Non-Precedent Decision of the Administrative Appeals Office · 10,2016 APPEAL OF CALIFORNIA SERVICE...

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MATTER OF C-S-H-A-H-, INC. Non-Precedent Decision of the Administrative Appeals Office DATE: MAR. 10,2016 APPEAL OF CALIFORNIA SERVICE CENTER DECISION PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER The Petitioner, a contractor, seeks to temporarily employ the Beneficiaries as citrus hand harvesters under the H-2A nonimmigrant classification for agricultural labor or services. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(ii)(a), 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Under the H-2A program, a qualified U.S. employer may bring certain foreign nationals to the United States to fill temporary or seasonal agricultural jobs for which U.S. workers are not available. Although the Director, California Service Center, approved the petition, she subsequently revoked its approval upon receipt of additional information. Specifically, the Director revoked approval of the petition finding that (1) the Petitioner did not comply with prohibition against job placement fees; and (2) that the statement of facts contained in the petition was not true and correct. The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and disputes the Director's findings. Upon de novo review, we will dismiss the appeal. I. THE LAW A. The Law Governing the Approved H-2A Petition Section 101(a)(15)(H)(ii)(a) of the Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(a), which defines an H-2A temporary worker, states, in pertinent part: [An alien] having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services ... of a temporary or seasonal nature[.] The regulation at 8 C.F .R. § 214.2(h)( 5), Petition for alien to pe1jorm agricultural labor or services of a temporary or seasonal nature (H-2A), contains the particular provisions of the H-2A program.
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Transcript of Non-Precedent Decision of the Administrative Appeals Office · 10,2016 APPEAL OF CALIFORNIA SERVICE...

  • MATTER OF C-S-H-A-H-, INC.

    Non-Precedent Decision of the Administrative Appeals Office

    DATE: MAR. 10,2016

    APPEAL OF CALIFORNIA SERVICE CENTER DECISION

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

    The Petitioner, a contractor, seeks to temporarily employ the Beneficiaries as citrus hand harvesters under the H-2A nonimmigrant classification for agricultural labor or services. See Immigration and Nationality Act (the Act) § 101(a)(15)(H)(ii)(a), 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Under the H-2A program, a qualified U.S. employer may bring certain foreign nationals to the United States to fill temporary or seasonal agricultural jobs for which U.S. workers are not available.

    Although the Director, California Service Center, approved the petition, she subsequently revoked its approval upon receipt of additional information. Specifically, the Director revoked approval of the petition finding that (1) the Petitioner did not comply with prohibition against job placement fees; and (2) that the statement of facts contained in the petition was not true and correct.

    The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and disputes the Director's findings.

    Upon de novo review, we will dismiss the appeal.

    I. THE LAW

    A. The Law Governing the Approved H-2A Petition

    Section 101(a)(15)(H)(ii)(a) of the Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(a), which defines an H-2A temporary worker, states, in pertinent part:

    [An alien] having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services ... of a temporary or seasonal nature[.]

    The regulation at 8 C.F .R. § 214.2(h)( 5), Petition for alien to pe1jorm agricultural labor or services of a temporary or seasonal nature (H-2A), contains the particular provisions of the H-2A program.

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    B. The Law Governing the Director's Revocation

    The first ground of revocation was the requirement at 8 e.F.R. § 214.2(h)(5)(xi), which states that no job placement fee or other compensation may be collected at any time from a beneficiary of an H-2A petition by "a petitioner, agent, facilitator, recruiter, or similar employment service as a condition of H-2A employment."

    The regulation at 8 e.F.R. § 214.2(h)(5)(xi) reads as follows:

    Treatment of petitions and alien beneficiaries upon a determination that fees were collected from alien beneficiaries.

