dismissed H-1B Case: Medical Equipment Sales

MATTER OF 0-M-S-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 31,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
I 
The Petitioner, a company that sells medical diagnostics equipment, seeks. to extend the Beneficiary's 
temporary employment as a "sales manager" under the H -1 B nonimmigrant classification for 
specialty occupations. See Immigration and Nationality Act (the Act) section 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. However, in response to new 
evidence and upon subsequent review, the Director issued a notice of intent to revoke (NOIR), and 
ultimately revoked, approval of the petition pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(A)(3), finding 
that the Petitioner had violated the terms and conditions of the approved petition. 
The matter is now before us on appeal. In its 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 
A. Revocation Authority 
U.S. Citizenship and Immigration Services (USCIS) 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: 
(1) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition ... ; or 
Matter of 0-M-S-, 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. 
B. The LCA and H-lB Petition Process 
In pertinent part, the Act defines an H-lB nonimmigrant worker as: 
[A ]n alien ... who is corning 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 1 that the intending employer has filed with the Secretar)l [of Labor 1 an 
application under section 212(n)(l) ... . ' 
Section.l0l(a)(15)(H)(i)(b) ofthe Act (emphasis added).1 
In turn, section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A), requires an employer to pay an 
H-lB 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.2 'See 20 C.P.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 Labor Condition Application (LCA) certification process, section 
212(n)(l) is intended to protect U.S. workers' wages by eliminating economic incentives or 
1 In accordance with section 1517 oftitle XV ofthe Homeland Security Act of2002 (HSA), Pub. L. No. 107-296, 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 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. 
2 The prevailing wage may be determined based on the arithmetic mean of the wages of workers similarly employed in 
the area of intended employment. io C.F.R. § 655.73l(a)(2)(ii). 
"2 
Matter of 0-M-S-, Inc. 
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 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 USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B)(l); 20 C.F.R. § 655.700(b)(2).3 If an 
employer does not 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) ofthe 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, a 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-lB, 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)(11)(i)(A). 
A change in the place of employment of a beneficiary to a geographical area requiring a 
corresponding LCA be certified to DHS with respect to that beneficiary may affect eligibility for 
H-IB status and is, therefore, a material change for purposes of 8 C.F.R. § 214.2(h)(2)(i)(E) and 
3 Upon receiving DOL's certification, the prospective employer then submits the certified LCA to USCIS with an H-IB 
petition on behalf of a specific worker. 8 C.F.R. § 214.2(h)(2)(i)(A), (2)(i)(E), (4)(iii)(B)(l). 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, USCIS must determine whether the 
attestations and content of an LCA correspond to and support the H-1 B visa petition, including the speci,fic place of 
employment. 20 C.F.R. § 655.705(b); see gene~ally 8 C.F.R. § 214.2(h)(4)(i)(B). 
3 
Matter of 0-M-S-, Inc. 
(ll)(i)(A). When there is a material change in the terms and conditions of employment, a 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 ofSimeio Solutions, 26 I&N Dec. 542 (AAO 2015). 
The regulation at 20 C.F.R. § 655.715(1)(ii) defines "Place of employment" as follows: "Place of 
employment means the worksite or physical location where the work actually is performed by the H­
IB, H-IBI, or E-3 nonimmigrant." However, it also states that some temporary locations will not be 
considered a Beneficiary's "Place of employment." It states, in pertinent part: 
(1) The term does not include any location where either of the following criteria-­
paragraph (1 )(i) or (ii)--is satisfied: 
(i) Employee developmental activity. An H-lB worker who is stationed and 
regularly works at one location may temporarily be at another location for a 
particular individual or employer-required developmental activity such as a 
management conference, a staff seminar, or a formal training course (other 
than "on-the-job-training" at a location where the employee is stationed and 
regularly works). For the H-IB worker participating in such activities, the 
location of the activity would not be considered a "place of employment" or 
"worksite," and that worker's presence at such location--whether owned or 
controlled by the employer or by a third party--would not invoke H-IB 
program requirements with regard to that employee at that location. However, 
if the employer uses H-IB nonimmigrants as instructors or resource or support 
staff who continuously or regularly perform their duties at such locations, the 
locations would be "places of employment" or "worksites" for any such 
employees and, thus, would be subject to H-lB program requirements with 
regard to those employees. 
