dismissed H-1B Case: Aerospace Engineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF VTS-A-A- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 15.2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an aircraft maintenance company, seeks to extend the Beneficiary's temporary 
employment as an ··aircraft technologies engineer'' under the H-1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 1 01 (a)( 15 )( H)(i )(b). 
8 U.S.C. § 1101(a)(l5)(H)(i)(b). The H-18 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 Director of the Vermont Service Center initially approved the Form I-129, Petition for a 
Nonimmigrant Worker. Subsequently. the Director issued a notice of intent to revoke, and revoked 
the petition's approval. The Director concluded that the record did not establish that the Petitioner 
compensated the Beneficiary with a wage equal to or greater than that required by law. 
On appeaL the Petitioner submits additional evidence and asserts that it has complied with the 
compensation requirements. Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
A. Revocation Authority 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-1 B petition 
pursuant to 8 C.F.R. § 214.2(h)(11)(iii). which states the following: 
(A) GroundsfiH revocation. The director shall send to the petitioner a notice of intent 
to revoke the petition in relevant part if he or she finds that: 
(1) The beneficiary is no longer employed by the petitioner m the capacity 
specified in the petition; or 
(2) The statement of facts contained in the petition ... was not true and correct, 
inaccurate. fraudulent, or misrepresented a material fact: or 
Matter ol VTS-A-A- Inc. 
(3) The petitioner violated terms and conditions of the approved petition; or 
(-/)The petitioner violated requirements of section l01(a)(l5)(H) of the Act or 
paragraph (h) ofthis section; or 
(5) The approval of the petition violated paragraph (h) of this section or involved 
gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part .... 
B. Requisite Payment of H-1 B Wages 
Section 212(n)(1)(A) of the Act. 8 U.S.C. § 1182(n)(1)(A). requires an employer to pay an H-18 
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 experience 
and qualifications who are performing the same services.' See 20 C.F.R. § 655.731 (a); Venkatraman 
v. REI Sys .. Inc .. 417 F.3d 418.422 & n.3 (4th Cir. 2005); Michal Vojtisek-Lom & Adm'r WaRe & 
Hour Div. v. Clean Air Tech. In! '1. Inc .. No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor 
Admin. Rev. Bd. July 30. 2009). Implemented through the labor condition application (LCA) 
certification process, section 212(n)(l )(A) is intended to protect U.S. workers' wages by eliminating 
economic incentives or advantages in hiring temporary foreign workers. See. e.g, 65 Fed. Reg. 
80,110, 80.110-111, 80,202 (2000). The LCA currently requires petitioners to describe. inter alia. 
the number of workers sought the pertinent visa classification for such workers. their job title and 
occupational classification, the prevailing wage. wage rate, and the place(s) of employment. 
To promote the U.S. worker protection goals. a statutory and regulatory scheme allocates 
responsibilities between the U.S. Department of Labor (DOL) and the U.S. Department of Homeland 
Security (DHS ). A prospective employer must tile an LC A and receive certification from DOL 
before an H-IB petition may be submitted to USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B)(i); 20 C.F.R. 
§ 655.700(b)(2). While DOL is the agency that certifies LCA applications before they are submitted 
to USCIS. DOL regulations note that the DHS (i.e., its immigration benefits branch. USCIS) is the 
department responsible for determining whether the content of an LCA tiled for a particular Form 
1-129 actually supports that petition. See 20 C.F.R. § 655.705(b), which provides, in pertinent part: 
'·For H-18 visas ... DHS accepts the employer's petition (DHS Form 1-129) with the DOL-certi1ied 
LCA attached. In doing so. the DHS determines whether the petition is supported by an LCA which 
corresponds with the petition ...... 
1 
For more information regarding establishing the wage requirement, see 20 C.F.R. § 655.731 (a). 
2 
Matter of VTS-A-A- Inc. 
With regard to the payment of wages. the pertinent part of 20 C.F.R. ~ 655.731(c) states the 
following: 
Satisfaction ofrequired wage obligation. 
( 1) The required wage must be paid to the employee. cash in hand, free and clear. 
when due .... 