    (A) Denial or revocation of petition. As a condition of approval of an H-2A petition, no job placement fee or other compensation (either direct or indirect) may be collected at any time, including before or after the filing or approval of the petition, from a beneficiary of an H-2A petition by a petitioner, agent, facilitator, recruiter, or similar employment service as a condition of an offer or condition of H-2A employment (other than the lesser of the fair market value or actual costs of transportation and any government-mandated passport, visa, or inspection fees, to the extent that payment of such costs by the beneficiary is not prohibited by statute or Department of Labor regulations, unless the employer agent, facilitator, recruiter, or similar employment service has agreed with the alien to pay such costs and fees).

    (I) If USers determines that the petitioner has collected or entered into an agreement to collect, such prohibited fees, the H-2A petition will be denied or revoked on notice unless the petitioner demonstrates that, prior to the filing of the petition, the petitioner has reimbursed the alien in full for such fees or compensation, or, where such fee or compensation has not yet been paid by the alien worker, that the agreement has been terminated.

    (2) If users determines that the petitioner knew or should have known at the time of filing the petition that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service such fees as a condition of obtaining the H-2A employment, the H-2A petition will be denied or revoked on notice unless the petitioner demonstrates that, prior to the filing of the petition, the petitioner or the facilitator, recruiter, or similar employment service has reimbursed the alien in full for such fees or compensation or, where such fee or compensation has not yet been paid by the alien worker, that the agreement has been terminated.

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    (3) If USers determines that the beneficiary paid the petitioner such fees or compensation as a condition of obtaining the H-2A employment after the filing of the H-2A petition, the petition will be denied or revoked on notice.

    ( 4) If USe IS determines that the beneficiary paid or agreed to pay the agent, facilitator, recruiter, or similar employment service such fees or compensation as a condition of obtaining the H-2A employment after the filing of the H-2A petition and with the knowledge of the petitioner, the petition will be denied or revoked unless the petitioner demonstrates that the petitioner or facilitator, recruiter, or similar employment service has reimbursed the beneficiary in full or where such fee or compensation has not yet been paid by the alien worker, that the agreement has been terminated, or notifies DHS within 2 workdays of obtaining knowledge in a manner specified in a notice published in the Federal Register.

    The second ground ofrevocation was the requirement at 8 e.F.R. § 214.2(h)(ll)(iii)(A)(2) to revoke approval of a petition if it is determined that the statement of facts contained in the petition was not true and correct, inaccurate, fraudulent, or misrepresented a material fact.

    The regulation at 8 e.F.R. § 214.2(h)(ll)(iii) states the following:

    (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:

    (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, inaccurate, fraudulent, or misrepresented a material fact; 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 (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

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    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.

    II. BACKGROUND

    The Petitioner filed the Form I-129, Petition for a Nonimmigrant Worker, on October 21, 2011, asserting a temporary need for the Beneficiaries' services as citrus hand harvesters. The Director approved the petition on October 28, 2011.

    The U.S. Embassy in . however, declined to issue the H-2A visas pursuant to the approved H-2A petition. Instead, it returned the petition to the Director, with a memorandum requesting initiation of proceedings to revoke the petition's approval, based upon issues that came to light during the Beneficiaries' visa interviews. In tum, the Director issued a notice of intent to revoke (NOIR) approval ofthe petition on April 17, 2012.

    A. The NOIR

    After its citation to the revocation-upon-notice regulations, the NOIR communicated its factual basis as follows:

    In a memorandum dated December 20, 2011, the United States Embassy in notified USCIS [(United States Citizenship and Immigration Services)] that it

    refused to issue [a] visa to the beneficiaries and returned the petition for possible revocation because during the visa interview and/or in a subsequent investigation by the Department of State, information was revealed that was unknown to USC IS at the time the petition was approved. The information discovered by the Consulate includes the following:

    The Fraud Prevention Unit (FPU) m has interviewed three beneficiaries under this petition, including

    , and In separate interviews conducted by [the] FPU investigator, two of the three beneficiaries admitted that they will have to pay placement fees once they receive their approved visa. All beneficiaries were recruited through the involvement of the local Philippines employment agency,

    However, on the Form I-129, the petitioner stated that they did not use a staffing, recruiting, or similar placement service or agent to locate their workers.