(ii) Particular worker's job functions. The nature and duration of an H-IB 
nonimmigrant's job functions may necessitate frequent changes of 
location with little time spent at any one location. For such a worker, a 
location would not be considered a "place of employment" or "worksite" 
ifthe following three requirements (i.e., paragraphs (l)(ii)(A) through (C)) 
are all met-
(A) The nature and duration of the H-lB worker's job functions 
mandates his/her. short-time presence at the location. For this 
purpose, either: 
(1) The H-IB nonimmigrant's job must be peripatetic in 
nature, in that the normal duties of the worker's 
occupation (rather than the nature of the employer's 
business) requires frequent travel (local or non­
local) from location to location; or 
4 
(b)(6)
Matter of 0-M-S-, Inc. 
(2) The H-1B worker's duties must require that he/she 
spend most work time at one location but 
occasionally travel for short periods to work at other 
locations; and 
(B) The H-1B worker's presence at the locations to which he/she 
travels from the "horne" worksite is on a casual, short-term 
basis, which can be recurring but not excessive (i.e., not 
exceeding five consecutive workdays for any one visit by a 
peripatetic worker, or 10 consecutive workdays for any one 
visit by a worker who spends most work time at one location 
and travels occasionally to other locations); and 
(C) The H -1 B nonimmigrant is not at the location as a 
"strikebreaker" (i.e., the H-1B nonimmigrant is not 
performing work in an occupation in which workers are on 
strike or lockout). 
II. PROCEDURAL HISTORY 
On the H-1B petition, the Petitioner indicated that the Beneficiary would be employed as a sales 
manager at its location in Georgia. The LCA submitted is certified for employment in 
Georgia, and not certified for employment in any other area. The petition was selected for 
an administrative inquiry, which took place seven months after the petition was approved. The 
officer conducting the inquiry spoke with the Petitioner's immigration specialist, who stated that the 
Beneficiary was working in Florida, rather than at the Georgia location for 
which the LCA was certified. 
The Director determined that the Petitioner had violated the terms and conditions oJ the approved 
H-lB petition and presented these findings, among others, in her NOIR. In response, the Petitioner 
asserted, in relevant part, that the Beneficiary's employment is peripatetic in nature and, that his 
employment in is not a "place of employment" under 20 C.F.R. § 655.715(l)(ii). 
The Director did not find the Petitioner's response persuasive. She found that because the 
Beneficiary worked at his residence in Florida, rather than at the Georgia 
location, as specified in the H-1B petition, the Petitioner had violated the terms and conditions of the 
approved petition, and revoked approval of the H-1B petition pursuant to 8 C.F.R. 
§ 214.2(h)(11)(iii)(A)(3). 4 
4 While it appears she could have done so, the Director did not also initiate revocation-on-notice proceedings pursuant to 
8 C.F.R. § 214.2(h)(ll )(iii)(A)(J), which permits such proceedings when a beneficiary is "no longer employed in the 
capacity specified in the petition." · 
5 
(b)(6)
Matter of 0-M-S- , Inc. 
III. ANALYSIS 
Upon review of the record, we determine that the Director properly revoked the approval of the 
petition because the Petitioner had violated the terms and conditions of the approved petition, 
8 C.F.R. § 214.2(h)(11)(iii)(A)(3). 
On the H-1 B petition, the LCA, and other supporting documentation, the Petitioner had represented 
that it would employ the Beneficiary at the Petitioner's location in Georgia:, and the petition 
was approved from September 16, 2011, to September 15, 2014. However, at the time of 
administrative inquiry on January 26, 2012, it was discovered that the Beneficiary was performing 
his duties in Florida, a location not previously identified on the H-lB petition and the 
LCA. 
