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Material Changes and H-1B Revocation

May 25, 2015

RejectedMany companies are pushing to increase the annual cap on H-1B visas, but this effort has found opposition. Some say the program is riddled with fraud, while others oppose the program altogether. Perhaps because of this, USCIS goes to great lengths to enforce its regulations. A recent case reveals insights into how it does so.

The case, Matter of Simeio Solutions, involves an H-1B beneficiary who was ostensibly (according to the I-129 petition) hired to complete “in-house projects” for clients at the company’s home office in Long Beach, CA. The beneficiary would thus not be sent to other worksites and would only work under the petitioner. The Labor Condition Application (LCA) and included Prevailing Wage Determination (PWD) reflected this. However, if USCIS was convinced that these circumstances would not change, it wasn’t for very long.

The beneficiary began working for Simeio as an F-1 student during OPT (which is a short-term work authorization that alien college students can take advantage of after graduation). During this time, an H-1B petition was filed on behalf of the immigrant by this same company, which was approved. The beneficiary then went home to undergo a consular interview to receive the visa. As usual, the consular officers wanted to verify some things on the petition. It is not public information what the officer said in the interview, but it is known that as a result, the petitioner was made to submit some additional evidence.

The evidence requested pertained to the specific role the beneficiary would fulfill in relation to the work done for the clients mentioned in the petition. Also requested was a letter from one of these clients, confirming some information. The consular officers seem to have correctly suspected something. When the petitioner came in contact with the State Department, it was not to provide this specific evidence. Instead, it was to indicate that the beneficiary’s role was slightly different than what was described on the petition. The beneficiary was in fact working for several other clients in the area, none of which were described on the petition. Though they may have appeared satisfied with the petitioner’s response, the consular officers forwarded the petition along with this new information back to USCIS.

USCIS’ response was swift. Agents conducted a surprise site visit of the petitioner’s home office–only to find that the space was no longer in use. They then contacted the signer of petition, who confirmed that the company instead was using an employee’s place of residence as the primary business address. The agents went there and interviewed the employee. They then determined that many employees, including the beneficiary at the heart of the case, were each assigned to several (at that point undisclosed) end-clients–and were working from their homes. The discrepancy between the petition and reality was enough for the agency to send out a Notice of Intent to Revoke (NOIR) the petition.

Simeio had the ability to respond to the NOIR, which it did with the apparent desire to save its case. The information provided cohered well with the results of the investigation. The company revealed that the beneficiary was in fact operating in worksites different from the one originally disclosed, but these sites were in areas very far away from the territory covered by the original LCA. This means that a new LCA and PWD would have been required before the beneficiary could have gone to work at the other locations. These were included in the NOIR response, but USCIS was unmoved and revoked the petition. It was too little too late.

In order to avoid situations like Matter of Simeio Solutions, any time there is a change in an H-1B worker’s situation that “may affect eligibility” (which is otherwise known as a “material change”), an amended (or new) petition reflecting it must be submitted. Changes in geographic area affect prevailing wage, so a new PWD was required. In fact, the prevailing wage for the beneficiary’s position in the original area was much less than in the areas where the work was actually being done. Because the beneficiary was paid a wage very close to the original prevailing wage, the petitioner was in actual violation of the H-1B program (for paying the beneficiary less than the true prevailing wage). But USCIS holds that even if this were not the case, there would still have been a revocation, because the actions of the company had the possibility of affecting the beneficiary’s eligibility.

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