dismissed H-1B Case: Business Analysis

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-T- INC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 1, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a trucking company, seeks to temporarily employ the Beneficiary as a part-time 
"business analyst" under the H-1B nonimmigrant classification for specialty occupations. See 
Immigration and Nationality Act section 101(a)(l5)(H)(i)(b), 8 U.S.C. § 1101(a)(l5)(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. 
After initially approving the petition, the Director of the Vermont Service Center issued a notice of 
intent to revoke (NOIR). The Director revoked the approval of the petition finding that the 
Petitioner did not respond to the NOIR. The Petitioner filed a combined motion to reopen and 
reconsider, asserting that it submitted a response to the NOIR. The Director reopened the matter to 
consider the Petitioner's response to the NOIR. Then the Director revoked the approval of the 
petition, this time finding: (1) that the Petitioner was not employing the Beneficiary in the capacity 
specified in the petition; and (2) that the Petitioner had violated the terms and conditions of the 
approved petition. 
On appeal, the Petitioner submits additional evidence and contends that the petition's approval 
should be reinstated. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
We may revoke the approval of an H-1B petition pursuant to 8 C.F.R. § 214.2(h)(11)(iii), which 
states the following: 
(A) Grounds for 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: 
(I) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition ... ; or 
Matter of S-T- Inc 
(2) The statement of facts contained in the petition ... was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact; or 
(3) The petitioner violated terms and conditions of the approved petition; 
or 
(4) The petitioner violated requirements of section 101(a)(15)(H) of the 
Act or paragraph (h) of this section; or 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
II. BACKGROUND 
The Petitioner stated that in the H-1B petition that the Beneficiary would serve as a "business 
analyst," and the record contains a detailed description of her duties. The Petitioner stated in the 
Form I-129, Petition for a Nonimmigrant Worker, that the Beneficiary would work 32 hours per 
week, earning $960 per week or $49,920 per year. It stated in the labor condition application that 
this figure would equate to $30 per hour. 
As noted, the Director initially approved the H-1 B petition. Several months later, the petition was 
selected for an administrative site visit. However, the immigration officer (IO) conducting the site 
visit was unable to meet with either the signatory of the H-1B petition or the Beneficiary. Though 
the Petitioner had claimed 1 0 employees on the Form I -129, no one was at the claimed worksite - a 
home in a residential neighborhood. 
The IO called the telephone number provided in the H-1B petitiOn a few days later, and the 
Beneficiary answered. She indicated to the IO that although the H-1 B signatory was unavailable, 
she was onsite and could meet with the IO. When the IO suggested they meet in 10 minutes, the 
Beneficiary said she would not be able to do so because she was not onsite because she had to eat 
lunch and then meet with clients. The H-lB signatory then called the IO, and stated that although 
the Beneficiary was working, she would not be able to meet with the IO because she would leaving 
shortly to meet a member of her family at the airport. 1 The H-1 B signatory notified the IO that email 
was the best method to reach him. Subsequently, both the IO and the Director, exchanged several 
emails with the H-lB signatory. 
The results of the site visit and follow-up emails raised several concerns for the Director. In 
particular, the Director questioned: (1) whether the Beneficiary was performing the duties specified 
in the H-lB petition; and (2) whether the Beneficiary was being paid the wage specified in the H-lB 
petition. 
1 In other words, the Petitioner's H-1 B signatory and the Beneficiary provided conflicting statements as to why the 
Beneficiary was unable to meet with the 10. 
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Matter of S-T- Inc 
The Director relayed the findings of the site visit and her resulting concerns to the Petitioner in her 
NOIR. The Director requested, in part, verification that the Beneficiary was performing certain 
claimed duties and requested a "sampling of the work the beneficiary has performed while working 
..in your office since May 13, 2015, such as project progress or status reports that include the 
beneficiary's name." 
With regard to the wage issue, the Director stated the following: 
The approved petition indicates that the beneficiary will be paid $960 per week. This 
equates to an annual salary of$49,920. The site inspector was provided copies of the 
beneficiary's earnings statements indicating the beneficiary is being paid a weekly 
salary of $825. This equates to an annual salary of $42,900. This is less than the 
wage stated in the petition. 
The Petitioner did not submit the specific evidence regarding the Beneficiary's work as requested. 
Though the Petitioner submitted copies of invoices, receipts, and a report of goods sold, the 
Petitioner did not indicate whether any of this documentation had been prepared by the Beneficiary. 