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    The beneficiaries, and confirmed in their sworn statement that were informed by the local agency, that they would be required to pay a placement fee to the local agency once they receive their approved visa. The beneficiaries further explained that [the Petitioner] will [deduct] the amortization amount from their salary then they [will] send the amount to the lending company in the Philippines through

    The involvement of the local agency in the recruitment of these beneficiaries and the charging of fees as disclosed by the beneficiaries,

    and appear to constitute relevant information unavailable to USCIS at the time that this petition was approved.

    The petition may not be approved for an additional reason: [the] Form I-129 Supplement H indicates that the [H-2A] workers you plan to hire are corning from Mexico. However, the three beneficiaries mentioned above are citizens of the Philippines[.]

    B. The Petitioner' s Response to the NOIR

    The Petitioner's response to the NOIR consisted, inter alia, of the following: (1) a letter from the Petitioner dated May 10, 2012; (2) a letter written to the U.S. Ambassador to the Philippines regarding the lack of agricultural workers in the United States; (3) letters from several local leaders in the Philippines written in support of the petition; ( 4) a copy of a "No Fee Form" which the Petitioner claims it requires all prospective H-2A employees to sign twice; and (5) an affidavit executed by in which he claims to have paid no job placement fees.

    In its NOIR response letter, the Petitioner asserted that it "informed the U.S. Department of Labor at the time of the Labor Certification process that Mexicans and Filipino workers will be recruited and hired" but also acknowledged that it was "a mistake on our part not ... to officially notify the U.S. consulate in The Petitioner also stated that "confession or admission from the so called 2 applicants ... makes their finding highly irregular, unusual, unfounded and baseless." The Petitioner did not explain why it stated on the Form I-129 that it had not used, and had no plans to use, a staffing, recruiting, or similar service to locate the H-2A workers it intended to hire via the approved visa petition. Instead, the Petitioner explained the merits of using such a service.

    C. The Revocation Decision

    The Director revoked approval of the petition on June 26, 2012. The revocation decision recounts the information that the NOIR had presented as the reasons for initiating the revocation action, and ~epeats verbatim, paragraphs of the NOIR that notified the Petitioner of the fee-payment issues and incorrect information presented on the Form 1-129 that generated the NOIR.

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    D. The Appeal

    On appeal, the Petitioner submits: (1) a brief; (2) an affidavit from President of ; (3) a letter from written to the Director; ( 4) a contract executed between

    and . and (5) an affidavit executed by in which he claims to have paid no job placement fees.

    III. ANALYSIS

    A. Job Placement Fees

    On appeal, the Petitioner submits an affidavit from President of who prepared the Form I-129 on behalf of the Petitioner. In his August 24, 2012, affidavit, explains that his company engaged the services of to aid the Petitioner in the recruitment of workers in the Philippines, and that then separately teamed with

    According to the Petitioner had no communications with either was not aware that had engaged the services of

    and "had no involvement in the actual recruiting process." claimed that none of the workers recruited in the Philippines paid job placement fees and that, to the best of his knowledge, "no amounts in the way of placement fees were collected from the beneficiaries by either

    The Petitioner also submits an affidavit from who claims he did not pay a job placement fee. 1

    On appeal, the Petitioner asserts that and did not pay any job placement fees , and cites affidavit in support of that assertion. The Petitioner also cites statement that the Petitioner had no involvement of the recruitment efforts in the Philippines and, based upon that premise, claims that the petition cannot be revoked under 8 C.F .R. § 214.2(h)(5)(xi)(A) because the Petitioner lacked knowledge ofthose recruitment efforts.

