sustained EB-3 Case: Computer Science

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
EAC 01 149 51937 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3) 
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, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, revoked approval of the visa petition that is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The petition will 
be approved. 
The petitioner is a computer consulting and engineering firm. It seeks to employ the beneficiary permanently 
in the United States as a systems analyst. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor accompanied the petition. 
The director revoked approval of the instant visa petition finding that the petitioner had failed to respond to a 
notice of intent to revoke that approval. The notice of intent to revoke determined that the evidence in this case 
indicates that the petitioner and the beneficiary provided fraudulent information to CIS. Specifically, the acting 
director found that the beneficiary did not work for the petitioner at the wage stated in the Form 1-140 
petition, thus indicating that the petitioner had not intended, when it filed the petition in this matter, to employ 
the beneficiary pursuant to the terms of the approved labor certification in this case after the beneficiary 
adjusted status to legal permanent resident. 
The record shows that the appeal was properly and timely filed and makes a specific allegation of error in law 
or fact. The procedural history of this case is documented in the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3)(A)(ii), 
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
Section 203(b)(3)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1153(b)(3)(A)(iii), 
provides for granting preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or 
seasonal nature for which qualified workers are unavailable. 
The Form ETA 750 states that the salary for the proffered position is $54,000 per year. The beneficiary 
signed the Form ETA 750B on October 8, 1999. On that date the beneficiary stated that he had been working 
for the petitioner since July 1999. 
The record contains (1) 2000, 2001, and 2002 Form W-2 Wage and Tax Statements, (2) earnings statements 
the petitioner issued to the beneficiary during 2000, (3) an earnings statement the petitioner issued to the 
beneficiary for December 2002, (4) a photocopy of a cancelled 2002 paycheck and check stub, and (5) 
earnings statements another employer issued to the beneficiary during 2005 and 2006. 
The W-2 forms submitted show that the petitioner paid the beneficiary $42,688, $25,509, and $41,673 during 
2000,200 1, and 2002, respectively.' 
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1 
The record reflects that the petitioner employed the beneficiary in an H-1B capacity prior to filing the Form 
1-140 petition on his behalf. As an H-1B employer the petitioner was required to pay the beneficiary the 
prevailing wage pursuant to the terms of the H-1B visa. Whether the beneficiary was in the United States 
Page 3 
The 2000 earnings statements submitted are for the months of June, July, and August 2000. During those 
months the petitioner paid the beneficiary gross pay of $5,667 per month. The most recent of those pay 
statements shows year-to-date wages of $42,668 through the end of August 2000. 
The December 2002 earnings statement shows that the petitioner paid the beneficiary wages of $4,583 during 
that month. That statement shows a year-to-date total, through December 3 1,2002, of $41,673. 
The cancelled check and check stub provided is for wages paid for the month of April 2002. The petitioner 
paid the beneficiary $4,583 for work performed during that month. The pay stub shows that the beneficiary's 
gross year-to-date pay was also $4,583 when that check was issued, thus indicating that the beneficiary did 
not work for the petitioner during the first quarter of 2002. 
The 2005 and 2006 earnings statements, issued to the beneficiary by an employer other than the petitioner, are 
not relevant to whether the petitioner intended to employ the beneficiary pursuant to the terms of the 
approved labor certification.' 
The record shows that the Form 1-140 petition in this matter was approved on August 15,2001. 
The record contains an investigative report that states, 
On Thursday, October 17,2002, [the beneficiary and his spouse] appeared for an Adjustment 
of Status interview. During the interview [the beneficiary] was questioned as to his current 
position and current salary with [the petitioner]. stated, under oath, that he was a 
System Analyst with a current salary of $54,000 a year. When [the beneficiary] was asked 
for copies of his filed 2001 income taxes, which he produced, it revealed that [the 
beneficiarvl had earned $25.509. Inside the file was a letter dated Avril 18. 2002, which 
stated tha; currkt annual salary is $55,000 a year. 
 also a 
letter, from [the petitioner], stating that he has a full-time permanent job offer, as a System 
Analyst, with an annual salary of $54,000, upon approval of his residency status. [The 
beneficiary] claims that he has been working for [the petitioner] since he entered the United 
States on May 25, 1999 as a System Analyst in a full-time capacity (See sworn statement in 
file). With all the documents provided and the given answers on the sworn statement it is this 
unlawhlly or failed to meet the terms and conditions of his H-1B visa and was thus out of legas states when 
he filed the Form 1-485 application to adjust status to permanent resident is beyond the scope of this decision. 
The beneficiary's eligibility to adjust status to permanent resident, includingt his eligibility under section 
245(i) of the Act, 8 U.S.C. 8 1255(i), is determined at the time of the 1-485 adjudication. 
2 
 This office will assume that those other earnings statements were submitted to show that the beneficiary 
worked for another employer, and to demonstrate that the petition should be approved pursuant to the 
provisions of The American Competitiveness in the Twenty-First Century Act of 2000 (AC21). This office notes 
that AC21, under some circumstances, precludes denial of a petition merely because the beneficiary has gone to 
work for another employer. In this case, the petition was not denied because the beneficiary had changed jobs, 
and AC21 has no applicability to the outcome of this appeal. 
officer's belief that there is a possibility of fraud involved in this case, therefore it is 
recommended that [approval of the visa petition] be revoked. 