With regard to the wage underpayment issue, the Petitioner stated that the Beneficiary was in fact 
being paid $30 per hour, but that she was not working 32 hours per week as stated in the H-lB 
petition. According to the Petitioner, she had instead been working 27.5 hours per week "owing to 
her personal issues." The Petitioner conceded that the Beneficiary was paid $825 per week in 2015, 
and that she earned a total of $42,900 during that year. 
The Director did not find the Petitioner's response persuasive and revoked the petition's approval. 
III. ANALYSIS 
The Director revoked the approval of this petition on two grounds: (1) that the Petitioner was not 
employing the Beneficiary in the capacity specified in the petition, pursuant to 8 C.P.R. 
§ 214.2(h)(ll )(iii)(A)(l); and (2) that the Petitioner had violated the terms and conditions of the 
approved petition, pursuant to 8 C.P.R. § 214.2(h)(ll)(iii)(A)(3). 
A. Employment in Capacity Specified in Petition 
In revoking the approval ofthe petition pursuant to 8 C.P.R.§ 214.2(h)(ll)(iii)(A)(l), the Director 
stated the following: 
Although specifically requested, you did not submit a sampling of the work the 
beneficiary has performed. 
Although the Petitioner submitted a more detailed listing of duties in response to the NOIR, it did 
not submit the specific .evidence requested by the Director in the NOIR- work product bearing the 
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Matter of S-T- Inc 
Beneficiary's name. The Petitioner did not explain why such evidence was unavailable, and it elects 
not to address this ground for revocation on appeal. This ground for revocation has therefore not 
been overcome. 
B. Terms and Conditions of the Approved Petition 
In revoking the approval of the petition pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(A)(3), the Director 
stated the following: 
The beneficiary's 2015 Wage and Tax statement indicates the beneficiary earned 
$49,900 [for] the year. The earnings statements provided indicate the beneficiary was 
paid a salary of $825.00 per week equating to an annual salary of $42,900. The 
statement regarding the beneficiary's employment also indicates the beneficiary was 
paid $825.00 per week. This salary is less than the salary of $49,920 per year or 
$960.00 per week stated in the approved petition. 
The record shows that the beneficiary's rate of pay does not equal or exceed the 
proffered wages established by the terms and conditions of the approved petition. 
The Petitioner largely repeats its earlier assertions regarding the Beneficiary's earnings on appeal. 
In particular, the Petitioner states that the Beneficiary worked "27-28" hours per week "[g]iven her 
personal circumstances." 
We do not find the Petitioner's explanation persuasive. According to the Petitioner, the Beneficiary 
worked "27.5" or "27-28" hours per week throughout 2015. However, when the Petitioner filed this 
H-1B petition in April 2015, it stated on the Form I-129 that the Beneficiary would work 32 hours 
per week. The Petitioner's current claims that the Beneficiary has been working reduced hours 
throughout 2015 contradict its statements at the time of filing. 
The Petitioner's statement emailed to the IO during the site visit process compound this problem 
further. In September 2015, the Petitioner's H-1B signatory emailed the 10 and stated that the 
Beneficiary's annual salary was $49,920. This was not true, however. As the Petitioner now 
concedes, the Beneficiary was only earning a salary of $42,900 at that point and, if its claims on 
appeal are correct, she had been earning that reduced salary for nearly ten months when that 
incorrect claim was made to the I 0. 
The Petitioner must resolve these inconsistencies with independent, objective evidence pointing to 
where the truth lies., Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material 
inconsistencies may lead us to reevaluate the reliability and sufficiency of other evidence submitted 
in support of the requested immigration benefit. !d. The Petitioner has not resolved the wage 
underpayment issue identified in the NOIR, and the conflicts between its current and prior claims 
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Matter of S-T- Inc 
raise additional questions.2 In any event, we find that the Petitioner has not overcome this ground 
for revocation. 
IV. CONCLUSION 
We find that the Petitioner has not overcome either of the Director's grounds for revoking the 
approval of this petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-T- Inc, ID# 375614 (AAO June 1, 2017) 
2 
The regulation at 20 C.F.R. § 655.731(c)(l) mandates that "[t]he required wage must be paid to the [(H-1 B)] employee, 
cash in hand, free and clear, when due[.]" While 20 C.F.R. § 655.731(c)(9) contains several exceptions to this general 
rule, none of them apply here. 
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