    1 The Petitioner also submits, and cites to, an agreement executed between and . However, this document holds little evidentiary weight. First, the portion of the agreement to which the Petitioner cites calls for an unidentified Philippine provincial government, or provincial public official , to "provide their assurance that no worker pays for, or contributes to, in any way directly or indirectly to be part of the H2A Visa Program." No particular province or provincial public official is identified, and the agreement is not signed by any Philippine provincial authority. The binding nature of this "assurance" on any government official in the Philippines, therefore, has not been established. It is noted further that this agreement does not call on either of the two entities which are its signatories - again,

    and -to ensure that no such job placement fees are paid.

    Second, it is noted that this agreement was not signed by a representative of until May 13, 2012, nearly a month after the Director issued her NOIR and long after the Beneficiaries who are at issue in this matter had been recruited. It is therefore not clear that this agreement guided the recruitment of the Beneficiaries in any way.

    For both of these reasons, this agreement will be afforded little evidentiary weight and neither it, nor the Petitioner's citations to it, will be addressed further.

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    We are not persuaded by the Petitioner's arguments and the evidence it submits in their support. First and foremost, the evidence of record establishes clearly that the Petitioner used the services of a staffing, recruiting, or similar service or agent to locate its H-2A workers. However, as noted above the Petitioner specifically claimed at page 14 of the Form I-129 Supplement H, Section 3, Item 7, that it did not, and would not, use a staffing, recruiting, or similar placement service or agent to locate the H-2A workers that it intended to hire by filing this petition. The Petitioner also left blank the field on the Form I-129 Supplement H where it was instructed to provide the name and address of any staffing, recruiting, or similar placement service or agent that it would use.2 When he signed the Form I-129 on October 20, 2011, the Petitioner's President certified that the petition and all evidence submitted in its support were true and correct. However, the record establishes that the Petitioner was working with a staffing, recruiting, or similar service or agent to locate its H-2A workers, and the Petitioner's apparent lack of disclosure regarding its relationship with these companies when it filed the Form I-129 diminishes the evidentiary value of its testimony regarding the actions of any of those companies.

    The Petitioner's submission of statements that are inaccurate and untrue brings into question the reliability and sufficiency of the remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). If USCIS does not believe that an asserted fact stated in the petition is true, USCIS may reject that assertion. See section 214(c)(l) of the Act, 8 U.S.C. § 1184(c)(l); see also Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001); Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir. 1989).

    Although the record now contains written statements from both and disclaiming any obligation to pay job placement fees, neither individual explains why he executed a sworn statement on November 21, 2011, stating precisely the opposite.3 Consequently, we assign their most recent statements little evidentiary weight. Nor has the Petitioner submitted any evidence to substantiate the generalized allegations made by the Petitioner in its May 10, 2012, letter regarding the allegedly unscrupulous, overzealous, and harassing actions of the consular officers who interviewed the Beneficiaries. That allegation therefore also holds little probative value. Further, told the consular officers that the Petitioner will deduct the amortization amount from his salary and send the amount to the lending company in the Philippines through to pay off his loan from paying placement fee. Therefore, the Petitioner's claim that it was not aware of involvement is also not credible, and the Petitioner has not provided objective documentary evidence to substantiate its claim. "[G]oing on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these

    2 The Petitioner also claimed at Page 14, Section 3, Item 8 of the Form 1-129 Supplement H, that none of the H-2A workers that it had located or planned to hire had paid it, or any service or agent, any form of compensation as a condition of employment, or that such workers had an agreement to pay the Petitioner or service or agent any form of compensation at a later date. 3 Further, given the Petitioner's dismissal of and as "weak souls" in its May 10, 2012, letter, to discount these individuals' statements when they did not support those of the Petitioner, we are unable to grant any deference to their statements now that they do agree with those of the Petitioner.

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    proceedings)' See Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure CraftofCal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)).

    We find that the Petitioner did not provide sufficient evidence to rebut the Director's finding that at least two Beneficiaries of the instant petition, were expected to pay placement fees as a condition of the offer of employment. The Director therefore properly revoked the approval of this petition pursuant to 8 C.F.R. § 214.2(h)(5)(xi)(A).

