dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 7867365 
Appeal of Vermont Service Center Decision 
Form I-129, Petition for Nonimmigrant Worker (H-IB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR. 13, 2020 
The Petitioner seeks to temporarily employ the Beneficiary under the H-IB 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 Director of the Vermont Service Center approved the petition, but later revoked the petition's 
approval after serving two notices of her intent to revoke (NOIR). In the revocation, the Director 
concluded that the Petitioner was not paying the Beneficiary the required proffered wage, and thus 
violated the terms and conditions of the approved petition. 
On appeal, the Petitioner submits a brief and an additional evidence, and continues to assert its 
eligibility. Upon de nova review, we will dismiss the appeal. 1 
I. REVOCATION AUTHORITY 
U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-lB petition 
pursuant to 8 C.F.R . § 214.2(h)(l l)(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 
(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 
1 We follow the preponderance of the evidence standard. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
(5) The approval of the petition violated paragraph (h) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for the revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
days of receipt of the notice. The director shall consider all relevant evidence 
presented in deciding whether to revoke the petition in whole or in part .... 
The regulation at 8 C.F.R. § 103.2(b)(l6)(i) states that: 
If the decision will be adverse to the applicant or petitioner and is based on derogatory 
information considered by the Service and of which the applicant or petitioner is 
unaware, he/she shall be advised of this fact and offered an opportunity to rebut the 
information and present information in his/her own behalf before the decision is 
rendered .... 
We find that the content of the Director's NOIRs comported with the regulatory notice requirements, 
as they provided sufficiently detailed statements that conveyed the proposed grounds for revocation 
encompassed by the regulation at 8 C.F.R. § 214.2(h)(l l)(iii)(A). The NOIRs also allotted the 
Petitioner the required time for the submission of evidence in rebuttal that is specified in the regulation 
at 8 C.F.R. § 214.2(h)(l l)(iii)(B). 
II. ANALYSIS 
We will now discuss the Director's ground for revoking the petition, i.e., that the Petitioner is not 
paying the Beneficiary the required wage pursuant to the terms of the approved petition and 
accompanying Labor Condition Application (LCA). 
In this case, the Petitioner stated that it would employ the Beneficiary as a software developer on a 
full-time basis. On the Form 1-129 petition and LCA, the Petitioner reported that the salary for the 
proffered position would be $74,131 per year. 
The petition was approved on January 24, 2018. Subsequent to the approval of the petition, USCIS 
officers conducted an administrative site visit to the Petitioner's offices. During the visit, the 
Petitioner's human resources director indicated that that Beneficiary was being paid a bi-weekly gross 
salary of $2,692.31, which equates to $70,000 annually. 2 
In July 2018, the Director issued a NOIR notifying the Petitioner that it was not paying the Beneficiary 
proper wages. In response, the Petitioner submitted copies of the Beneficiary's pay stubs from 
February 2018 to August 2018, copies of its State and Federal quarterly tax returns, and sworn 
statements from representatives of the Petitioner outlining the Beneficiary's pay and bonuses. The 
Beneficiary's pay stubs indicated a consistent bi-weekly gross salary of $2,692.31, except for the 
2 In a "Statement of Facts" dated April 18, 2018, the Beneficiary stated that during the site visit, he confirmed to a USCIS 
officer that his annual salary was $70,000. 
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period from February 3, 2018 to February 16, 2018, which demonstrated a gross payment of$3,l 92.31. 
According to the Petitioner, this pay period, the first of the Beneficiary's official H-lB employment 
with the Petitioner, included a $500 bonus. No explanation for the reason for this bonus was provided. 
The Petitioner further stated that "the employment agreement with the Beneficiary was based upon 
salary plus a guaranteed bonus to be paid at the end of the Company's fiscal year (September 30th, 
2018)." The Petitioner further indicated that "in addition to this guaranteed compensation, there was 
also a discussion of further discretionary bonuses based upon Company production." We note that, 
despite the Director's request, the Petitioner did not submit a copy of the employment agreement. 
The Director issued a second NOIR in March 2019, again requesting evidence demonstrating that the 
Beneficiary was receiving the proffered wage. The Director specifically requested documentation 
pertaining to the guaranteed bonus referred to in the Petitioner's response to the first NOIR. In 
response, the Petitioner submitted the Beneficiary's W-2 form for 2018, demonstrating annual wages 
of $69,030.73. The Petitioner also submitted additional payroll records showing that the Beneficiary 
had received two additional bonuses ($5,000 on October 5, 2018, and $3,000 on December 7, 2018, 
respectively, which were included in the annual wage total). 
