dismissed H-1B Case: Civil Engineering

(b)(6)
U.S. Citizenship 
and Immigration 
Services 
MATTER OF PCLI-C- CO. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 8, 2015 
PETITION : FORM I-129, PETITION FOR 
A NONIMMIGRANT WORKER 
The Petitioner , a construction business, seeks to employ the Beneficiary as a civil field engineer and 
classify him as a nonimmigrant worker in a specialty occupation. See section 101(a)(l5)(H)(i)(b) of 
the Immigration and Nationality Act (the Act), 8 U .S.C. § 1101(a)(15)(H)(i)(b). The Director, 
Vermont Service Center, approved the petition but revoked the approval following additional 
review. The matter is now before us on appeal. The appeal will be dismissed. 
I. FACTUAL AND PROCEDURAL HISTORY 
In the Form I-129 petition, the Petitioner stated that it seeks the Beneficiary's services as a civil field 
engineer on a full-time basis. The Petitioner stated that the Beneficiary would be employed at the 
Petitioner's location in Georgia and submitted a Labor Condition Application (LCA) 
certified for employment at the same address, which is located in the 
The Petitioner did not request any other worksites 
and did not submit an itinerary . See 8 C.F.R. § 214.2(h)(2)(i)(B) (requiring an itinerary for services 
performed in more than one location). 
After the petition was approved, an administrative site visit was conducted. 1 The site inspector made 
contact with the Petitioner's District HR Recruiter, who confirmed the Beneficiary's continued 
employment with the Petitioner. However, the Beneficiary was not working at the location specified 
on the LCA, but was instead living and working in Texas. 
The Director reviewed the site visit report and the record of proceeding and issued a notice of intent 
to revoke (NOIR). The NOIR provided a detailed statement of the revocation grounds, and afforded 
the Petitioner an opportunity to provide a rebuttal. See 8 C.F.R. § 214.2(h)(ll )(iii)(B). In response, 
the Petitioner stated that the Beneficiary works at the office performing pre-planning 
1 USCIS must be able to verify the inform ation provided in the petition to further determine eligibility for an 
immigration benefit and/or compliance with applic able laws and authorities. To that end , 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; and interviews. 
See 8 C.F.R. §§ 103, 204, 205, and 214 , 8 U .S.C . §§ 1103, 1155, 1184. 
(b)(6)
Matter of PCLI-C- Co. 
duties and coordinating upcoming projects, but that at the time of the site visit was reporting to a 
worksite located in Texas on a temporary basis to "coordinate field details, inspect the 
site with field subcontractors/consultants, and assist site inspectors with the reporting function, file 
system set-up and maintenance." The Petitioner also submitted, inter alia, an itinerary showing the 
projects that the beneficiary would be working on, along with the project locations and dates: 
Project Name Address Project Dates 
March 9, 2010-April4, 2012 
Jan 16, 2012-April1, 2012 
May 1, 2012-Sept 30, 2013 
Nov 12, 20 12-ongoing 
May 14, 2013-March 5, 2014 
We note that the worksites listed are located in metropolitan statistical areas differing from the 
worksite listed on the original petition and on the certified LCA. 
In response to the Director's NOIR, the Petitioner 
further explained that: 
[The Beneficiary] rents temporary housing when he is in Georgia, where the 
headquarters are, and he also rents temporary housing while he is temporarily assigned 
to jobs in other cities. He always returns to the office location in between 
project assignments. He can be at the office for several months 
coordinating jobs in the pre-construction stage and from there can be assigned to 
another project site thereafter. 
The Director found that the Petitioner did not establish that the job site locations listed in the 
itinerary could be considered "non-worksite" locations or "short-term placements" as described at 
20 CF.R. §§ 655.715, 655.735. As such, the petitioner was required to submit an LCA certified by 
the U.S. Depmiment of Labor for each work location listed in the itinerary prior to the Beneficiary 
beginning work at those locations. Because the Petitioner had 
not submitted a certified LCA 
corresponding to the listed job locations, the Director revoked the approval of the petition. 
Thereafter, the Petitioner submitted this appeal. 
2 
Matter of PCLI-C- Co. 
