dismissed H-1B Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 25528010 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for Nonimrnigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 13, 2023 
The Petitioner seeks to extend the Beneficiary's temporary employment under the H-lB nonirnrnigrant 
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-lB 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 Vermont Service Center Director initially approved then revoked the approval of the Form 1-129, 
Petition for a Nonimrnigrant Worker (petition), concluding that the Petitioner did not establish that it 
paid the Beneficiary the required wage. The matter is now before us on appeal. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the 
Act; Matter ofChawathe, 25 l&N Dec. 369,375 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we 
will dismiss the appeal. 
After reviewing the entire record, we adopt and affirm the Director's revocation decision with the 
added comments below . See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Chen 
v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996) ("[W]e join eight of our sister circuits in ruling that the Board 
[of Immigration Appeals] need not write at length merely to repeat the IJ's [Immigration Judge's] 
findings of fact and his reasons for denying the requested relief, but, rather, having given 
individualized consideration to a particular case, may simply state that it affirms the IJ's decision for 
the reasons set forth in that decision."). The Director laid out the facts of this case, and we incorporate 
them here by reference . 
We begin noting the Beneficiary worked for this Petitioner based on a previous H-1 B petition and this 
was a request to extend her status in the same position . That previous petition had a separate U.S. 
Department of Labor (DOL) ETA Form 9035 & 9035E, Labor Condition Application for 
Nonimmigrant Workers (LCA) in which the wage the Petitioner was required to pay to the Beneficiary 
was at a lower annual rate than the wage required in the current petition. 
On the current petition and its associated LCA, the Petitioner committed to compensate the Beneficiary 
with a yearly wage of $84,552. After the Director approved the petition, agency officials performed 
an administrative site visit in which they determined the Petitioner was compensating the Beneficiary 
at a rate lower than was certified on the LCA and the petition. The Director afforded the Petitioner an 
opportunity to demonstrate it was compensating her at the wage they attested to through issuing a 
notice of intent to revoke (NOIR) the petition's approval. But the Director found the response to be 
inadequate to establish they were paying the Beneficiary in accordance with the approved LCA and 
petition and they revoked the approval. 
A primary purpose ofDOL's LCA wage requirement is "to protect U.S. workers' wages and eliminate 
any economic incentive or advantage in hiring temporary foreign workers." See Labor Condition 
Applications and Requirements for Employers Using Nonimmigrants on H-lB Visas in Specialty 
Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of 
Aliens in the United States, 65 Fed. Reg. 80,110, 80, 110-11 (proposed Dec. 20, 2000) (to be codified 
at 20 C.F.R. pts. 655-56) (indicating that the wage protections in the Act seek "to protect U.S. workers' 
wages and eliminate any economic incentive or advantage in hiring temporary foreign workers" and 
that this "process of protecting U.S. workers begins with [the filing of an LCA] with [DOL]."). See 
also Aleutian Cap. Partners, LLC v. Scalia, 975 F.3d 220, 231 (2d Cir. 2020) (quoting 20 C.F.R. 
§ 655.0 and finding that a primary goal of U.S. non-immigrant foreign worker programs like the H-1 B 
Program is to ensure that "the employment of the foreign worker in the job opportunity will not 
adversely affect the wages or working conditions of similarly employed U.S. workers."). 
DOL's LCA wage requirement also serves to protect H-lB workers from wage abuses. A petitioner 
submits the LCA to the DOL to demonstrate that it will 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 duties, experience, and qualifications. Section 
212(n)(l) of the Act; 20 C.F.R. § 655.73 l(a); Venkatraman v. REI Sys., Inc., 417 F.3d 418,422 & n.3 
( 4th Cir. 2005); Patel v. Boghra, 369 F. App 'x 722, 723 (7th Cir. 201 O); 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). 
Regarding the payment of wages, the pertinent part of 20 C.F.R. § 655.731(c) provides: 
Satisfaction of required wage obligation. 
(1) The required wage must be paid to the employee, cash in hand, free and 
clear, when due .... 
The same regulation at (c)(5)-(6) states: 
(5) 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), 
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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 .... 
(6) For hourly-wage employees, the required wages will be due for all hours 
worked and/or for any nonproductive time (as specified in paragraph 
( c )(7) of this section) at the end of the employee's ordinary pay period 
(e.g., weekly) but in no event less frequently than monthly. 
Although the Petitioner presents several arguments within their appeal brief, none adequately resolve 
the issue at hand: whether they were properly compensating the Beneficiary as they attested on the 
relevant forms at a yearly or annual basis of $84,552. Based on the questions raised throughout this 
process, and based on a lack of adequate evidence from the Petitioner, they have not met their burden 
to show that they did-or would-compensate her at the required annual wage rate. Demonstrating 
the amount they would pay to the Beneficiary should be a straightforward process and not some other 
exercise in which her annual wage is ensconced within a set of complicated factors; regardless of 
whether the complicating nature is purposeful. 
We first note that both on the LCA and the petition, the petitioning organization attested it would pay 
the Beneficiary using a yearly wage rate and 20 C.F.R. § 655.731(c)(5) provides the method by which 
the Petitioner must compensate her (i.e., "in prorated installments ... show[ing] unequivocally that 
the required wage obligation was met for prior pay periods and ... will be met for each current or 
future pay period .... "). So, the Petitioner was required to show they provided the Beneficiary with 
equal and proportional installments showing without equivocation that they had already paid her the 
required yearly wage. Instead, they provided evidence that they pay the Beneficiary using an hourly 
method. 
Even setting that aside, of greater concern is the rate at which the Petitioner paid the Beneficiary, and 
we agree with the Director that they have not shown they complied with the regulations. The Director 
also addressed the bonus the Petitioner provided to the Beneficiary, which we note only occurred after 
they received the NOIR and they were put on notice of the pay deficiency. Due to the method by 
which the Petitioner compensated the Beneficiary, to meet the $84,552 annual wage they were required 
to pay her, it was necessary for them to compensate the Beneficiary at an hourly rate that was higher 
than the corresponding hourly rate listed for this occupation and location on the Foreign Labor 
Certification Data Center Online Wage Library. 1 
Given the timing of the Beneficiary's bonus-after the Director issued the NOIR-it appears as if it 
was made only to make a deficient petition conform to the H-lB requirements. A petitioner may not 
make material changes to make an apparently deficient set of facts to subsequently conform to U.S. 
FLC Wage Results, Foreign Labor Certification Data Center (Feb. 13, 2023), 
https://www.flcdatacenter.com/OesQuickResults.aspx?code= l 5- l l 32&area=4 7260&year=22&source= 1. 
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Citizenship and Immigration Services requirements. Cf Matter of Izummi, 22 T&N Dec. 169, 175 
(Assoc. Comm'r 1998). As we noted, the Director informed the Petitioner that such bonuses or 
compensation must be assured and cannot be contingent on some event. See 20 C.F.R. 
§ 655.731(c)(2)(v). 
Here, the Petitioner has not established that they complied with the regulatory requirements at 
20 C.F.R. § 655.73 l(c). Not only has the Petitioner failed to demonstrate they compensated the 
Beneficiary in the manner they attested to on the LCA and the petition, but they also did not 
demonstrate such compensation was at a rate that would result in an annual wage of $84,552. Such a 
failure warrants a revocation of the petition's approval. We conclude the evidence in the record does 
not establish that the Beneficiary was paid the requisite wage, "cash in hand, free and clear, when 
due." See 20 C.F.R. § 655.73l(c)(l). Such a showing is the Petitioner's burden to make, and they 
have not done so here. 
ORDER: The appeal is dismissed. 
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