U.S. Citizenship and Immigration Services

Non-Precedent Decision of the Administrative Appeals Office

MATTER OF N-I-, INC. DATE: FEB. 8, 2016

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, a wireless communications firm, seeks to employ the Beneficiary as a "Senior Consultant" under the H-1 B nonimmigrant classification. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(i)(b), 8 U.S.C. § 1101(a)(15)(H)(i)(b). The Director, California Service Center, initially approved the visa petition, but subsequently revoked that approval. The matter is now before us on appeal. The appeal will be dismissed.

I. REVOCATION ON NOTICE

A. Legal Framework

U.S. Citizenship and Immigration Services (USCIS) may revoke the approval of an H-1B petition pursuant to 8 C.F.R. § 214.2(h)(11)(iii), which states the following with respect to revocation on notice:

(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

(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)

(5)

The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or

The approval of the petition violated paragraph (h) of this section or involved gross error.

(b)(6)

Matter of N-1-, Inc.

(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 ....

The Petitioner asserts that the petition should not be revoked. It claims that the following short-term employment provisions at 20 C.F.R. § 655.735 are relevant to this matter:

(c) An employer's short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at any worksite(s) in an area of employment not listed on the employer's approved LCA(s) shall not exceed a total of 30 workdays in a one­year period for any H-1B nonimmigrant at any worksite or combination of worksites in the area, except that such placement or assignment of an H -1 B nonimmigrant may be for longer than 30 workdays but for no more than a total of 60 workdays in a one-year period where the employer is able to show the following:

(1) The H -1 B nonimmigrant continues to maintain an office or work station at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite);

(2) The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; and

(3) The H-1B nonimmigrant's U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of the short-term worksite(s) (e.g., the worker's personal mailing address; the worker's lease for an apartment or other home; the worker's bank accounts; the worker's automobile driver's license; the residence of the worker's dependents).

The regulations further state that a petitioner may not make short-term placements at worksites in any area of employment for which the employer has a certified labor certification application (LCA) for the occupational classification. 20 C.F.R. § 655.735. If any worker exceeds the workday limit within the one-year period, then the employer has violated the terms of its LCA(s) and the regulations. Id.

B. Grounds for Revocation

The Petitioner stated in the visa petition that the Beneficiary would work at its office located at California. The LCA submitted with the visa petition is only

certified for employment at this location. Based on the submissions with the visa petition, the

2

(b)(6)

Matter ofN-1-, Inc.

Director approved the visa petition for a period of intended employment from April 1, 2013 to March 31,2016.

Thereafter, the Director issued the notice of intent to revoke (NOIR) the approval of the petition. The Director noted that on January 27, 2014, an administrative site visit was performed at the

California worksite where the Beneficiary was to be employed, however, the Beneficiary was not working at that location. The Director stated that the evidence showed, inter alia, (1) that the beneficiary was no longer employed by the petitioner in the capacity specified in the petition, (2) that the statement of facts contained in the petition was not true and correct, (3) that the petitioner violated terms and conditions of the approved petition, and ( 4) that the petitioner violated the terms and conditions of H -1 B employment.

In response, the Petitioner provided a letter, dated March 13, 2015, stating the following:

During 2013 and into 2014, [the Beneficiary] was working in California where he maintained an office/workstation at the client location and was performing work as an employee of [the Petitioner]. From time to time, [the Beneficiary] would, at the direction of his manager at [the Petitioner], fly to Virginia to perform work on the project for brief periods of time. However, he maintained his apartment in

California, his office at that location, and worked a substantial amount of time in : _ at his permanent worksite. When in Virginia, he stayed at hotels or with a family member. He did not intend to move to Virginia and so kept his apartment in

until the lease ran out at the end of January 2014. See copies of [the Beneficiary's] lease and travel emails (Exhibits 7 and 8) evidencing that he had an apartment leased in and stayed in hotels in Virginia during this time period as he did only anticipate brief stays in Virginia.

When the project in January 2014 required a short-term work assignment to Virginia, [the Beneficiary] went on the understanding that it was for a brief period of time. When the project ran longer and [the Petitioner] directed [the Beneficiary] to stay to complete the work, it was with the understanding that the extension was for a brief period of time. When it became clear that the work was going to take even longer than anticipated, his manager upchained [sic] the updated work location to [the Petitioner's] Human Resources department, who notified our office, and a new LCA was obtained in March 2014 to reflect the change in work location for [the Beneficiary] (See Exhibit 3). Another LCA was certified in July 2014 as work on the project continued to evolve (See Exhibit 4).

The Petitioner claimed that the period of time the Beneficiary worked in Virginia was permissible under the short-term employment provisions at 20 C.F.R. § 655.735(c). The Director revoked the approval of the petition, finding, inter alia, that the Petitioner had not demonstrated that it had complied with the terms and conditions of the approved visa petition.

3

(b)(6)

Matter of N-1-, Inc.

II. ANALYSIS

The NOIR placed the Petitioner on notice that revocation of the approval of the petition was contemplated within the scope of the revocation-on-notice provisions, namely, that the approval of the petition violated the regulatory requirements regarding the proffered position at 8 C.F.R. § 214.2(h)(4)(iii)(A)(3). Upon review of the entire record, we conclude that the Petitioner violated that provision. 1

The visa petition was approved for full-time employment in from April 1, 2013 to March 31, 2016? In response to the NOIR, the Petitioner submitted documentation regarding the beneficiary travel between California and Virginia. More specifically:

• Emails show that the Beneficiary was scheduled to fly from to in Virginia, on April 24, 2013. The Beneficiary was booked

to stay in a Virginia hotel from April 24, 2013, to May 1, 2013. Another email shows that the Beneficiary was booked to stay in a Virginia hotel from May 1, 2013, to May 7, 2013. Yet another shows that the Beneficiary was booked to stay in a

Virginia hotel from May 7, 2013, to May 12, 2013. The Beneficiary was scheduled to fly from on May 12, 2013. The Beneficiary's stay in Virginia from April24, 2013 to May 12,2013, totaled 19 days.