Moreover, the Petitioner claimed that the Beneficiary received a salary increase to $78,000 on 
December 10, 2018, and an additional increase to $88,000 on April 1, 2019. No documentary evidence 
confirming or corroborating the guaranteed nature of these salary increases was submitted. 
The Director found the evidence submitted insufficient and revoked the approval of the petition on the 
basis that the Petitioner is not paying the Beneficiary the wages stated in the approved petition and the 
accompanying LCA. The Director acknowledged that the Petitioner paid the Beneficiary a total of 
$69,030.73 for 2018, but noted that when the three bonuses of $500, $5,000 and $3,000 ($8,500 total) 
were subtracted, the remaining amount ($60,530.73 for 23 pay periods, as the Beneficiary did not start 
his employment until February 4, 2018) did not equate to the wages stated in the approved petition. 
The Director further noted that the Petitioner submitted no evidence to establish that the bonuses 
totaling $8,500 were guaranteed. 
On appeal, the Petitioner asserts that the Director's finding "is incorrect and is not in accordance with 
the facts of this matter." Specifically, the Petitioner asserts that the Director's decision to revoke the 
petition's approval on a "no evidence" standard was erroneous because "extensive evidence" that the 
bonus to the Beneficiary was guaranteed had been submitted. 
The primary rules governing an H-lB petitioner's wage obligations appear in the U.S. Department of 
Labor regulations at 20 C.F.R. § 655.731. The regulations generally require that the H-lB employer 
fully pay the LCA-specified H-lB annual salary: (1) in prorated installments to be disbursed no less 
than once a month, (2) in 26 bi-weekly pay periods, if the employer pays bi-weekly, and (3) within 
the work year to which the salary applies. 
The pertinent part of20 C.F.R. § 655.73l(c) also states the following: 
Satisfaction of required wage obligation. 
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(1) The required wage must be paid to the employee, cash in hand, free and 
clear, when due, except that deductions made in accordance with 
paragraph ( c )(9) of this section may reduce the cash wage below the 
level of the required wage. Benefits and eligibility for benefits provided 
as compensation for services must be offered in accordance with 
paragraph (c)(3) of this section. 
(2) "Cash wages paid," for purposes of satisfying the H-lB required wage, 
shall consist only of those payments that meet all the following 
criteria: 
(i) Payments shown in the employer's payroll records as 
earnings for the employee, and disbursed to the employee, 
cash in hand, free and clear, when due, except for deductions 
authorized by paragraph ( c )(9) of this section; 
(ii) Payments reported to the Internal Revenue Service (IRS) as 
the employee's earnings, with appropriate withholding for 
the employee's tax paid to the IRS (in accordance with the 
Internal Revenue Code of 1986, 26 U.S.C. 1, et seq.); 
(iii) Payments of the tax reported and paid to the IRS as required 
by the Federal Insurance Contributions Act, 26 U.S.C. 3101, 
et seq. (FICA). The employer must be able to document that 
the payments have been so reported to the IRS and that both 
the employer's and employee's taxes have been paid .... 
(iv) Payments reported, and so documented by the employer, as 
the employee's earnings, with appropriate employer and 
employee taxes paid to all other appropriate Federal, State, 
and local governments in accordance with any other 
applicable law. 
(v) Future bonuses and similar compensation (i.e., unpaid but 
to-be-paid) may be credited toward satisfaction of the 
required wage obligation if their payment is assured (i.e., 
they are not conditional or contingent on some event such as 
the employer's annual profits). Once the bonuses or similar 
compensation are paid to the employee, they must meet the 
requirements of paragraphs (c)(2)(i) through (iv) of this 
section (i.e., recorded and reported as "earnings" with 
appropriate taxes and FICA contributions withheld and 
paid). 
(3) Benefits and eligibility for benefits provided as compensation for 
services ( e.g., cash bonuses; stock options; paid vacations and holidays; 
health, life, disability and other insurance plans; retirement and savings 
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plans) shall be offered to the H-1 B nonimmigrant( s) on the same basis, 
and in accordance with the same criteria, as the employer offers to U.S. 
workers. 
(i) For purposes of this section, the offer of benefits "on the 
same basis, and in accordance with the same criteria" means 
that the employer shall offer H-lB nonimmigrants the same 
benefit package as it offers to U.S. workers, and may not 
provide more strict eligibility or participation requirements 
for the H-1 B nonimmigrant( s) than for similarly employed 
U.S. workers(s) ( e.g., full-time workers compared to full­
time workers; professional staff compared to professional 
staff). H-1 B nonimmigrants are not to be denied benefits on 
the basis that they are "temporary employees" by virtue of 
their nonimmigrant status. An employer may offer greater 
or additional benefits to the H-1 B nonimmigrant( s) than are 
offered to similarly employed U.S. worker(s), provided that 
such differing treatment is consistent with the requirements 
of all applicable nondiscrimination laws ( e.g., Title VII of 
the 1964 Civil Rights Act, 42 U.S.C. 2000e-2000el 7). 
