remanded H-1B Case: Physical Therapy

identifying data &feted to 
prevent clearly unwarranted 
invasion of pemd privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. NW, Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 067 55004 Office: VERMONT SERVICE CENTER Date: AUG 1 5 2006 
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. 5 1 101(a)(15)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All materials 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 
EAC 03 067 55004 
Page 2 
DISCUSSION: The service center director initially approved the nonimmigrant visa petition. The director 
subsequently revoked the approval on the ground that the petitioner had altered numerous documents and made a 
number of misleading statements in response to the notice of intent to deny, so that no determination could be 
made as to authenticity of the documents and the validity of the petition. The matter is now on appeal before the 
Administrative Appeals Office (AAO). The director's decision will be withdrawn. The petition will be 
remanded for entry of a new decision. 
The petitioner is an employment/staffing agency. It seeks to employ the beneficiary as a physical therapist 
and to classify her as a nonimmigrant worker in a specialty occupation pursuant to section lOl(a)(l5)(H)(i)(b) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(lS)(H)(i)(b). 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as 
a minimum for entry into the occupation in the United States. 
Section 214(i)(2) of the Act, 8 U.S.C. 5 1184(i)(2), provides that an alien must have the following credentials 
to be qualified to perform the services of a specialty occupation: 
(A) full state licensure to practice in the occupation, if such licensure is required to 
practice in the occupation, 
(B) completion of the degree described in paragraph (l)(B) for the occupation, or 
(C) (i) experience in the specialty equivalent to the completion of such degree, and (ii) 
recognition of expertise in the specialty through progressively responsible positions 
relating to the specialty. 
The record of proceeding before the AAO contains (I) Form 1-129 and supporting documentation; (2) the 
notice of intent to revoke (NOIR), (3) the petitioner's response to the NOIR; (4) the director's decision; and 
(5) Form I-290B, an appeal brief, and supporting materials. The AAO reviewed the record in its entirety 
before issuing its decision. 
In the Form 1-129 and an accompanying letter, filed in December 2002, the petitioner described itself as a 
business that staffs the needs of professional service corporations such as retail companies, out-patient 
rehabilitation clinics, hospitals, and nursing homes with such personnel as office managers, physical 
therapists, registered nurses, and nurse assistants. The petitioner stated that its business was established in 
1999, has 45 employees, and earns gross annual revenues of over $2 million. To meet the growing demand of 
its clients the petitioner stated that it needed the beneficiary's services as a physical therapist for three years 
and would pay her an annual salary of $40,000. The duties of the proffered position were listed as follows: 
Evaluate physician referral and patient medical records to determine physical therapy treatment 
required. 
EAC 03 067 55004 
Page 3 
Plan and administer medically prescribed physical therapy treatment programs for patients to 
restore function, relievelease pain, and prevent disability caused by disease, injury, or loss of 
body parts. 
Perform patient tests, measurements, and evaluations, such as range of motion and manual muscle 
tests, gait and functional analysis, and body parts measurements. 
Record and evaluate findingslresults to aid in establishing or revising specifics of treatment 
programs. 
Instruct, motivate, and assist patients in non-manual exercises and functional activities. 
Administer treatment to an extent necessary to achieve maximum benefit, and record patient's 
treatments, response and progress. 
The minimum requirements for the job, the petitioner stated, are a bachelor's degree in physical therapy and 
the requisite license from the State of New York. At the time of filing, the record indicates, the beneficiary 
had a bachelor of science in physical therapy from the Liceo de Cagayan in the Philippines, granted on March 
as well as a letter from New York's Bureau of Comparative Education. dated- 
advising the beneficiary that the education portion of her application for a physical therapy license had been 
approved and that she was eligible to schedule a computerized examination. 
