remanded H-1B Case: Management Analysis

PUBLIC COpy
U.S. Department of Homeland security
20 Mass. Ave., N.W., Rm.3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
INRE:
WAC 06 165 50674 Office: CALIFORNIA SERVICE CENTER
Petitioner:
Beneficiary:
Date: OCT 2 9 2001
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.uscis.gov
WAC 0616550674
Page 2
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is now
before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn and the matter
remanded for entry of a new decision.
The petitioner is a freight forwarding company that claims six employees, a gross annual income of $1,711,911,
and a net annual income of $44,781. It seeks to extend the employment of the beneficiary as a management
analyst. Accordingly, the petitioner endeavors to classify the beneficiary as a nonimmigrant pursuant to section
101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (the Act), 8 U.S .C. § 1101(a)(l5)(H)(i)(b).
The record of proceeding before the AAO contains: (1) the Form 1-129 filed April S, 2006 with supporting
documentation; (2) the director's July 21,2006 request for further evidence (RFE); (3) counsel's October 3,2006
response to the director's RFE; (4) the director's October 26, 2006 denial decision; and (5) the Form 1-290B,
counsel's statement , and documentation. The AAO reviewed the record in its entirety before issuing its decision.
On October 26, 2006, the director denied the petition. The director observed that the Form 1-129 and the
Department of Labor's (DOL) Labor Condition Application (LCA) submitted with the Form 1-129 listed the wage
for the position as $41,588 annually. The LCA also listed the prevailing wage in the Miami, Florida area for a
management analyst position as $41,588. The Form 1-129 indicated that the petit ion was filed for a continuation
of previously approved employment without change with the same employer. The director noted that the
beneficiary's Internal Revenue Service (IRS) tax records showed the beneficiary had received $12,480 in 2003,
$28,600 in 2004, and $28 ,600 in 2005. The director determined that the petitioner had misstated the wage on the
Form 1-129 petition and based on the discrepancies in the record, the petitioner had failed to demonstrate that
there is a credible offer of employment. The director noted that the petitioner's ability to pay the beneficiary's
wage, although not dispositive, may be considered a relevant line of inquiry bearing upon the totality of the
circumstances and whether the petitioner had sufficient work involving the application of a body of theoretical
knowledge. The director concluded that the record lacked a reliable evidentiary basis to determine that the
petitioner's proffer is authentic.
On appeal, counsel for the petitioner submits an LCA certified by the DOL on April 15,2003 for a management
analyst in the Miami, Florida area. The April 15, 2003 LCA indicates that the petitioner's rate of pay for this
position is $21,600 and that the prevailing wage in the Miami , Florida area is $16 ,390. Counsel notes that the
beneficiary began his employment in April 2003 and had been paid the full wage as required by both the old LCA
(certified April 15,2003) and the new LCA (certified March 29, 2006). Counsel asserts that the change in salary
from the previous petition does not reflect a significant change in duties or responsibilities and that there has been
no substantive change in employment; thus, the petitioner was not required to indicate on the Form 1-129 that
there had been a change in the previously approved employment. Counsel asserts further that as the beneficiary
was actually paid in accordance with the certified LCAs, the petitioner's failure to indicate a change in
employment would constitute harmless error.
The AAO finds that the director insufficiently articulated the basis for denying the petition. The AAO observes
that the director questioned whether the beneficiary had sufficient work involving the application of a body of
theoretical knowledge and the director observed that this question opened up a relevant line of inquiry; however,
the director only noted the difference in salary the beneficiary received in 2003, 2004, and 2005 and the proffered
WAC 0616550674
Page 3
salary as indicated in the 2006 Form 1-129 and speculated that the petitioner had misstated the wage in the Form
1-129. It is for this reason, the director's October 26,2006 decision will be withdrawn and the matter remanded
for the entry of a new decision.
The director 's decision does not address the regulatory requirements for eligibility. The director did not make a
determination as to whether the proffered position is a specialty occupation or whether the beneficiary is qualified
to perform services in a specialty occupat ion. The AAO observes that the current record raises significant
questions regarding the actual duties and responsibilities of the proffered position as those duties and
responsibilities relate to the petitioner's business operations. The AAO notes that in response to the director's
request for the beneficiary's past work product, the petitioner submitted documents that had not been translated
and appeared to be a simple list of clients . The current record does not establish that the proffered position is a
specialty occupation . Further, the current record does not contain an evaluation of the beneficiary's foreign
education and the transcript submitted shows the beneficiary obtained a three-year degree. The record does not
establish the beneficiary's eligibility to perform the duties of a specialty occupation .
Accordingly, the matter will be remanded for the director to render a new decision based on the evidence of
record as it relates to the regulatory requirements for eligibility. The d irector may afford the petitioner reasonable
time to provide evidence pertinent to the issues of: (1) the nature of the proffered position and whether the duties
and responsibilities of the position as they relate to the petitioner's business establish the position as a specialty
occupation; (2) the beneficiary's qualifications and whether he is eligible to perform the duties of a specialty
occupation; and (3) any other evidence the director may deem necessary. The director shall then render a new
decision based on the evidence of record as it relates to the regulatory requirements for eligibility. 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. § 1361. If the new decision is adverse to the petitioner , the director shall certify it to the AAO for
review.
ORDER: The director's October 26, 2006 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.