Offers of benefits by employers shall be made in good faith 
and shall result in the H-1 B nonimmigrant( s)' s actual receipt 
of the benefits that are offered by the employer and elected 
by the H-lB nonimmigrant(s). 
( 4) For salaried employees, wages will be due in prorated installments ( e.g., 
annual salary divided into 26 bi-weekly pay periods, where employer 
pays bi-weekly) paid no less often than monthly except that, in the event 
that the employer intends to use some other form of nondiscretionary 
payment to supplement the employee's regular/pro-rata pay in order to 
meet the required wage obligation (e.g., a quarterly production bonus), 
the employer's documentation of wage payments (including such 
supplemental payments) must show the employer's commitment to 
make such payment and the method of determining the amount thereof: 
and must show unequivocally that the required wage obligation was met 
for prior pay periods and, upon payment and distribution of such other 
payments that are pending, will be met for each current or future pay 
period .... 
Under the H-lB program, a petitioner must offer a beneficiary wages that are at least the actual wage 
level paid by the petitioner to all other individuals with similar experience and qualifications for the 
specific employment in question, or the prevailing wage level for the occupational classification in the 
area of employment, whichever is greater, based on the best information available as of the time of 
filing the application. See section 212(n)(l)(A) of the Act, 8 U.S.C. § 1182(n)(l)(A). The prevailing 
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wage rate is defined as the average wage paid to similarly employed workers in a specific occupation 
in the area of intended employment. 
Moreover, the regulations require a petitioner to pay the required wage to the beneficiary "cash in 
hand, free and clear, when due." 20 C.F.R. § 655.73l(c)(l). In addition, the regulations at 20 C.F.R. 
§ 655. 73 l(c)(2) set forth several criteria for the purposes of satisfying the H-lB required wage or "cash 
wages paid," including the requirements that the payments be: shown in the employer's payroll records 
as earnings; properly reported as earnings to the IRS with required taxes paid; and assured, i.e., not 
conditional or contingent on some event. Like the Director, we find that the Petitioner's payment to 
the Beneficiary of $8,500 in bonuses during 2018, and its subsequent claims of salary increases in 
December 2018 and April 2019 do not go towards satisfying the payment of the required wage, as 
required by the approved petition and LCA. 
Foremost, the record does not adequately demonstrate that the bonuses are "guaranteed." The 
Petitioner refers to an employment agreement in which the Beneficiary's bonus structure was defined. 
Despite the Director's specific request for a signed copy of that document in the second NOIR, the 
Petitioner did not submit it. Notably, there is no other documentation in the record defining a 
guaranteed bonus structure, and the statements of the Petitioner specifically acknowledge the potential 
for (nonguaranteed) bonuses based on the Petitioner's production. Although the Petitioner states that 
bonuses were guaranteed to the Beneficiary during the H-1 B filing process, the record does not contain 
evidence to corroborate this claim. No documentation in the record states that a guaranteed or 
minimum bonus amount must be paid to the Beneficiary. 
The unknown, unguaranteed amount of bonuses going forward, as well as the claimed salary increases 
are critical to the matter at hand, as the Petitioner is requesting to employ the Beneficiary through 
August 17, 2020. Although the Petitioner submitted pay stubs evidencing the payment of bonuses and 
an increase in pay to the Beneficiary for the pay periods referenced, the record is devoid of evidence 
to establish that these payments are accurate reflections of the Beneficiary's salary, and were received 
"cash in hand, free and clear," and was "assured, i.e., not conditional or contingent on some event." 
20 C.F.R. § 655.731(c)(l)-(1). This finding is regardless of the fact that the Petitioner actually paid 
these bonuses in February 2018, October 2018, and December 2018, as the Petitioner's past payments 
do not necessarily reflect upon the Petitioner's future payments. 
The evidence in the record does not demonstrate that the Petitioner paid the Beneficiary the required 
wages and complied with the terms and conditions of the approved petition and LCA. For this reason, 
we will not disturb the Director's decision. The approval of the petition remains revoked pursuant to 
8 C.F.R. § 214.2(h)(l l)(iii)(A). 
IV. 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. Upon review of the record, we determine 
that the Director properly revoked the approval of the petition pursuant to 8 C.F.R. 
§ 214.2(h)(l 1 )(iii)(A). The petition will remain revoked and the appeal dismissed for the above stated 
reason. 
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ORDER: The appeal is dismissed. 
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