On appeal, the Petitioner again contends that the Beneficiary's employment falls under the 
'"placement of employment' exception for a peripatetic worker." Specifically, the Petitioner asserts 
that the Beneficiary's position requires "frequent travel in.Latin America and the Caribbean to visit 
customers, potential customers, sales contacts and distributors." The Petitioner states that the 
Beneficiary "spent approximately 75% of his time on the road, with frequent changes of location, 
and with little time -- generally less than a day or two - spent at any one location" and he "did not 
spend more than five consec}ltive business days at any one location." The Petitioner further 
indicates that "because the majority of [the Beneficiary]'s work-related travel was to customer 
locations in Latin America and the Caribbean, [the Beneficiary] maintained a residence in 
Florida, but reported to [the Petitioner's] headquarters in Georgia." 
The record establishes that the proffered position requires business travel, and that the Beneficiary 
does, in fact, travel. However, the Petitioner has not sufficiently demonstrated that the Beneficiary' s 
location in Florida, is not a "place of employment" as defined at 20 C.F.R. § 655.715. 
Specifically, the term "place of employment" does not include any location where (1) it is a place of 
"employee developmental activity"; or (2) the nature and duration of the H-IB worker's job 
functions necessitate frequent changes of location with little time spent at any location. Here, the 
Petitioner does not indicate that is a location of employee developmental activity. 
Instead, the Petitioner asserts that the Beneficiary's job duties require frequent changes of location 
under 20 C.F.R. § 655.715(1)(ii). However, to satisfy 20 C.F.R. § 655.715(1)(ii), the Petitioner must 
satisfy all subsections of (A), (B), and (C) under 20 C.F.R. § 655.715(1)(ii), and it has not done so. 
For example, 20 C.F.R. § 655.715(1)(ii)(B) is satisfied ifthe Petitioner shows that the Beneficiary's 
travel from the "home" worksite is on a "casual short-term basis," which for a peripatetic worker, 
does not exceed 5 consecutive workdays for any one visit. In this case, the Beneficiary's "home" 
worksite is the Petitioner's location in Georgia. In the case of a peripatetic worker, which 
the Petitioner claims the Beneficiary to be, his presence at the location must be shown 
not to exceed 5 consecutive work days for any one visit. 
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(b)(6)
Matter of 0-M-S-, Inc. 
The Petitioner has not sufficiently demonstrated that the Beneficiary's work in has 
never exceeded 5 consecutive workdays. The record contains copies of wage and tax statements, 
pay roll records, and tax returns from 2011 to 2014, which indicate that the Beneficiary's address 
was in Florida during validity of this petition's employment period. Further, in 
response to the NOIR in this matter, the Petitioner provided a printout of the Beneficiary's arrivals 
and departures at various U.S. port of entry. For example, the Beneficiary: 
1) Arrived in on March 22, 2014, and departed on April 9, 2014, a period that 
encompassed 18 days including 12 working days, even assuming that he did not work on the 
day of his arrival or the day of his departure; and 
2) Arrived in on April 9, 2014, and departed on May 7, 2014, a period that encompassed 
28 days including 19 working days, even assuming that he did not work on the day of his 
arrival or the day of his departure. 
We observe that the Beneficiary's international arrival and departure records do not sufficiently 
demonstrate where the Beneficiary may have worked. The Beneficiary may have traveled within the 
United States during those periods and worked elsewhere for some period of time. However, the 
burden is on the Petitioner to show that the Beneficiary worked no more than 5 consecutive days at 
the location, which it has not done. Here, the Petitioner has not demonstrated that the 
Beneficiary's workplace, where the Petitioner concedes that the Beneficiary worked, is 
not a "place of employment" within the meaning of 20 C.F .R. § 65 5. 715. 
