sustained H-1B Case: Information Technology

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PUBLIC'COtiY'
U.S. Department of Homeland Security
20 Mass. Ave., N.W., RIp. 3000
Washington, DC 20529
U~S. Citizenship
and Immigration
Services
FILE: .WAC 04 078·50995 Office: CALIFORNIA SERVICE CENTER Date: DEC 042GG6
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(H)(i)(b) ofthe
Immigration and Nationality Act, 8 U.S.C. § I 101(a)(15)(H)(i)(b)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~.u:.t /~..,./""~ Robert P. Wiemann, ief
Administrative Appeals flee
www.uscis.gov
WAC 04 078 50995
Page 2
DISCUSSION: The director of the California Service Center revoked the previously approved nonimmigrant
visa petition. The matter is now before the Administrative Appeals Office (AAO) onappeal. The appeal will
be sustained. The director's revocation of the approved petition will be withdrawn.
The petitioner is an information technology consulting firm, with six employees. It seeks to extend its
employment of the beneficiary as a computer programmer/analyst pursuant to section 101(a)(15)(H)(i)(b) of
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1l01(a)(15)(H)(i)(b). The director revoked the
approval of the petition based on his determination that the petitioner had failed to comply with the terms and
conditions set forth in the Form 1-129.
The record of proceeding before the AAO contains: (1) Form 1-129 and supporting documentation; (2) the
director's notice of intent to revoke; (3) the petitioner's response to the notice; (3) the director's letter of
revocation; and (4) Form 1-290B, with new and previously submitted evidence. The AAO reviewed the
record in its entirety before issuing its decision.
The only issue before the AAOis whether the petitioner has overcome the grounds on which the director based
the revocation of the petition.
Pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(A), a director shall issue a notice of intent to revoke a Form 1-129
petition if he or she finds that:
(1) 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
(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or
paragraph -ih) of this section; or
(5) The approval of the petition violated paragraph (h) of this section or involved
gross error.
In the instant case, the director approved the instant petition on February 4, 2004. Subsequently, he became
aware of information that he found to indicate that the petitioner was not in compliance with the terms of the
Labor Condition Application (LCA) submitted in support of the Form 1-129, Petition for a Nonimmigrant
Worker, as required by the regulation at 8 C.F.R. § 214.2(h)(4)(iii)(B)(2). Accordingly, he issued a notice of
intent to revoke (NOIR) the petition's approval informing the petitioner that the quarterly wage reports it had
submitted in support of other petitions indicated that the beneficiary worked no consistent schedule, even
though the job that had been offered to him was a full-time position. The petitioner was given 30 days in
which to respond with evidence in support of the petition.
WAC 04 078 50995
Page 3
The petitioner replied in aNovember 16, 2005 letter, asserting that it had consistently paid the beneficiary
above the wage rate set in the LCAand that the lower wage totals that concerned the director were the result
of the beneficiary 's absences from the United States . The petitioner submitted copies of the beneficiary 's
W-2s, Wage and Tax Statements , for 2003 and 2004 ; his payroll records and pages from his passport to
document his time outside the United States .
The director found the petitioner's evidence failed to overcome the grounds for revocation , determining that it
had not p.aid the beneficiary the proffered wage or established that it had an employer/employee relationship
with the beneficiary. Therefore, he revoked the approved petition on December 2, 2005.
The regulation at 8 C.F.R . § 214.2(h)(l1 )(iii)(B) specifies that a NOIR must provide a detailed statement of
the grounds for revocation . In the instant case, the director's NOIR indicates that the ground for the proposed
revocation is the petitioner 's failure to comply with the wage rate listed in the LCA. However, the revocation
of the approved petition quotes language from a NOIR other than that in the record and concludes that the
petitioner has not onl y failed to pay the proffered wage but to .establish an employer/employee relationship
with the beneficiary. As the NOIR issued by the director does not reference the employer/employee
relationship between the petitioner and the beneficiary , it may not serve as a ground for revocation .
Accordingly, the director 's finding that the approved petition must be revoked based on the petitioner 's
failure to establish an employer/employee relationsh ip with the beneficiary is withdrawn.
Moreover , based on its revie w ofthe evidence of record on appeal , the AAO finds the petitioner to have
overcome the director 's concerns with regardto the fluctuations in the beneficiary 's quarterly earnings . The
submitted pages from the beneficiary's passport , which reflect various admissions to Canada , India and the
United States and establish the dates on which his U .S. visas were issued , as well as ' the petitioner 's payroll
records, establish by a preponderance of the evidence that the beneficiary's reduced earnings were the result
of his absences from the United States, not the petitioner 's failure to comply with LCA requirements.
For the reasons just discussed, the AAO concludes that the petitioner has effectively refuted the ground for
revocation specified in the NOIR. Accordingly, the AAO will sustain the petitioner's appeal and withdraw the
director's revocation of the,petition.
The burden of proof in .these proceedings rests solely with the petitioner. Section 291 of the Act , 8 U .S.C.
§ 1361. The petitioner has met that burden .
ORDER: The appeal is sustained. The revocation i s withdrawn. The petition is approved.