II. THE LCA AND H-1B VISA PETITION PROCESS 
In pertinent part, the Act defines an H -1 B nonimmigrant worker as: 
[A ]n alien ... who is coming temporarily to the United States to perform services ... 
in a specialty occupation described in section 214(i)(1) ... who meets the 
requirements for the occupation specified in section 214(i)(2) ... and with respect to 
whom the Secretary of Labor determines and cert?fies to the [Secretary of Homeland 
Security] that the intending employer has filed with the Secretary [of Labor] an 
application under section 212(n)(l) .... 
Section 101(a)(15)(H)(i)(b) ofthe Act (emphasis added). 2 
In tum, section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), requires an employer to 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 experience 
and qualifications who are performing the same services. 3 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 Wage & 
Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-97, 2009 WL 2371236, at *8 (Dep't of Labor Admin. 
Rev. Bd. July 30, 2009). 
Implemented through the LCA certification process, section 212(n)(1) 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, the actual rate of 
pay, and the place(s) of employment. 
To promote the U.S. worker protection goals of a statutory and regulatory scheme that allocates 
responsibilities sequentially between the U.S. Department of Labor (DOL) and the U.S. Department 
of Homeland Security (DHS), a prospective employer must file an LCA and receive certification 
from DOL before an H-1B petition may be submitted to U.S. Citizenship and Immigration Services 
(USCIS). 8 C.F.R. § 214.2(h)(4)(i)(B)(1); 20 C.F.R. § 655.700(b)(2). 4 If an employer does not 
2 In accordance with section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Pub. L. No. I 07-296, 
116 Stat. 2135, any reference to the Attorney General in a provision of the Act describing functions which were 
transferred from the Attorney General or other U.S. Department of Justice official to the U.S. Department of Homeland 
Security (DHS) by the HSA "shall be deemed to refer to the Secretary" of Homeland Security. See 6 U.S.C. 
§ 557 (2003) (codifying HSA, tit. XV,§ 1517); 6 U.S.C. § 542 note; 8 U.S.C. § 1551 note. 
3 The prevailing wage may be determined based on the arithmetic mean of the wages of workers similarly employed in 
the area of intended employment. 20 C.F.R. § 655.73l(a)(2)(ii). 
4 Upon receiving DOL's certification, the prospective employer then submits the certified LCA to USCIS with an H-1 B 
petition on behalf of a specific worker. 8 C.F.R. § 214.2(h)(2)(i)(A), (2)(i)(E), ( 4)(iii)(B)(I ). DOL reviews LCAs "for 
completeness and obvious inaccuracies," and will certify the LCA absent a determination that the application is 
incomplete or obviously inaccurate. Section 212(n)(l )(G)(ii) of the Act. In contrast, USC IS must determine whether the 
3 
(b)(6)
Matter of PCLI-C- Co. 
submit the LCA to USCIS in support of a new or amended H-1B petition, the process is incomplete 
and the LCA is not certified to the Secretary of Homeland Security. See section 101(a)(15)(H)(i)(b) 
of the Act; 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b); see also 56 Fed. Reg. 37,175, 
37,177 (1991); 57 Fed. Reg. 1316, 1318 (1992) (discussing filing sequence). 
In the event of a material change to the terms and conditions of employment specified in the original 
petition, the Petitioner must file an amended or new petition with USCIS with a corresponding LCA. 
Specifically, the pertinent regulation requires: 
The petitioner shall file an amended or new petition, with fee, with the Service Center 
where the original petition was filed to reflect any material changes in the terms and 
conditions of employment or training or the alien's eligibility as specified in the 
original approved petition. An amended or new H-1 C, H-1 B, H-2A, or H-2B 
petition must be accompanied by a current or new Department of Labor 
determination. In the case of an H-1 B petition , this requirement includes a new labor 
condition application. 
8 C.F.R. § 214.2(h)(2)(i)(E) (emphasis added). Furthermore , Petitioners must "immediately notify 
the Service of any changes in the terms and conditions of employment of a beneficiary which may 
affect eligibility" for H -1 B status and, if they will continue to employ the beneficiary, file an 
amended petition. 8 C.F.R. § 214.2(h)(ll)(i)(A). 
