remanded H-1B Case: Electronics Engineering

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rrn. 3000 
Washington, DC 20529 
U. s. Citizenship 
and Immigration 
Services 
FILE: WAC 04 03 1 51601 Office: CALIFORNIA SERVICE CENTER Date: JUN 2 8 7mfi 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1 lOl(a)(lS)(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 
WAC 04 031 51601 
Page 2 
DISCUSSION: The director of the service center denied the nonimmigrant visa petition and the matter is now 
before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn. The 
petition will be remanded for the filing of a complaint with DOL and the entry of a new decision after DOL's 
determination on the complaint. 
The petitioner is a company dedicated to the use of imaging sensor technologies for the research, 
development, and commercialization of "next generation" medical diagnostic instruments and advanced 
radiation measurement instrumentation for space and terrestrial scientific applications by government 
agencies. Citizenship and Immigration Services (CIS) approved the previous petition for the petitioner to 
employ the beneficiary as an H-1B nonirnrnigrant worker in a specialty occupation - electronics engineer - 
pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
g 1 101 (a)(l S)(H)(i)(b). In order to continue this employment beyond the period approved in the initial 
petition, the petitioner endeavors to continue the beneficiary's H-IB classification and extend her stay. 
The director's denial of the petitioner's request for extension of the validity of the original petition rests on 
evidence of record that the petitioner has been paying less than the salary that it had stated it would pay the 
beneficiary. As noted by the director, at part 5 of the instant Form 1-129 the petitioner stated the beneficiary's 
salary as $52,000 per year. The director stated, in part: 
According to USCIS's record, on the previous petition (WAC 01 066 53959), the 
beneficiary's proffered position was a full-time job with a salary of $56,992.00 a year for 
three years. The submitted evidence shows that the beneficiary was paid only $38,705.36 a 
year on her W-2 Wage and Tax Statement [for] 2003. 
The director determined that the petitioner had not satisfactorily explained the discrepancy between the 
beneficiary's actual salary and the salary that the petitioner had attested that it would pay. As a consequence 
of this determination, the director decided that the petitioner "has clearly provided clear misrepresentation 
through the inconsistent and completely conflicting employment record," and that, "as such the reliability of 
all of the evidence provided with the present petition is in question and will be accorded no evidentiary 
value." The director referred to precedent decisions and the regulation at 8 C.F.R. 9 103.2(b) for the principle 
that a petitioner must establish eligibility at the time of filing. 
On appeal, counsel argues that the prevailing wage for the beneficiary's position was $48,464.00, and that this 
prevailing wage was met by the beneficiary's having "received in total compensation of [sic] $52,973.00 
which included guaranteed benefits such as legal fees, health benefits, 401K contributions, [and] vacation 
accrual." Counsel asserts in particular that the director erred by not considering the Department of Labor's 
(DOL) acknowledgement that OES is a "total compensation wage" calculation rather than a "straight salary 
wage determination." Counsel submits a brief and the following allied documents: (1) three pages of 
information, in question-and-answer format, from the Internet site of the American Immigration Lawyer's 
Association; (2) a draft "salary analysis" computation sheet, apparently produced by the petitioner, to support 
$38,705.36 as the beneficiary's salary and $52,973.56 as the "total paid" that she has received in salary, cost 
of counsel, CIS filing costs, visa application fee for the beneficiary's family, and seven items identified as 
fringe benefits; and (3) miscellaneous documentary evidence of the fiinge benefits. 
WAC 04 031 51601 
Page 3 
The director erred by disregarding the evidence of record that the proffered position is a specialty occupation 
and that the beneficiary is qualified to serve therein. The director correctly determined that there was a 
material difference between the salary stated in the initial petition and the salary reported to the Internal 
Revenue Service. However, this discrepancy is not a proper basis for denial of the petition. The proper 
course of action is the lodging of a complaint with the Wage and Hours Division of DOL. 
The evidence of record and counsel's brief on appeal indicate that that the petitioner has not been paying, and 
apparently will continue to not pay, the wages that it agreed to pay as a condition for certification of the LCAs 
that it filed with the initial petition and the instant request for extension of the validity of that petition. 
The AAO finds no merit to counsel's argument that the petitioner has complied with DOL standards for the 
wage that it must pay under the LCA. 
