LeA is not material, or that we may excuse the 
LeA requirements, are not persuasive. Therefore, the Petitioner has not established that it has 
complied with the relevant regulations, and the petition must be denied. 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. See section 291 of the 
Act. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
3