• The Beneficiary was booked to stay in a Virginia hotel from May 14, 2013, to May 27, 2013. The Beneficiary was scheduled to fly from on May 27, 2013. The Beneficiary was also booked to stay in a Virginia hotel from May 27, 2013, to June 4, 2013. It appears from the evidence that the Beneficiary was in Virginia from May 14, 2013, to June 4, 2013, and that stay totaled 22 days.

• The Beneficiary was booked to stay at a Virginia hotel from June 4, 2013, to June 9, 2013. The Beneficiary was scheduled to fly from on June 9, 2013. That represents a stay of 6 days.

• An email shows that the Beneficiary was scheduled to fly from on June 14, 2013, and to return on June 30, 2013. The Beneficiary was booked to stay in a Virginia hotel on those same dates. On June 28, 2013, however, the Beneficiary sent a request for a two-week extension of stay to the Petitioner. The Beneficiary was booked to stay at a hotel in Virginia from July 1, 2013 to July 13, 2013. The Beneficiary was

1 We conduct appellate review on a de novo basis. Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 20 15); see also 5 U.S.C. § 557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule."); Dar v. INS, 891 F.2d 997, I 002 n. 9 (2d Cir. 1989). 2 The Petitioner represented in the Form 1-129, Petition for Nonimmigrant Worker, (pages 4 and 19) and in the job offer that the Beneficiary would be employed on-site at the Petitioner's office in California. The site visit revealed that the location specified in the initial filing was not that of the petitioning business but that of the client site. In response to the NOIR, the Petitioner stated that the Beneficiary was working in at a client location. The Petitioner did not provide an explanation for the discrepancy.

4

(b)(6)

Matter ofN-1-, Inc.

scheduled to fly from on July 13, 2013. The Beneficiary's stay in Virginia from June 14,2013, to July 13,2013 was for a total of30 days.

• An email shows that the Beneficiary was scheduled to fly from on August 4, 2013. Another email shows that the Beneficiary was scheduled to stay at a hotel in

Virginia from August 4, 2013, to August 16, 2013. These two emails are difficult to reconcile. However, if the Beneficiary was in Virginia from August 4, 2013, to August 16, 2013, that was a stay of 13 days.

• The Beneficiary was then scheduled to fly from on August 19,2013, and to return to on September 6, 2013. On September 6, 2013, however, the Beneficiary asked that his stay be extended until September 27, 2013. An email shows that the Beneficiary was scheduled to fly to on September 27, 2013. The Beneficiary's stay in Virginia from August 19, 2013, to September 27, 2013 encompassed 40 days.

• The Beneficiary was scheduled to fly from on December 26, 2013. • The Beneficiary was scheduled to fly from on January 5, 2014. The

record does not indicate that he ever subsequently returned to

The Petitioner asserts that the Beneficiary's work in Virginia constituted a short-term placement as permitted by 20 C.F.R. § 655.735(c). It relies upon a lease agreement to show that the Beneficiary retained his residence in The lease is for a period from February 1, 2013, to January 31, 2014.

As to the Beneficiary's employment during 2013, we observe that the provision at 20 C.F.R. § 655.735(c) would only permit the Petitioner's short-term placement of the Beneficiary at a location or combination of locations for a maximum of 60 workdays in a one-year period. The petition and supporting documents indicate that the Beneficiary was employed on a full-time basis, and the Petitioner's HR Coordinator confirmed to the site inspector that the Beneficiary was employed 40-hours per week and worked from 9:00 AM to 6:00 PM. The documentation provided by the Petitioner appears to indicate that the Beneficiary was employed in the Virginia location for more than 60 workdays.

Further, the evidence indicates that the Beneficiary traveled to Virginia on January 5, 2014, but there is no indication that he ever returned to California. Therefore, it appears the Beneficiary was employed in Virginia for a period of more than 60 workdays. Even if his work was within the 60-day maximum, the evidence does not show that the Beneficiary retained his residence after January 31,2014.

In response to the NOIR, the Petitioner provided several LCAs that were submitted to the U.S. Department of Labor in 2014 and 2015. The worksite locations are in California;

Virginia; . Virginia; Virginia; and Texas. We note, however, a petitioner may not make short-term placements at worksites in any area of employment for which the employer has a certified LCA for the occupational classification. 20 C.F.R. § 655.735. Further, a change in the place of employment of a beneficiary to a geographical area requiring a new LCA is

5

Matter ofN-1-, Inc.

a material change and requires that the Petitioner file a new or amended H -1 B visa petition. See Matter ofSimeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015). The submission ofthese LCAs to USCIS in response to the NOIR did not authorize the Beneficiary to change worksites. Moreover, one of the LCAs was certified for a more senior level position. Therefore, it appears that there was a material change in the job duties of the position.

We find that, fully considered in the context of the entire record of proceedings, the Petitioner's response to the NOIR did not overcome the grounds specified in the NOIR for revoking the petition. The appeal will be dismissed and approval of the visa petition will remain revoked on that basis.

III. CONCLUSION

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013) (citing Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966)). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofN-1-, Inc., ID# 15482 (AAO Feb. 8, 2016)