dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 24935876 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 24, 2023 
The Petitioner seeks to employ the Beneficiary under the H-lB 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-lB 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 Nebraska Service Center Director denied the Form 1-129, Petition for a Nonimmigrant Worker 
(petition), concluding that the Petitioner did not provide a certified U.S. Department of Labor (DOL) 
ETA Form 9035 & 9035E, Labor Condition Application for Nonimmigrant Workers (LCA). The 
matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate eligibility 
by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 25 l&N Dec. 369, 
375 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's Inc., 26 l&N 
Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal. 1 
Before filing a petition for H-lB classification, the regulation requires petitioners to obtain 
certification from the DOL that the petitioning organization has filed an LCA in the occupational 
specialty in which its foreign national personnel will be employed. 8 C.F.R. § 214.2(h)(4)(i)(B)(l) . 
A petitioner submits the LCA to DOL to demonstrate that it will pay an H-lB worker the higher of 
either the prevailing wage for the occupational classification in the area of employment, or the actual 
wage paid by the employer to other employees with similar duties, experience, and qualifications. 
Section 212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a). 
In the present case, the Petitioner filed the petition with U.S. Citizenship and Immigration Services 
(USCIS) on June 30, 2022, before DOL certified an LCA for the offered position. The Petitioner was 
provided a filing window for an H-lB petition between April 1, 2022, and June 30, 2022, based on 
1 We note the initial Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative submitted with 
the appeal was not properly completed and our office notified the Petitioner we would not recognize them as being 
represented in these proceedings. The Petitioner subsequently submitted a new Form G-28, but counsel did not date the 
attorney's signature portion of the newly provided form. As a result, we continue to consider the Petitioner to be 
self-represented. 
their H-1 B registration selection for the fiscal year 2023 H-1 B numerical cap projections. The Director 
issued a notice of intent to deny (NOID), in part seeking an LCA that DOL had certified on a date 
before the Petitioner filed the H-1 B petition. In response, the Petitioner provided an Le A it had filled 
out; however, it was not certified by DOL and the signature for the Petitioner's represented was on a 
date that was later than this petition's filing date. The Petitioner further explained difficulties it 
encountered when attempting to obtain a prevailing wage determination from DOL. Because the LCA 
was not certified, the Director denied the petition. 
The Petitioner has not provided an LCA that DOL certified prior to this H-lB petition's filing. That 
requirement is found in the regulation at 8 e.F.R. § 214.2(h)(4)(i)(B)(]) that states: "Before filing a 
petition for H-1 B 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." 
Even though we acknowledge the Petitioner's experiences with DOL, it has not identified an authority 
that would excuse their duty to provide a DOL-certified LCA to users in which the certification date 
predates the petition filing. Because the Petitioner has not established that it possesses and provided 
users with an LCA certified with a date that precedes this petition's filing date, we are dismissing 
the appeal. 
ORDER: The appeal is dismissed. 
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