dismissed H-1B Case: Health Care

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U.S. Department of 110meland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: LIN 02 018 56082 Office: NEBRASKA SERVICE CENTER Date: .,
tlC 052006
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(H)(i)(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(i)(b)
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
www.uscls.gov
LIN 02 018 56082
Page 2
DISCUSSION: The director of the Nebraska Service.Center revoked the previously approved nonimmigrant
. visa petition. The matter is now before the Administrative.Appeals Office (AAO) on appeal. The appeal will
be dismissed. The petition will be revoked.
The petitioner provides long-term health care. It seeks to employ the beneficiary as a quality assurance
coordinator pursuant to section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act),
8 V.S.C: § 1101(a)(15)(H)(i)(b). The director revoked the petition in accordance with the provisions of
8 C.F.R. § 214.2(h)(11)(iii)(A).
The record of proceeding before the AAO contains: (1) the approved Form 1-129 and supporting
documentation; (2) the director's notice of intent to revoke (NOIR); (3) the director's August 17, 2005 notice
of revocation; and (4) the Form 1-290B. The AAO reviewed the record in its entirety before issuing its
decision.
On October 22, 2001, the petitioner filed a Form 1-129 petition to employ the beneficiary as a quality
assurance coordinator in the H-IB visa category. The director approved the petition on May 6, 2002 with the
validity dates of May 6, 2002 to November 1,2004.
On June 10, 2005, the director notified the petitioner of her intent to revoke approval of the H-lB petition
based on evidence, the .petitioner's May 9, 2003 letter and its May 24, 2004 addendum to the employment
contract, which indicated that the beneficiary was not working as a quality assurance coordinator. On August
17,2005 the director revoked the H-IB petition.
The issue before the AAO is whether the director appropriately revoked the H-l B petition.
Pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(A), a director shall issue a notice of intent to revoke an approved
Form 1-129 petition ifhe or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the capacity specified
in the petition, or if the beneficiary is no longer receiving training as specified in
the petition; or
(2) The statement of facts contained in the petition was not true and correct; 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.
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LIN 02 018 56082
Page 3
In her June 10, 2005 NOIR, the director stated that the proposed revocation of the petrtion under
8 C.F.R. § 214.2(h)(lI)(iii)(A) is based on evidence from the petitioner: a letter dated May 9, 2003 addressed to
the Nebraska Service Center and an addendum to the employment contract entered into between the petitioner
and the beneficiary. The director found the evidence to indicate that the beneficiary is employed as a registered
nurse, a nonspecialty occupation, instead of a quality assurance coordinator, as required by the approved H-l B
. petition.
Citizenship and Immigration Services (CIS) is authorized to revoke H-lB petitions approved in error or on the
basis of incorrect information. Revocation is also justified if the conditions under which qs approved the H-l B
petition have altered, either because of a change in the beneficiary's employment or because the petitioner
violated the (language of section 1 01(a)(l5)(H) of the Act, 8 U.S.C. § 1101(a)(l5)(H), or 8 C.F.R. § 214.2(h), or
the terms of the approved H-lB petition. A review of the NOIR indicates that the director revoked her approval
of the instant petition based on her determination that the petitioner's May 9, 2003 letter and May 24, 2004
I
addendum to the employment contract reflect that the beneficiary is not employed as a quality assurance
coordinator, as required by the Form 1-129 petition.
On appeal, counsel states that the evidence of record does not support revocation of the approved petition.
Counsel contends that the beneficiary is a licensed professional nurse working in the position of a quality
assurance coordinator.
The AAO finds the evidence of record supports the director's revocation of the petition under
8 C.F.R. § 214.2(h)(l1)(iii)(A). The petitioner's May 9, 2003 letter and May 24, 2004 addendum to the
employment contract were provided to the United States Consulate in.Manila, Philippines, by the beneficiary's
husband when he applied for a derivative H-4 visa. The petitioner's letter states that the beneficiary is employed
as a registered nurse with Heartland Health Care Center; it does not describe the beneficiary's job duties. The
addendum to the employment contract states that the beneficiary will be employed as a registered nurse with
Heartland Health Care Center, of which the petitioner is the parent company. The addendum does not describe
the beneficiary's job duties. The AAO agrees with director's finding that counsel's response to the NOm is not
persuasive in establishing that the beneficiary would work as a quality assurance coordinator with the petitioner.
Essentially, in the response to the NOID counsel contends that revocation of the petition, on the basis that the
petitioner's May 9, 2003 letter describes the position as a registered nurse performing quality assurance instead of
a quality assurance coordinator, is arbitrary, capricious, and unsupported by substantial evidence. The AAO
disagrees with counsel's interpretation of the letter: it does not describe the beneficiary as a registered nurse
performing quality assurance duties; it clearly states that the beneficiary is employed as a registered nurse at
Heartland Health Care Center - Plymouth Court. Thus, the letter does not evince that the beneficiary is employed
with the petitioner as a quality assurance coordinator. Furthermore, the addendum to the employment contract
reflects that the beneficiary would be employed as a registered nurse as it states "In the event of the death of
[beneficiary], Registered Nurse Heartland Health Care Center - Ann Arbor ... " Thus, the evidence reflects that
the beneficiary is employed as a registered nurse, not a quality assurance coordinator, as required by the H-l B
petition.
As related in the discussion above, the petitioner has failed to overcome the grounds of revocation of the
approved petition. Accordingly, the AAO shall not disturb the director's revocation of the petition.
':1
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LIN 02 018 56082
Page 4
The petitroner has the burden of proving eligibility for the benefit sought. Section 291 of the Act,
8 U.S.C. § 1361. The petitioner has met that burden.
ORDER: The appeal is dismissed. The petition is revoked.