    B. The Petition Contained Statements of Facts that Were Not True and Correct

    We turn next to the Director's finding that certain statements of fact made in the petition were not true and correct. The Petitioner stated on the Form 1-129 that the Beneficiaries were all nationals of Mexico, when in fact some Beneficiaries were nationals of the Philippines. In response to the NOIR, the Petitioner asserted that it "informed the U.S. Department of Labor at the time of the Labor Certification process that Mexicans and Filipino workers will be recruited and hired." However, the application for temporary employment certification in the record of proceedings does not request information regarding the workers' country of citizenship, and accordingly, does not contain such inforn1ation. The Petitioner also asserted that "we assumed that the U.S. consulate will be officially informed by the USCIS California Service Center since the hiring of Mexican and Filipino workers were contained and included in the petition that we filed." However, in the Form I-129, the Petitioner only indicated Mexico, as the U.S. consulate to be notified. Further, at page 13 of the Form I-129 Supplement H, Section 3, item 4, the Petitioner listed "Mexico" and no other, for countries of citizenship of the H-2A workers that it plans to hire. "[I]t is incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence." See Matter of Ho , 19 I&N Dec. at 591. Any attempt to explain or reconcile such inconsistencies will not suffice unless the Petitioner submits competent objective evidence pointing to where the truth lies. !d. at 591-92.

    On appeal, the Petitioner submits a letter dated January 3, 2012, that mailed to USCIS regarding the petition, requesting that USCIS "transfer" fifteen visa approvals from Mexico to the Philippines. However, this letter was sent long after the petition had been approved by the Director and notice of the approval cabled to the U.S. Consulate in The Petitioner's assertions that "neither [the Petitioner] nor its agent was alerted to any defect in the Petition" is not supported by the record, as the Petitioner acknowledged that the Beneficiaries were informed of this defect when their visas were refused - again, in November 2011, several weeks before

    sent this letter.

    4 The petition was approved on October 28, 2011. The Beneficiaries were interviewed at the U.S. Consulate in on November 21, 2011, and the Petitioner acknowledged in its May I 0, 2012, letter that the Beneficiaries were told by the consulate at that time that the petition was invalid because the Petitioner had stated that the Beneficiaries would all be nationals of Mexico. It was only on January 3, 2012 -more than two months after the petition was approved and more than one month after the Beneficiaries ' visas were refused - that wrote this letter attempting to amend the Form I-129 to notify USCIS that the Beneficiaries were not all Mexican nationals.

  • Matter ofC-S-H-A-H-, Inc.

    Furthermore, as noted above, the Petitioner claimed on the Form I-129 that it did not, and would not, use a staffing, recruiting, or similar placement service or agent to locate the H-2A workers that it intended to hire by filing the petition. The Petitioner also did not provide a name and address of any staffing, recruiting, or similar placement service or agent that it would use. As discussed, the evidence of record establishes conclusively this material statement of facts contained in the petition was not true and correct. 5 The Petitioner's submission of an H-2A petition that contains statements that are not true and correct brings into question the reliability and sufficiency of the remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. at 591.

    As the petition contained statements that were not true and correct, the Director properly revoked its approval pursuant to 8 C.F.R. § 214.2(h)(11)(iii)(2).

    IV. CONCLUSION AND ORDER

    As set forth above, we find that the Petitioner has not overcome the Director's stated grounds for revocation of the petition's approval. Accordingly, the Director properly exercised her authority to revoke approval of the petition pursuant to 8 C.F.R. § 214.2(h)(5)(xi)(A) and (11)(iii)(A)(2), and her decision will not be disturbed.

    In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe 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 ofC-S-H-A-H-, Inc., ID# 13453 (AAO Mar. 10, 2016)

    5 See also 8 C.F.R. § 214.2(h)(l O)(ii) (which provides that a petition shall be denied if it is determined that the statements on the petition were inaccurate, fraudulent, or misrepresented a material fact). See also 8 C.F.R. § l03.2(b)(l).

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