In re Simeio Solutions, LLC
| Decision Date | 09 April 2015 |
| Docket Number | Interim Decision #3832 |
| Citation | 26 I&N Dec. 542 |
| Parties | Matter of SIMEIO SOLUTIONS, LLC |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers ("LCA") be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.
ON BEHALF OF PETITIONER: Candie Tou Clement, Esquire, Clawson, Michigan
The California Service Center Director ("Director") revoked the petitioner's nonimmigrant visa petition and certified the decision to the Administrative Appeals Office ("AAO") for review. The AAO finds that the petitioner has not overcome the specified grounds for revocation.1 Accordingly, the Director's decision will be affirmed and the petition's approval will be revoked.
The petitioner filed a Petition for a Nonimmigrant Worker (Form I-129) to classify the beneficiary as an H-1B temporary 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) (2012). In support of the petition, the petitioner submitted a certified Department of Labor ("DOL") Labor Condition Application for Nonimmigrant Workers (ETA Form 9035/9035E) ("LCA"). On the Form I-129, the petitioner described itself as an enterprise that provides information technology services. At the time the petition was filed, the beneficiary maintained nonimmigrant status as anF-1 student and was employed by the petitioner pursuant to post-degree optional practical training.
On the Form I-129, in the LCA, and in a letter of support, the petitioner attested that it would employ the beneficiary to serve on an in-house project at the petitioner's facility, with an annual salary of $50,232. The petitioner identified an address in Long Beach, California (Los Angeles-Long Beach-Santa Ana, CA Metropolitan Statistical Area) as the beneficiary's place of employment.2 The petitioner stated that the beneficiary would provide services for a specific client and emphasized that "[the beneficiary] is and will continue to work from [the petitioner's] Long Beach office." The petitioner did not request other worksites and did not submit an itinerary. See 8 C.F.R. § 214.2(h)(2)(i)(B) (2014) (). Based upon this record, the Director approved the Form I-129 petition.
After working for the petitioner in H-1B status for approximately 2 months, the beneficiary departed from the United States and applied for an H-1B visa at the United States Embassy in New Delhi, India, based on the approved petition. After interviewing the beneficiary, the Department of State consular officer requested additional documentation, including a letter from the petitioner's client regarding the work to be performed by the beneficiary. The petitioner did not submit the requested documentation and, instead, indicated that the beneficiary provided services to clients not previously identified in the approved petition. The Embassy returned the petition to the Director for review, stating that during the course of the visa interview process, the beneficiary and the petitioner presented information that was not available to the Director at the time the petition was approved.
Thereafter, officers of the United States Citizenship and Immigration Services ("USCIS") conducted a site visit at the petitioner's Long Beach facility, the place of employment specified in the H-1B petition and supporting documents.3 The officers' site visit report is summarized inrelevant part as follows: Unable to locate the petitioner's office at the address identified in the petition and LCA, the officers ascertained from the property manager that the petitioner had vacated the facility 2 months after the start date of the beneficiary's H-1B employment. The officers then contacted the petitioner's director of operations, the Form I-129 petition signatory, who indicated that the company currently utilized an employee's home as the company address. The officers then visited the company's newly provided address, at which the resident-employee stated that the petitioner employed approximately 45 to 50 people, the beneficiary was assigned to the petitioner's Los Angeles office, and all employees assigned to that office either worked from home or from a client worksite.
Thereafter, the Director issued a notice of intent to revoke the approval of the petition ("NOIR"). The NOIR provided a detailed statement of the related revocation ground and afforded the petitioner an opportunity to provide a rebuttal. See 8 C.F.R. § 214.2(h)(11)(iii)(B).
In response, the petitioner confirmed that the beneficiary was no longer working on the project or at the location specified in the original petition. The petitioner stated that the beneficiary's services had been used for "various end users" and that he had worked either out of the petitioner's Long Beach office or from his home office. With its response, the petitioner submitted a new LCA that provided two new worksites—in Camarillo, California (Oxnard-Thousand Oaks-Ventura Metropolitan Statistical Area), and Hoboken, New Jersey (New York-Newark-Jersey City, NY-NJ-PA Metropolitan Statistical Area)—as the beneficiary's places of employment. Both worksites are located in metropolitan statistical areas different from the worksite listed on the original petition.
The Director concluded that the changes in the beneficiary's places of employment constituted a material change to the terms and conditions of employment as specified in the original petition. Pursuant to 8 C.F.R. § 214.2(h)(2)(i)(E), the petitioner was required to file an amended Form I-129 corresponding to a new LCA that reflects these changes. The petitioner failed to file an amended petition, and accordingly, the Director revoked the nonimmigrant visa petition and certified the decision to the AAO.
Section 101(a)(15)(H)(i)(b) of the Act (emphasis added).4
In turn, section 212(n)(1)(A)(i) of the Act, 8 U.S.C. § 1182(n)(1)(A)(i) (2012), requires an employer to pay an H-1B worker the higher of either the prevailing wage for the occupational classification in the "area of employment" or the actual wage paid by the employer to other employees with similar experience and qualifications who are performing the same services.5 See 20 C.F.R. § 655.731(a) (2014); see also Venkatraman v. REI Sys., Inc., 417 F.3d 418, 422 & n.3 (4th Cir. 2005); Michal Vojtisek-Lom & Adm'r Wage & Hour Div. v. Clean Air Tech. Int'l, Inc., No. 07-097, 2009 WL 2371236, at *8 (Dep't of Labor Admin. Rev. Bd. July 30, 2009).
Implemented through the LCA certification process, section 212(n)(1) is intended to protect United States workers' wages by eliminating economic incentives or advantages in hiring temporary foreign workers. See, e.g., Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas in Specialty Occupations and as Fashion Models; Labor Certification Process for Permanent Employment of Aliens in the United States, 65 Fed. Reg. 80,110, 80,110-11, 80,202 (Dec. 20, 2000) (Supplementary Information). The LCA currently requires petitioners to describe, inter alia, the number of workers sought, the pertinent visa classification for such workers, their job title and occupational classification, the prevailing wage, the actual rate of pay, and the place(s) of employment.
To promote the United States worker protection goals of a statutory and regulatory scheme that allocates responsibilities sequentially between DOL and the Department of Homeland Security ("DHS"), a prospective employer must file an LCA and receive certification from DOL before an H-1B petition may be submitted to USCIS. 8 C.F.R. § 214.2(h)(4)(i)(B)(1); 20 C.F.R. § 655.700(b)(2) (2014).6 If an employer does not submit the LCA to USCIS in support of a new or amended H-B petition, the process is incomplete and the LCA is not certified to the Secretary of Homeland Security. See section 101(a)(15)(H)(i)(b) of the Act; 8 C.F.R. § 214.2(h)(4)(i)(B)(1); 20 C.F.R. § 655.700(b); see also Labor Condition Applications and Requirements for Employers Using Aliens on H-1B Visas in Specialty Occupations and as Fashion Models, 57 Fed. Reg. 1316, 1318 (Jan. 13, 1992) (Supplementary Information) (discussing filing sequence); Labor Condition Applications and Requirements for Employers Using Aliens on H-1B Visas in Specialty Occupations, 56 Fed. Reg. 37,175, 37,177 (Aug. 5, 1991) (Supplementary Information).
In the event of a material change to the terms and conditions of employment specified in the original petition, the petitioner must file an amended or new petition with USCIS with a corresponding LCA. Specifically, the pertinent regulation requires the following:
The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of...
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