The instant H-1B petition was filed on December 30,2002 and approved on January 3,2003. By letter dated 
May 26, 2004, however, the acting director advised the petitioner of her intention to revoke the approval on 
multiple grounds. As explained in the NOIR, the record contained no evidence that the beneficiary had 
completed her application for licensure in the State of New York by taking the required examination. The 
petitioner was requested to submit a copy of the beneficiary's license or other documentary evidence that the 
beneficiary was eligible to practice physical therapy in New York. The petitioner was also advised to submit 
copies of its contract with the facility where the beneficiary would be working and the contract between the 
facility and the beneficiary. In addition, the acting director noted that the petitioner's employment agreement 
with the beneficiary, dated December 18, 2002, contains a paragraph providing for a $3,000 salary deduction 
as a sponsorship fee for the petitioner's filing of an immigrant petition on behalf of the beneficiary. After 
remarking that "[tlhis fee will reduce the wage paid as indicated on the Labor Condition Application [LCA]," 
the acting director declared that the fee did not appear to qualify as an "authorized deduction" under the 
Department of Labor (DOL) regulation at 20 C.F.R. 5 655.731(~)(9). 
In response to the NOIR, the petitioner submitted a copy of the beneficiary's license from the State of New 
York to practice physical therapy, issued - the staffing agreement between the petitioner 
and the facility (First Medcare in Brooklyn, New York) where the beneficiary would be assigned, dated 
and an updated employment agreement between the petitioner and the beneficiary, dated 
that omits the paragraph providing for a $3,000 salary deduction to pay for an immigrant 
petition. 
On January 6, 2005, the director issued a decision revoking the approval of the petition on multiple grounds. 
The director referred to the removal of the immigrant sponsorship fee in the petitioner's new contract with the 
beneficiary. The director also referred to "pay statements" in which "[tlhe total deductions . . . equal more 
than the federal, state, and social security deductions, therefore indicating that an additional deduction had in 
fact been made by the petitioner to recoup the cost of filing." The director stated that the deductions reduced 
the beneficiary's actual salary below the prevailing wage indicated on the LCA. According to the director, 
the foregoing "alterations call into question the authenticity of any and all documents submitted to this office 
EAC 03 067 55004 
Page 4 
by your company." In addition, the director cited "discrepancies" between the varying employee totals listed 
on other H-1B petitions filed by the petitioner and the income tax statements filed by the petitioner in 2004. 
Lastly, the director noted that the petitioner had filed ten H-1B petitions for in-house accountants which had 
been approved, though the petitioner never acknowledged employing that many accountants at one time and 
the number of accountants appeared greater than a company of the petitioner's size would need. The director 
concluded that: 
Due to the large number of obvious and intentional alterations to various documents 
submitted by you as well as a number of misleading statements made by you, this Service 
cannot determine the validity of any positions offered or claims made, or the authenticity of 
any documents submitted by your company. Therefore, you have failed to establish 
eligibility for the benefit sought. 
On appeal counsel asserts that the petitioner did not alter any documents submitted in connection with this or 
other H-1B petitions and that the number of employees in the company constantly varies. As evidence 
thereof copies have been submitted of the petitioner's 2004 quarterly tax filings in the State of New York 
which list 135 employees in the first quarter of the year, 145 in the second quarter, 174 in the third quarter, 
and 243 in the fourth quarter. These numbers, counsel explains, reflect the company's rapid growth rate of 
almost 50% a year, which has produced gross annual revenues of $5.8 million. The petitioner has not hired 
an overabundance of H-1B accountants, counsel contends, since most of the employees have transferred to 
other companies or been terminated. The petitioner submits a list of seven accountants it hired, three of 
whom moved on to other companies and four of whom currently work for the petitioner in various capacities 
including an accountant, an accounting consultant, an internal auditor, and a budget officer. With respect to 
the deductions from employee paychecks, counsel asserts that such deductions did not reduce employee 
salaries below LCA specifications and that they were recruitment fees that covered the company's out-of- 
pocket expenses, not a reimbursement for CIS filing fees. The petitioner has since revised its pay system, 
counsel states, to eliminate deductions for recruitment fees. As evidence thereof a copy has been submitted of 
a pay stub issued to the beneficiary in February 2005. Counsel asserts that the instant petition should be 
adjudicated on its own merits, not on the basis of other H-1B petitions filed by the petitioner and unproven 
allegations of wrongdoing in those petitions. The instant petition should be approved, counsel concludes, 
because the petitioner has made a bona fide offer of employment to the beneficiary, the proffered position is a 
specialty occupation, and the beneficiary is qualified for the position. 