(2) ·'Cash wages paid," for purposes of satisfying the H-1 B required wage. shall 
consist only of those payments that meet all the following criteria: 
(i) Payments shown in the employer's payroll records as earnings for the 
employee. and disbursed to the employee, cash in hand. tree and clear, when 
due, except for deductions authorized by paragraph (c)(9) of this section: 
(ii) Payments reported to the Internal Revenue Service (IRS) as the employee's 
earnings, with appropriate withholding for the employee's tax paid to the IRS 
(in accordance with the Internal Revenue Code of 1986. 26 U.S.C. Let seq.); 
(v) Future bonuses and similar compensation (i.e., unpaid but to-be-paid) may be 
credited toward satisfaction ofthe required wage obligation if their payment is 
assured (i.e., they are not conditional or contingent on some event such as the 
employer's annual profits). Once the bonuses or similar compensation are 
paid to the employee. they must meet the requirements of paragraphs (c)(2)(i) 
through (iv) of this section (i.e., recorded and repmied as '·earnings" with 
appropriate taxes and FICA contributions withheld and paid). 
(3) Benefits and eligibility for benefits provided as compensation for services (e.g. 
cash bonuses; stock options; paid vacations and holidays; health, life, disability 
and other insurance plans; retirement and savings plans) shall be offered to the 
H-1 B nonimmigrant(s) on the same basis. and in accordance with the same 
criteria, as the employer offers to U.S. workers. 
(i) For purposes of this section. the offer of benefits "on the same basis, and in 
accordance with the same criteria'' means that the employer shall otTer H-1 B 
nonimmigrants the same benefit package as it offers to U.S. workers, and may 
not provide more strict eligibility or participation requirements for the H-1 B 
nonimmigrant(s) than for similarly employed U.S. workers(s) (e.g. full-time 
workers compared to full-time workers; professional staff compared to 
professional staff). H -1 B nonimmigrants are not to be denied benefits on the 
basis that they are "temporary employees'' by virtue of their nonimmigrant 
, 
Matter of VTS-A-A- Inc. 
status. An employer may otTer greater or additional benefits to the H-1 B 
nonimmigrant(s) than are offered to similarly employed U.S. worker(s). 
provided that such differing treatment is consistent with the requirements of 
all applicable nondiscrimination laws (e.g. Title VII of the 1964 Civil Rights 
Act, 42 U .S.C. 2000e-2000e 17). Offers of benefits by employers shall be 
made in good faith and shall result in the H-1 B nonimmigrant(s)'s actual 
receipt of the benefits that are offered hy the employer and elected by the 
H-lB nonimmigrant(s). 
(4) For salaried employees. wages will be due in prorated installments (e.g .. annual 
salary divided into 26 bi-weekly pay periods. where employer pays bi-weekly) 
paid no less often than monthly except that. in the event that the employer 
intends to use some other form of nondiscretionary payment to supplement the 
employee's regular/pro-rata pay in order to meet the required wage obligation 
(e.g.. a quarterly production bonus). the employer· s documentation of wage 
payments (including such supplemental payments) must show the employer's 
commitment to make such payment and the method of determining the amount 
thereof~ and must show unequivocally that the required wage obligation was met 
for prior pay periods and. upon payment and distribution of such other payments 
that are pending, will be met for each current or future pay period .... 
(5) For hourly-wage employees, the required wages will be due for all hours worked 
and/or for any nonproductive time (as specified in paragraph ( c )(7) of this 
section) at the end ofthe employee's ordinary pay period (e.g .. weekly) but in no 
event less frequently than monthly. 
II. PROCEDURAL HISTORY 
On the LCA filed in support of this petition, the Petitioner classified the proffered position under the 
occupational title ··Aerospace Engineers,'' corresponding to the Standard Occupational Classification 
code 17-2011, and indicated that it would compensate the Beneficiary at the rate of $55,390 per 
year.
2 
By submitting and signing the petition and the LCA. the Petitioner attested that the 
infom1ation provided was true and correct. and that it would comply with the wage requirement in 
the LCA. 
2 
While the Petitioner discusses multiple LCAs and petitions it has filed on the Beneficiary's behalf: we will limit our 
discussion to the petition on appeal and the LCA supporting this petition. 
4 
Matter of VT.S'-A-A-Inc. 
The Director revoked the petition's approval finding that the Petitioner did not compensate the 
Beneficiary in accordance with the prevailing wage as stated on the petition and the LCA. The 
Director's determination rested on calculating the Beneficiary" s paid wage as $22 per hour for 80 
hours of work per pay period resulting in annual compensation of $45.760. The Director 
acknowledged the Beneficiary's compensation as represented on his 2015 Internal Revenue Service 
Form W-2, Wage and Tax Statement, was higher than the prevailing wage. However. the Director 
determined that this figure included overtime. holiday, and other miscellaneous earnings. 
The Petitioner states on appeal that it compensated the Beneficiary in accordance with the LCA. 