Counsel does not contest the director's finding that the initial petition had stated that the beneficiary would be 
paid "a salary of $56,992.00 a year for 3 years" but that the "W-2 Wage and Tax Statement 2003" submitted 
by the petitioner states a lower wage of $38,705.36. Rather, counsel contends that the petitioner paid the 
wage stated on an LCA by a combination of (1) the $38,705.36 reported on the beneficiary's W-2 Form; 
(2) these outlays for the beneficiary: the cost of counsel, CIS filing costs, and the visa application fee for the 
beneficiary's family; and (3) the money spent on these "fringe benefits": 401K, 401k discretionary 
contribution, Healthnet, life insurance, worker's compensation, payroll tax, and vacation accrual. According 
to counsel, DOL has determined that the wage a petitioner states on an LCA can be, in counsel's words, a 
"total compensation wage which takes into account even the use of discretionary bonuses, commissions, 
cost-of-living allowances and the like." Thus, counsel asserts that the actual dollar amount paid a beneficiary 
in wages or salary can be less than the wage stated on the related LCA. Counsel presents no statutory or 
regulatory authority to support his contention. The only document cited by counsel is "AILA [American 
Immigration Lawyers Association] DOL liaison Minutes 3-22-2001," which appears to be excerpted in the 
four pages submitted on appeal from the AILA Internet site. The statements in these Internet pages are not 
clear, as printing on the right side of each page is missing. Furthermore, the AAO accords no precedential 
value to a private organization's report on its recollection of a meeting with government agency 
representatives. 
By signing the current LCA, the petitioner agreed that the beneficiary's pay would be $52,000 per year for the 
period December 30, 2003 to December 30, 2006. However, the import of counsel's statement on appeal is 
that during this period the petitioner would be paying materially less than $52,000 per year in wages, because 
the petitioner would continue its practice of paying as the LCA prevailing wage a combination of dollars paid 
directly to the beneficiary (and reported on the W-2 Form), plus the petitioner's outlays for fringe benefits and 
other items benefiting the beneficiary or his family. Accordingly, if the beneficiary is presently employed by 
the petitioner, the evidence indicates that the petitioner is engaged in a continuing violation of the Employer 
Labor Condition Statement, at subparagraph (1) at section E of the current certified LCA, that, for the period 
December 30,2003 to December 30, 2006, it would "Pay nonimrnigrants at least the local prevailing wage or 
the employer's actual wage, whichever is higher," that is, $52,000 per year, as stated at the Rate of Pay 
section of page 2 of the current LCA 
WAC04031 51601 
Page 4 
The issues of violation of LCA conditions, misrepresentation of material facts on an LCA, and appropriate 
penalties are matters for DOL adjudication pursuant to the complaint, investigation, and disposition 
provisions of section 212(n) of the Act, 8 U.S.C. 5 1182(n).' Because it appears that the petitioner may be 
engaged in a continuous violation of the LCA prevailing wage condition of the current LCA, which is valid 
until December 30,2006, the director should file a complaint with the DOL Wage and Hour ~ivision.~ CIS is 
authorized to file a complaint, in accordance with 20 C.F.R. 5 655.806(a) and subsection (4) of the definition of 
"aggrieved party" at 20 C.F.R. 5 655.715 (that is, as "a government agency which has a program that is impacted 
by the employer's alleged non-compliance with the labor condition application.") 
In accordance with the above discussion, the director's decision will be withdrawn and the matter remanded for 
the service center to file a complaint alleging the petitioner's non-compliance with the LCA and to enter a new 
decision in conformity with DOL's determination of the merits of the complaint. The complaint should be in 
writing, and it must set forth sufficient facts for DOL to determine if there is reasonable cause to believe that a 
violation as described at 20 C.F.R. 55 655.806 has been committed, and therefore that an investigation is 
warranted. The director shall suspend adjudication of the instant petition until DOL renders a determination in 
response to the complaint. If DOL determines that a violation has been committed, the director shall take such 
action as may be appropriate under 8 C.F.R. 5 214.2(h)(5). Thereafter, the director shall adjudicate the petition 
and render a new decision based on the evidence of record as it relates to the regulatory requirements for 
eligibility. If adverse to the petitioner, the decision shall be certified to the AAO for review. As always, the 
burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. 
ORDER. 
 The director's May 13, 2004 decision is withdrawn. The petition is remanded to the director for 
entry of a new decision, which if adverse to the petitioner, is to be certified to the AAO for 
review. 
1 
 Of course, in addition to penalties that the DOL may levy, the CIS regulation at 8 C.F.R. 5 214.2 
(h)(4)(i)(B)(5) mandates that "for a period of at least one year from the date of such notice" CIS shall not 
approve petitions under section 204 or 214(c) of the Act with respect to an employer that a DOL notice to CIS 
identifies as having "failed to meet a condition of paragraph (B) of section 212(n)(l) of the Act, has 
substantially failed to meet a condition of paragraphs (C) or (D) of section 212(n)(l) of the Act, has willfully 
failed to meet a condition of paragraph (A) of section 212(n)(l) of the Act, or has misrepresented any material 
fact in the [LCA] application." 
2 
 Section 212(n)(2)(A) of the Act, 8 U.S.C. 3 1182(n)(2)(A), provides that DOL will investigate only 
complaints that are filed not later than 12 months after the date of a failure to comply with an LCA condition 
or misrepresentation on the LCA, respectively.