dismissed H-1B Case: Business Operations

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-I-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 8, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner seeks to extend the Beneficiary's temporary employment as a "business operation 
specialist" under the H-1B nonimmigrant classification for specialty occupations. See Immigration 
and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). 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 Director, Vermont Service Center, initially approved the petition. Upon subsequent review of 
the record, the Director issued a notice of intent to revoke (NOIR) the approval of the petition, and 
ultimately did revoke the approval of the petition. The Director concluded that the Petitioner 
violated the terms and conditions of the approved petition. 
The matter is now before us on appeal. In its appeal, the Petitioner contends that the Director lacked 
sufficient evidence to revoke the approval of the petition, and that U.S. Citizenship and Immigration 
Services (USCIS) does not have the authority to make administrative site visits. 
Upon de novo review, we will dismiss the appeal. 
I. ADMINISTRATIVE SITE VISIT AUTHORITY 
We will first address the Petitioner's claim that USCIS has no authorization to conduct site visits. 
First, 8 C.P.R.§ 214.2(h)(9)(i) requires USCIS to consider not just the evidence submitted in support 
of a petition but also "such other evidence [it] may independently require to assist its adjudication." 
This includes evidence from a site visit conducted to verify the veracity of the claims made in 
support of a petition. Second, the Form I-129 instructions, which are incorporated by reference into 
the applicable regulations via 8 C.P.R .. § 103.2(a)(1), specifically authorize site visits. The 
instructions to the Form I-129 notify the Petitioner of"USCIS Compliance Review and Monitoring." 
The instructions state, in pertinent part: 
By signing this form, you have stated under penalty of perjury (28 U.S.C. 
section 1746) that all information and documentation submitted with this form is true 
Matter of P-1-, Inc. 
and correct. You have also authorized the release of any information from your 
records that USCIS may need to determine eligibility for the benefit you are seeking 
and consented to USCIS' verification of such information. 
The Department of Homeland Security has the legal authority to verifY any 
information you submit to· establish eligibility for the immigration benefit you are 
seeking at any time. USCIS' legal authority to verify this information is in 8 U.S.C. 
Sections 1103, 1154, and 1155, and 8 CFR Parts 103, 204, and 205. To ensure 
compliance with applicable laws and authorities, USCIS may verify information 
before or after your case has been decided. Agency verification methods may include, 
but are not limited to: review of public records and information; contact via written 
correspondence, the Internet, facsimile, or other electronic transmission, or telephone; 
unannounced physical site inspections of residences and places of employment; and 
interviews. Information obtained through verification will be used to assess your 
compliance with the laws and to determine your eligibility for the benefit sought.1 
The form itself also requires the Petitioner to sign it under penalty of perjury, attesting that all 
evidence submitted with the record is true and correct. 
The Secretary of Homeland Security maintains broad authority to administer and enforce the Act and 
all other laws relating to the immigration and naturalization of foreign nationals. Sec. 103(a)(l) of 
the Act, 8 U.S.C. § 1103. Among the authorities delegated to USCIS, the Secretary delegated the 
authority to conduct interviews, investigate alleged civil violations of the immigration laws, and to 
station officers overseas. See Department of Homeland Security (DHS) Delegation Number 0150.1 
(effective March 1, 2003 ); see also 8 C.F .R. § 2.1 (2004 ). 
USCIS regulations give the agency specific authority to take testimony and conduct investigations: 
"The USCIS may require the taking of testimony, and may direct any necessary investigation." 
8 C.F.R. § 103.2(b)(7). The former Immigration and Naturalization Service (INS) initially published 
this regulation as a proposed rule, with request for public comment, on December 2, 1991. 56 Fed. 
Reg. 61201, 1991 WL 251729 (Dec. 2, 1991). The INS published the final rule on January 11, 1994. 
59 Fed. Reg. 1455, 1994 WL 5197 (Jan. 11, 1994). The 1994 Federal Register notice reflects no 
public comments or objections to the INS, now USCIS, authority to take testimony and conduct 
investigations. 
We conclude that there is ample authority for USCIS to investigate and verify eligibility for 
immigration benefits, including the use of site visits. 
1 It is noted that page 15 of the instructions to the March ll, 2009 version of the Form l-129 signed by the Petitioner in 
this matter has a similar section entitled "Verification of Evidence," which is essentially the predecessor to the section 
quoted herein. Similarly, this prior version also informed a petitioner that "USCIS may verify the submitted evidence 
through any means that USCIS determines as appropriate, up to and including an on-site inspection." 
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(b)(6)
Matter of P-1-, Inc. 