A change in the place of employment of a Beneficiary to a geographical area requmng a 
corresponding LCA be certified to DHS with respect to that beneficiary may affect eligibility for 
H-1B status and is, therefore, a material change for purposes of 8 C.F.R. § 214.2(h)(2)(i)(E) and 
(ll)(i)(A). When there is a material change in the terms and conditions of employment, the 
petitioner must file an amended or new H-IB petition with the corresponding LCA. 8 C.F.R. 
§ 214.2(h)(2)(i)(E); Matter o.fSimeio Solutions, 26 I&N Dec. 542 (AAO 2015). 
III. ANALYSIS 
As previously noted, the Petitioner has stated that in addition to the _ , Georgia location 
noted on the certified LCA, the beneficiary will be employed at worksites located in 
Texas; 
Texas; . Kentucky; and Oklahoma. These locations are in 
different metropolitan statistical areas than the location specified in the certified LCA. We agree 
with the Director that the Petitioner has not established that these locations represent non-worksite 
locations or short-term placement, as defined at 20 C.F.R. §§ 655.715, 655.735. 
A change in the terms and conditions of employment of a Beneficiary which may affect eligibility 
under section 101(a)(15)(H) of the Act is a material change. See 8 C.F.R. § 214.2(h)(2)(i)(E); see 
attestations and content of an LCA correspond to and support the H-1 B visa petition, including the specific place of 
employment. 20 C.F.R . § 655.705(b) ; see generally 8 C .F.R. § 214.2(h)(4)(i)(B) . 
4 
Matter of PCLI-C- Co. 
also id. § 214.2(h)(11 )(i)(A) (requiring that a Petitioner file an amended petition to notify USCIS of 
any material changes affecting eligibility of continued employment or be subject to revocation). 5 
Because section 212(n) of the Act ties the prevailing wage to the "area of employment," a change in 
the Beneficiary's place of employment to a geographical area not covered in the original LCA would 
be material for both the LCA and the Form I-129 visa petition, as such a change may affect 
eligibility under section 101(a)(15)(H) of the Act. See, e.g., 20 C.F.R. § 655.735(±). If, for example, 
the prevailing wage is higher at the new place of employment, the Beneficiary's eligibility for 
continued employment in H-1B status will depend on whether his or her wage for the work 
performed at the new location will be sufficient. As such, for an LCA to be effective and correspond 
to an H-1B petition, it must specify the Beneficiary's place(s) of employment. 6 
Having materially changed the Beneficiary's authorized place of employment to a geographical area 
not covered by the original LCA, the Petitioner was required to immediately notify USCIS and file 
an amended or new H-lB petition, along with a corresponding LCA certified by DOL, with both 
documents indicating the relevant change. 8 C.F.R. § 214.2(h)(2)(i)(E), (h)(11)(i)(A). By not filing 
an amended petition with a new LCA, or by attempting to submit a preexisting LCA that has never 
been certified to USCIS with respect to a specific worker, a Petitioner may impede efforts to verify 
wages and working conditions. Full compliance with the LCA and H-1B petition process, including 
adhering to the proper sequence of submissions to DOL and USCIS, is critical to the U.S. worker 
protection scheme established in the Act and necessary for H -1 B visa petition approval. 
IV. CONCLUSION AND ORDER 
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). Here, that burden has not been met. We will affirm the decision of the Director. The 
Form I-129 petition's approval is revoked pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(A)(1), (A)(3), and 
(A)(4).7 
ORDER: The appeal is dismissed. 
Cite as Matter ofPCLI-C- Co., ID# 13663 (AAO Oct. 8, 2015) 
5 The record here indicates that the new places of employment were not short-term placements. See generally 20 C.F.R. 
§§ 655.715, 655.735. We do not find that the new work locations fell under "non-worksite" locations as described at 
20 C.F.R. § 655.715 or short-term placements or assignments as described at 20 C.F.R. § 655.735. 
6 A change in the beneficiary's place of employment may impact other eligibility criteria, as well. For example, at the 
time of filing, the petitioner must have complied with the DOL posting requirements at 20 C.F.R. § 655.734. 
Additionally, if the beneficiary will be performing services in more than one location, the petitioner must submit an 
itinerary with the petition listing the dates and locations. 8 C.F.R. § 214.2(h)(2)(i)(B); see also id. § 103.2(b)(l). 
7 As the discussed ground for revocation is dispositive of the petitioner's continued eligibility, we need not address any 
ofthe additional issues we observe in the record of proceeding.