The beneficiary's sworn statement is dated October 17, 2002. In that statement the beneficiary asserted that 
his salary when he came to the United States was $54,000 per year, that it increased to $60,000 on some 
unspecified date, and that it was lowered to $54,000 again based on the poor economy. Asked why he 
declared income of only $25,509 during 2001 the beneficiary stated that he was then between projects. 
The director revoked approval of the petition on April 29, 2005. On appeal, counsel noted that the petitioner 
is not required to employ the beneficiary at any time prior to his adjustment to permanent resident statw3 
Counsel asserted that the fact that the petitioner was not employing the beneficiary at the proffered wage on 
the date of his adjustment interview is not grounds for denial in itself, nor evidence of a material 
misstatement. 
Counsel also argued that section 205 of the Act, 8 U.S.C. 9 1155, protects an approved visa from revocation 
once the beneficiary has come to the United States. Counsel relied on the third sentence of that section as 
support for that assertion, citing Firstland International, Inc. v. USINS, 377 F. 3d 127 (August 2, 2004). 
This office need not reach the issue of whether the section upon which counsel relied would prevent 
revocation under the circumstances of the instant case. The section upon which counsel relied was amended 
on December 17, 2004, deleting the sentence upon which counsel relied. This amendment was effective prior 
to the April 25, 2005 revocation of approval of the instant visa petition. Firstland International, Inc. v. 
USINS, 377 7. 3d 127, the case relied upon by the petitioner, was subsequently denied again based on this 
change in the law.4 
The remaining issue is whether the evidence in the record justified revocation of approval of the visa petition. 
Nothing the beneficiary said at his interview strongly suggests that the petitioner did not intend, as it has 
consistently asserted, to employ the beneficiary pursuant to the terms of the approved labor certification 
beginning on the date of his adjustment. 
When asked at his interview when the petitioner began paying him $54,000 per year the beneficiary answered 
that he began earning that amount when he first entered the United States. The record does not contradict that 
assertion. 
The Form ETA 750 B states that the beneficiary began working for the petitioner sometime during July of 
1999. At his interview the beneficiary stated that he began working for the petitioner on May 25, 1999. 
Although those two statements are discrepant, the discrepancy is minor and not relevant to any material issue. 
The record does not reveal how much the petitioner paid the beneficiary during 1999. 
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3 
 Actually, the letter containing these arguments is dated December 2, 2004 and was submitted in response to 
the Notice of Intent to Revoke, though it was not then received and placed in the record. 
Firstland International, Inc. v. USINS. 2006 WL 4360 1 1 (E.D.N.Y .) (Unpublished). 
During 2000 the beneficiary earned $42,668. The August 30, 2000 pay stub submitted shows that the 
beneficiary had earned that amount prior to that date. The beneficiary apparently did not work for the 
petitioner during the last four months of 2000. Earning $42,668 prior to August 30,2000 is consistent with a 
$60,000 annual salary minus slightly more than three months. In explaining why he earned less than the 
proffered wage during 200 1 the beneficiary stated that he did not work during some portion of 2001 because 
he was between projects. That hiatus apparently began sometime during August of 2000. 
During 2001 the petitioner paid the beneficiary $25,509. That amount is consistent with the beneficiary 
working only part of that year, as he claimed. 
During 2002 the petitioner earned $41,673. 
 That is the amount stated on both the W-2 form and the 
December 31 2002 pay statement. Further, the April pay stub shows that the petitioner did not employ the 
beneficiary during 2002 prior to April. The beneficiary may also have been laid off sometime after the 
October 17, 2002 interview. The amount the petitioner paid the beneficiary is consistent with an annual 
salary of $54,000 to $60,000, reduced by lay offs. 
Because, when asked his salary and when he began earning it, the beneficiary did not spontaneously add that 
his earnings were interrupted since the petition was submitted, the beneficiary's answer might arguably be 
seen as imperfectly detailed. Nothing in the record, however, demonstrates that the beneficiary's answers 
were false or that his imperfectly detailed answer was given in an attempt to mislead the interviewer. 
Further, even if the evidence were inconsistent with the beneficiary's assertion of his salary, this office notes 
counsel's argument pertinent to materiality. The petitioner is not obliged to employ the beneficiary prior to 
adjustment of status and is not bound to pay him any specific salary if it does employ him.' 
The record indicates that the petitioner did respond to the Notice of Intent to Revoke. Nothing in the record 
indicates that approval of the visa petition was occasioned by fi-aud. The record does not establish that the 
petitioner does not intend to employ the beneficiary pursuant to the terms of the approved labor certification. 
The petitioner has overcome the basis for denial and the bases for the Notice of Intent to Terminate. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
3 136 1. The petitioner has met that burden. 
ORDER: The appeal is sustained. The petition is approved. 
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5 
 The employer's obligation to pay the beneficiary the prevailing wage as an H-1B employer is beyond the 
scope of the instant decision.