dismissed H-1B Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re : 22737970 
Appeal of California Service Center Decision 
Form I-129, Petition forNonimmigrant Worker (H-1B) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 13, 2022 
The Petitioner seeks to employ the Beneficiary under the H-1B nonimmigrant classification for specialty 
occupations. See Immigration and Nationality Act (the Act) section 101(a)(15)(HXi)(b) , 8 U .S.C. 
§ 1101 (a)(15XH)(iXb). 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 California Service Center Director denied the Form I-129, Petition for a Nonimmigrant Worker , 
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 ofChawathe, 25 I&N Dec. 369,375 
(AAO 2010) . We review the questions in this matter de nova . Matter of Christo 's Inc., 26 I&N Dec. 
537,537 n.2 (AAO 2015) . Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Before filing a petition for H-1B 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-1 B 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 .731(a). 
II. ANALYSIS 
In the present case, the Petitioner filed the petition with USCIS in December 2021 before DOL 
certified an LCA for the offered position. The Director issued a request for evidence, in part seeking 
an LCA that DOL had certified on a date before the Petitioner filed the H-1B petition. In response, 
the Petitioner provided an LCA it had filled out; however, it was not certified by DOL. Because the 
LCA was not certified, the Director denied the petition in January 2022. In February 2022, the 
Petitioner filed an LCA with DOL, and that agency certified the LCA on February 11, 2022. 
Accompanying this appeal, the Petitioner submits the February 2022, DOL-certified LCA. 
While we recognize the Petitioner's efforts to comply with the H-1 B requirements, it 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 C.F.R. § 214.2(h)(4)(i)(B)(l) 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. 
Because the Petitioner has not established that it possesses 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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