I 
Therefore, we find that the Petitioner has not demonstrated that the Beneficiary's place of 
employment was consistent with the terms and conditions of the approved H-1B petition. Rather, 
the Beneficiary appears to have routinely worked in although the H-1B petition states 
that he would work only in Georgia.5 
On appeal, the Petitioner indicates that the Beneficiary's assigned sales region expanded to United 
States and Canada, and as of August 2014, the Beneficiary has relocated to Georgia; 
therefore, the issues identified in the NOIR were moot by the time the NOIR was issued. The 
Petitioner further asserts that the NOIR was untimely. While we acknowledge that the issuance of 
NOIR was delayed following the administrative inquiry, we find that these circumstances do not 
absolve the Petitioner of its legal requirements to comply with the terms and conditions of the 
approved petition, and if unable to do so, to file a new or amended petition to reflect the material 
changes to the Beneficiary's employment and eligibility. See 8 C.F.R. § 214.2(h)(2)(i)(E). 
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)(U)(i)(A). 
5 The Petitioner did not claim, and we not find, that the Beneficiary's home office in 
short-term placements or assignments, as described at 20 C.F.R. § 655.735. 
Florida, falls under 
Matter of 0-M-S-, Inc. 
We find that, fully considered in the context of the entire record of proceedings, neither the 
Petitioner's response to the NOIR nor its submissions on appeal have overcome the grounds 
specified in the NOIR for revoking the petition. Consistent with 8 C.F.R. § 214.2(h)(11)(iii)(A)(3), 
the appeal will be dismissed and approval of the H-1B petition will remain revoked. 
IV. SPECIALTY OCCUPATION 
As the Petitioner did not overcome the Director's stated ground for revocation, we need not fully 
address other issues evident in the record. That said, we wish to identify an additional issue to 
inform the Petitioner that this matter should be addressed in any future proceedings. As these issues 
· indicate that approval of the H-1B petition violated 8 C.F.R. § 214.2(h), the Director could initiate 
revocation-on-notice proceedings pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(A)(5) upon proper notice 
to the Petitioner of her intent to do so. See 8 C.F.R. § 214.2(h)(11)(iii)(B). 
The record as currently constituted does not establish that the proffered position is a specialty 
occupation. In the H-1B petition, the Petitioner stated that the Beneficiary will serve as a "sales 
manager," and on the LCA submitted in support of the H-1B petition, the Petitioner designated the 
proffered position under the occupational category "Sales Managers" corresponding to the Standard 
Occupational Classification code 11-2022.00. 
We recognize the U.S. Department of Labor's (DOL) Occupational Outlook Handbook (Handbook) as 
an authoritative source on the duties and educational requirements of the wide variety of occupations 
that it addresses.6 The Handbook states the following with regard to the educational requirements 
necessary for entrance into this occupation: 
Most sales managers have a bachelor's degree, although some have a master's degree. 
Educational requirements are less strict for job candidates who have significant work 
experience. Courses in business law, management, economics, accounting, finance, 
mathematics, marketing, and statistics are advantageous. 
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2016-17 ed., 
"Sales Managers," http://www.bls.gov/oohlmanagement/sales-managers.htm#tab-4 (last visited Aug. 
29, 2016). 
The Handbook does not indicate that a bachelor's degree in a specific specialty, or the equivalent, is 
normally required for sales managers. Absent evidence that. the proffered position satisfies one of the 
6 All of our references are to the 2016-2017 edition of the Handbook, which may be accessed at the Internet site 
http://www.bls.gov/ooh/. We do not, however, maintain that the Handbook is the exclusive source of relevant 
information. That is, the occupational category designated by the Petitioner is considered as an aspect in establishing the 
general tasks and responsibilities of a proffered position, and USC IS regularly reviews the Handbook on the duties and 
educational requirements of the wide variety of occupations that it addresses. To satisfy the first criterion, however, the 
burden of proof remains on the Petitioner to submit sufficient evidence to support a finding that its particular position 
would normally have a minimum, specialty degree requirement, or its equivalent, for entry. 
8 
Matter of 0-M-S-, Inc. 
alternative criteria available under 8 C.F.R. § 214.2(h)(4)(iii)(A), the instant petition should not have 
been approved for this additional reason. 
This matter should be explored fully in the event the Petitioner is able to overcome the Director's 
stated ground for revocation. 
V. CONCLUSION 
The Director properly revoked the approval of the petition. 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of 0-M-S-, Inc., ID# 17689 (AAO Aug. 31, 20 16) 
9