The AAO determines that the director failed to comply with applicable regulations in revoking the approval 
of the instant petition. The regulation at 8 C.F.R. $ 214.2(h)(l l)(iii) establishes the procedure for revocations 
on notice of the director. It reads as follows: 
(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 if the beneficiary is no longer receiving training as specified in the petition; or 
(2) The statement of facts contained in the petition was not true and correct; or 
(3) The petitioner violated terms and conditions of the approved petition; or 
EAC 03 067 55004 
Page 5 
(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. If the petition is revoked in part, the remainder of the petition shall remain approved 
and a revised approval notice shall be sent to the petitioner with the revocation notice. 
The director did not comply with the notice requirements of 8 C.F.R. 9 214.2(h)(l l)(iii) because the grounds 
for revocation in his decision of January 6, 2005 did not comport with the grounds for revocation discussed in 
the NOIR of May 26, 2004. The director did not revoke the approved petition on the ground that the 
beneficiary does not have a license to practice physical therapy, or on the ground that the petitioner failed to 
provide its contract with the facility where the beneficiary would be working or the contract between the 
facility and the beneficiary. Those were the grounds for revocation discussed in the NOIR. As for the other 
ground of revocation discussed in the NOIR - the director's determination that the petitioner's $3,000 
deduction from the beneficiary's salary would reduce the wage indicated in the LCA and was not an 
authorized deduction under the regulation at 20 C.F.R. fj 655.73 1(c)(9) - the AAO notes that enforcement of 
this regulation resides in the Department of Labor. Accordingly, the director's concerns regarding the LCA 
filed by the petitioner are beyond the purview of Citizenship and Immigration Services (CIS) in adjudicating 
the instant H-1B petition and are not a basis for revoking the petition. 
Thus, the director erred in revoking the approval of the instant petition. The director's decision is not in 
compliance with the notice provision of 8 C.F.R. 8 214.2(h)(4)(iii)(B), which requires that the decision to 
revoke be based on the "detailed statement of the grounds for revocation" in the NOIR. The petitioner 
responded to the NOIR by submitting additional documentation addressing the grounds for revocation 
discussed by the acting director, but this evidence was not discussed by the director in his revocation decision. 
Accordingly, the director's decision will be withdrawn. 
The petition will not be approved, however, as the director has raised serious questions about the authenticity 
of the petitioner's evidence in connection with the alleged alteration of documents and misrepresentations of 
fact in other petitions it has filed. The regulation at 8 C.F.R. 5 103.2(b)(16)(i) requires the director to advise 
the petitioner "if the decision will be adverse to the . . . petitioner and is based on derogatory information 
considered by [CIS] and of which the . . . petitioner is unaware," and give the petitioner "an opportunity to 
rebut the information in hislher own behalf before the decision is rendered." The AAO notes that each 
petition filed is a separate proceeding with a separate record. See 8 C.F.R. 9 103.8(d). In making a 
determination of statutory eligibility, CIS is limited to the information contained in the record of proceeding. 
See 8 C.F.R. 5 103.2(b)(16)(ii). Thus, in a new notice of intent to revoke under 8 C.F.R. 5 214.2(h)(l l)(iii), 
the director must include a detailed statement citing specific alterations of documents and misrepresentations 
of fact by the petitioner in the instant record of proceeding, whether they derive from the instant proceeding 
or other petitions, and give the petitioner the opportunity to submit rebuttal evidence addressing those issues. 
The director may properly revoke the petition if, after a notice of intent to revoke has been issued informing 
EAC 03 067 55004 
Page 6 
the petitioner of the specific reasons why the petition should not have been approved, the petitioner is found 
to have committed fraud or is unable to resolve the inconsistencies in the record. 
The petition will be remanded for the director to reinstitute revocation proceedings that comply with the 
notice requirements of 8 C.F.R. 5 214.2 (h)(l l)(iii)(A) and (B). 
As always, the petitioner bears the burden of proof in these proceedings. See section 291 of the Act, 8 U.S.C. 
5 1361. 
ORDER: The director's decision of January 6,2005 is withdrawn. The petition is remanded to the director 
for entry of a new decision. If adverse to the petitioner, the decision shall be certified to the 
AAO for review.