The Petitioner provides the Beneficiary"s earnings statements and a letter from its human resources 
(HR) department. 
III. ANALYSIS 
Upon review, we conclude that the Director properly revoked the approval of the petition because 
the record does not establish that the Petitioner satisfied the wage requirement. 3 
The Petitioner indicated that it would pay the Beneficiary an annual salary of $55.390 or $2.130 per 
pay period (the annual salary divided into 26 bi-weekly pay periods). 4 We note that the LCA, the 
petition, and the Petitioner's letter accompanying the petition stated it would compensate him with 
an annual salary at the minimum required rate. However. the Beneficiary"s earnings statements 
reveal that the Petitioner did not compensate him at an annual salary. The Petitioner did not indicate 
that it intended pay him an hourly wag-e and that the only means to meet its compensation 
responsibilities would be to add several ancillary items to his hourly wage. The Petitioner must 
resolve this discrepancy in the record with independent. objective evidence pointing to where the 
truth lies. Matter ofHo, 19 l&N Dec. 582, 591-92 (BIA 1988). The record does not contain the 
Petitioner's explanation describing why it claimed one method of payment, but instead elected to 
compensate the Beneficiary under a separate arrangement. 
Regardless, for the relevant requested employment period, the Petitioner was required to pay 
$22.365; however, the Petitioner paid the Beneficiary a qualifying total of $20J 13, a deficit of 
$2,252. 5 Below we explain our calculation methodologies beginning with two charts summarizing 
the scenario: 
3 
We base our calculations on the prevailing wage since the record does not contain evidence of the actual wage. See 
section 212(n)(l)(A)(i)(l) ofthe Act: 20 C.F.R. § 655.715. 
~The requested period of employment is from July 19. 2015. to December 14. 2015. which is 21 weeks and two days. 
o This figure relies on the Beneficiary's hourly wage of $22, license pay, holiday pay, and paid time off. We conclude 
that these items were consistently paid or calculated, and generally consisted of the Beneficiary's 80 hours of work each 
week. Below we discuss why the remaining line items listed on his earnings statements will not contribute to the salary 
the Petitioner stated it would pay him. 
5 
Matter of VTS-A-A- Inc. 
Prevailing Wage Wage Paid Difference 
Prorated at 21 weeks $22,365 $20,113 -$2,25i' 
Per pay period $2J30 $1,915 -$215 
Pay Period End Regular License Pay Holiday Pay Paid Time Period 
Date Wage Off Total 
July 25,2015 7 $880 $40 N/A N/A $920 
August 8, 2015 $1.760 $80 N/A N/A $1,840 
August 22, 2015 $1,463 $83 N/A $352 $1,898 
September 5, 2015 $1,760 $80 N/A N/A $1,840 
September 19. 2015 $1,432 $82 $176 $176 $1,866 
October 3, 2015 $1,760 $80 N/A N/A $1,840 
October 17, 2015 $1.760 $80 N/A N/A $1.840 
October 31. 2015 $1.760 $80 N/A N/A $1.840 
November 14,2015 $1.760 $80 N/A N/A $1.840 
November 28, 2015 $1.760 $88 $176 N/A $2.024 
December 12, 2015 $1,734 $79 N/A N/A $1,813 
December 26,2015
11 
$528 $24 N/A N/A $552 
Overall Total $18,357 $876 $352 $528 $20,113 
The Petitioner indicated that the Beneficiary would be a salaried employee. Notably. the regulation 
at 20 C.F.R. § 655.73 1(c)(4) permits forms of nondiscretionary payments to supplement a foreign 
national's regular pro-rata pay; however. the employer must demonstrate: 
1 . Its commitment to make such payments; 
2. Its methodology for determining the nondiscretionary payments; 
3. '·Unequivocally'' that it met the required wage obligation for prior pay periods: and 
4. That it will meet such payments for current and future pay periods. 
Within the Petitioner's HR letter. it discusses various nondiscretionary payments listed on the 
Beneficiary's earnings statements to include his holiday pay. license pay. ''OA" listed as 
miscellaneous earnings, paid time otl shift differential as compensation for working the second 
shift, funeral pay, and a year-end gift. 
1
' This deficit is only for a 21-week period. Were the figures calculated at the rate of pay per year in accordance with the 
Form 1-129 instructions. the Petitioner would pay the Beneficiary roughly $49,790 for a deficit of $5,600. 
7 
As the dates of intended employment on the petition only cover half of this pay period, we will calculate half of the 
Beneficiary's pay during this timeframe. 