II. TERMS AND CONDITIONS OF EMPLOYMENT 
A. Worksite 
The Form I-129 lists the work location as Texas 
During the site visit, the site inspector found that the location is a gas station with a mini mart. In 
response to the NOIR, the Petitioner stated that the office was located at the rear of the store, but that 
it was damaged by Hurricane Ike. The Petitioner submitted photographs of the damaged office and 
the new office in response to the NOIR. In addition, on appeal, the Petitioner indicated that the new 
office was located at the Beneficiary's home address located at 
Texas 
We note that Hurricane Ike struck Texas in September 2008. The instant petition was not filed until 
July 23, 2009, which is 10 months after the hurricane. Nevertheless, the Petitioner still indicated on 
the Form I-129 and Labor Condition Application (LCA) that the worksite for the Beneficiary was 
Texas 
B. Proffered Wage 
Section 101(a)(15)(H)(i)(b) of the Act defines an H-lB nonimmigrant, in pertinent part, as an 
individual: 
[S]ubject to section 212(j)(2), who is coming temporarily to the United States to 
perform services . . . in a specialty occupation described in section 214(i)(l) ... , who 
meets the requirements for the occupation specified in section 214(i)(2) ... , and with 
respect to whom the Secretary of Labor determines and certifies to the (Secretary of 
Homeland Security] that the intending employer has filed with the Secretary [of 
Labor] an application under section 212(n)(l) .... 
The Petitioner requirements for H -1 B petitions involving a specialty occupation are set forth at 
8 C.F.R. § 214.2(h)(4)(iii)(B), which provides, in pertinent part, that: 
The petitioner shall submit the following with an H-lB petition involving a specialty 
occupation : 
(I) A certification from the Secretary of Labor that the petitioner has filed a labor 
condition application with the Secretary, 
(2) A statement that it will comply with the terms of the labor condition 
application for the duration of the alien's authorized period of stay[.] 
Regarding attestations contained in the LCA, the U.S. Department of Labor (DOL) regulations at 
20 C.F.R. § 655.730(d) also state, in pertinent part, the following: 
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(b)(6)
Matter of P-1-, Inc. 
An employer's LCA shall contain the labor condition statements referenced in §§ 
655.731 through 655.734, and §[§] 655.736 through 655.739 (if applicable), which 
provide that no individual may be admitted or provided status as an H-lB 
nonimmigrant in an occupational classification unless the employer has filed with the 
Secretary an application stating that: 
(1) The employer is offering and will offer during the period of authorized 
employment to H -1 B nonimmigrants no less than the greater of the following 
wages[:] 
(i) The actual wage paid to the employer's other employees at the 
worksite with similar experience and qualifications for the specific 
employment in question; or 
(ii) The prevailing wage level for the occupational classification in the 
area of intended employment[.] 
US CIS records show that the Beneficiary has been H-1 B classification since September 28, 2003. 
The Petitioner ' s first H-lB petition for the Beneficiary was approved for a 
period of almost three years from August 26, 2003, to August 1, 2006, with a proffered wage of 
$33,600.00 per year. The second H-lB petition was approved for a period of 
three years from August 2, 2006, to August 1, 2009, with a proffered wage of $40,477.00 per year, 
and the third petition was approved for a period of three years from 
August 2, 2009, to August 1, 2012, with a proffered wage of $40,477.00 per year. 
In response to the NOIR, the Petitioner submitted copies of the Beneficiary 's Forms W-2 from 2004, 
2005, 2006, 2007, 2008, and 2009? We note the following: 
W-2s The petitioner paid The petitioner was required 
to have paid 
2004 $28,000 $33,600 
2005 $28,000 $33,600 
2006 $33,600 $36,465.42 
2007 $33,600 $40,477 
2008 $33,600 $40,477 
2009 $33,600 $40,477 
2 It must be noted for the record that the Federal Employer Identification Number (FEIN) listed on the Forms W-2 for 
2004, 2005, and 2006 is different from the FEIN listed on the Forms W-2 for 2007, 2008, and 2009 
This discrepancy draws into question the credibility of the Forms W-2 and whether they represent actual 
wages and withholdings reported to the Internal Revenue Service . "[l]t is incumbent upon the petitioner to resolve the 
inconsistencies by independent objective evidence. " Matter ofHo , 19 I&N Dec. 582,591 (BIA 1988). Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. !d. at 591-92 . 
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Matter of P-1-, Inc. 
The Petitioner has not demonstrated that it complied with the terms and conditions of the instant and 
previously approved petitions. 
C. Proffered Position 
The Petitioner submitted letters from prospective buyers in India in response to the NOIR; however, 
the evidence is insufficient to establish that the Beneficiary is working in the capacity of a business 
operation specialist. For instance, the letters reference quotes for products; but, the Petitioner does 
not provide copies of any quotes provided by the Petitioner. In addition, the Petitioner does not 
provide any contracts to demonstrate that it has imported and exported chemicals and plastics. The 
Petitioner has not established that it employs the Beneficiary in accordance with the terms and 
conditions of the approved H-1B petition. In visa petition proceedings, the burden is on the 
Petitioner to establish eligibility for the benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 
495 (BIA 1966)). "[G]oing on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden ofproofin these proceedings." In re Sojjici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
III. CONCLUSION 
In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-I-, Inc., ID# 13456 (AAO Mar. 8, 2016) 
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