remanded H-1B Case: Not Specified

U.S. Citizenship 
and Immigration 
Services 
In Re: 11876452 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: Aug. 31, 2021 
The Petitioner seeks to temporarily employ the Beneficiary under the H-lB nonimmigrant classification 
for specialty occupations . Immigration and Nationality Act (the Act) section 101(a)(l5)(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. 
After initially approving the petition , the Director of the Vermont Service Center issued a notice of 
intent to revoke (NOIR) , and subsequently revoked the approval with a finding of fraud . On appeal , 
the Petitioner asserts that the Director erroneously revoked the approval and improperly entered a 
finding of fraud . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 1 
We review the questions in this matter de novo. 2 Upon de novo review , we will withdraw the 
Director's finding of fraud and remand the matter for further proceedings . 
I. LEGAL FRAMEWORK 
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): 
(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 m the 
capacity specified in the petition ... ; or 
1 Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). 
2 See Matter of Christo 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
(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) 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 .... 
II. ANALYSIS 
We conclude that the Director did not properly analyze and explain the grounds of revocation under 8 
C.F.R. § 214.2(h)(l l)(iii) and finding of fraud to allow the Petitioner a fair opportunity to contest the 
decision on appeal. Cf Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that the reasons for 
denying a motion must be clear to allow the affected party a meaningful opportunity to challenge the 
determination on appeal). For example, the Director references 8 C.F.R. § 214.2(h)(l l)(iii)(2), (3), 
and ( 4), and states that the first ground for revocation is that the record does not establish that the 
Petitioner is paying the Beneficiary the wages stated in the approved petition. The Director cites 
Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) and states that USCIS reviews the 
labor condition application (LCA) to ensure that the wage level designated by the petitioner 
corresponds to the proffered position. Then the Director erroneously discusses the Beneficiary's hired 
and start dates to conclude that the Petitioner did not intend to pay the prevailing wages. 
However, the issues regarding the LCA are: ( 1) the Beneficiary was not paid the proffered wage from 
March 2018 to November 2019; and (2) the Beneficiary worked remotely from her residence in 
Florida, which was not the place of employment designated on the LCA. Therefore, we are remanding 
the case to the Director for further review and to sufficiently explain the grounds of revocation. 
Regarding the required wage, the Petitioner claimed that the Beneficiary's pay was adjusted with her 
consent due to a downturn in business revenue with non-discretionary payout for the remaining 
balance. The Director should review the record to determine: whether the Petitioner complied with 
the requirements under 20 C.F.R. § 655. 731 including but not limited to whether the record establishes 
that the required wage was paid to the employee ... free and clear, when due; whether the Petitioner's 
alleged agreement with the Beneficiary (which is not documented) meets the requirements of future 
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bonuses and similar compensation; and, whether revocation ts warranted under 8 e.F.R. § 
214.2(h)(l l)(iii)(3) and (4).3 
Regarding the Beneficiary's place of employment, the Director noted that the Beneficiary has been 
working in Florida, which was not reflected on the LeA. Then the Director concluded, in part, that 
the Petitioner did not comply with the itinerary requirement in 8 e.F.R. § 214.2(h)(2)(i)(B). However, 
while this appeal was pending, users rescinded previously issued policy guidance regarding the 
1tmerary requirement. users Policy Memorandum PM-602-0114, Rescission of Policy 
Memoranda (June 17, 2020),https://www.uscis.gov/sites /default /files/document/memos/PM-602-
0114_ITServeMemo.pdf. Because this case is affected by the new policy guidance, the Director 
should consider the question anew and to adjudicate in the first instance any additional issues as may 
be necessary and appropriate. The Director should review the record to determine: whether the 
Petitioner complied with the statutory and regulatory requirements including but not limited to section 
212(n)(l) of the Act, 8 U.S.e. § l 182(b)(l)(A), 20 e.F.R. § 655.73l(a), 20 e.F.R. § 655.735; whether 
the LeA corresponds with the petition under 20 e.F.R. § 655. 705(b ), Matter of Simeio Solutions, LLC; 
and, based upon such review of the record, whether revocation is warranted under 8 e.F.R. § 
2 l 4.2(h)(l l )(iii)(2), (3) and ( 4). The Director may wish to consider the Petitioner's responsibilities 
and attestations on the Form r-129, Petition for a Nonimmigrant Worker, to "agree to, and will abide 
by, the terms of the [LeA]" and the LeA, and the form instructions, which are incorporated into the 
regulations per 8 e .F.R. § 103 .2( a)( 1 ), that requests information regarding places of intended 
employment and offsite locations. 
We further note that while the Director states that "Users is revoking the approval of your petition, 
with a finding of fraud," the Director did not provide analysis regarding the finding of fraud. The 
Director may wish to refer to users Policy Manual's section on Fraud and Willful Misrepresentation 
to provide analysis to make a finding of fraud. users Policy Manual, available at 
https://www.uscis.gov/policy-manual/volume-8-part-j (last visited Aug. 30, 2021 ). 
The Director may request any additional evidence considered pertinent to the new determination. As 
such, we express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3 A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
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