~ As the dates of intended employment on the petition only covers three days of this pay period, we will calculate the 
total as the Beneficiary worked for the three days. 
Matter of VTS-A-A-lnc. 
We conclude that the Petitioner has not established that it has satisfied all requirements of 20 C.F.R. 
~ 655.73l(c)(4). Although the Petitioner submitted the Beneficiary's earnings statements and an 
explanatory letter from its HR department, this material does not demonstrate the Petitioner's 
commitment to make such payments. Furthermore, the evidence does not reveal the methodology 
the Petitioner utilized to determine the amount of each nondiscretionary payment listed on the 
Beneficiary's earnings statements. For example, the Petitioner did not explain what ··oA listed as 
Miscellaneous'' represents nor did it describe how it calculates this figure, which amounts to $1 ,528 
during the intended employment period listed on the petition. As shown in the above charts, the 
Petitioner did not compensate the Beneficiary in an amount sufficient to meet the prevailing wage. 
As a result. the Petitioner has not unequivocally demonstrated that it met the required wage 
obligation for prior pay periods, nor has it shown that it will meet such payments for current and 
future pay periods. 
Even if the Petitioner had established that the various items listed on the Beneficiary's earnings 
statements constituted qualifying nondiscretionary payments, it has not demonstrated that such 
benefits and eligibility for such benefits were offered to the Beneficiary on the same basis. and in 
accordance with the same criteria, as the employer offers to U.S. workers in accordance with 
20 C.F.R. § 655.731 (c)(3 ). Although the Petitioner claims through the HR letter that it paid all its 
aircraft technologies engineers in the same manner, it has not provided evidence of the compensation 
package it makes available to its U.S. workers in this same job title. The Petitioner's statement made 
without supporting documentation is of limited probative value and is insufficient to satisfy its 
burden of proof. Furthermore. the Petitioner did not specify that these additional earnings would be 
included in the Beneficiary's salary when it tiled the petition, and eligibility must be established at 
the time of filing. 8 C.F. R. ~ 1 03 .2(b )(I). 
Finally, the Petitioner has not shown that the additional line items on the Beneficiary's earnings 
statements cannot vary depending on the his circumstances. For instance. if the Beneficiary no 
longer worked on the second shift, or he did not work any overtime. he would experience a 
significant decrease in his wages. 
The Petitioner stated it would compensate the Beneficiary at a specific rate during a defined 
timeframe, and it must adhere to its attestations. Otherwise, it is not complying with the DOL 
regulation at 20 C.F.R. ~§ 655.705(c), 655.730(c)(2)-(3), as well as the regulation at 8 C.F.R. 
§ 214.2(h)( 4 )(iii)(B)(2). A petitioner must compensate a beneficiary with at least the rate listed on 
the LCA during the period the LCA governs; however, the Petitioner has not made such a showing. 
The record lacks sufficient probative evidence demonstrating that the Petitioner complied with the 
terms ofthe LCA or the petition during the Beneficiary's authorized period of stay. Specifically that 
it compensated the Beneficiary with a salary equal to or greater than that required by law. See 
section 212(n)(l )(A) of the Act. 9 
'!The petition contains additional deficiencies. While additional deficiencies beyond the Director"s decision to revoke 
the petition's approval will not be used as a further basis to dismiss this appeal, the Petitioner should be aware of the 
information for any future filings. Specifically. section 214(i)(2)(A) of the Act requires "full state licensure to practice in 
Matter of VTS-A-A- Inc. 
IV. CONCLUSION 
The approval of the petition will remain revoked because the Petitioner did not establish that it 
complied with the wage requirements. 
ORDER: The appeal is dismissed. 
Cite as Matter of VTS-A-A-lnc .. ID# 622922 (AAO Dec. 15. 2017) 
the occupation. if such licensure is required to practice in the occupation." Also see the regulation at 8 C.F.R. 
§ 214.2(h)(4)(v)(A). The Petitioner indicated on the petition that the Beneficiary would work in the State of Texas as an 
aircraft technologies engineer. The Texas Engineering Practice Act states that the term ·'engineer" means a person 
licensed to engage in the practice of engineering in Texas. The Texas Engineering Practice Act generally prohibits a 
person from engaging in the practice of engineering unless the person holds a license and a person must hold a license to 
use the title or representation "'engineer.'' The record does not contain evidence it has complied with the statute or the 
regulation as it relates to the Beneficiary's license to engage in the practice of engineering in Texas.