U.S. Department of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
20 Massachusetts Ave., N.W., MS 2090
Washington, DC 20529-2090
U.S. Citizenship and Immigration
Services
JBDM JEWELRY, LLC
ATIN: DMITRY MARMERSHTEYN, CEO
801 S. FLOWER STREET, SUITE 405
LOS ANGELES, CA 90017
Date: AUG 06 2044 Office: NEBRASKA SERVICE CENTER FILE: A89 049 392 WAC 06 024 51521
IN RE: Petitioner: JBDM JEWELRY LLC
Beneficiary: © SUNDARAM SRIHARAN KALYANA
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
RALPH EHRENPREIS
RALPH EHRENPREIS, A PROFESSIONAL LAW CORPORATION
1880 CENTURY PARK EAST, SUITE 550
LOS ANGELES, CA 90067
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. Ron Rosenberg
Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, initially approved the preference visa petition. Subsequently, the director issued a notice of intent to revoke the approval of the petition (NOIR). Ina Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for Alien Worker (Form I-140). The matter then came before us on appeal. We withdrew the director’s decision, because the petition was not approvable, and because the director revoked the approval of reasons not mentioned in the NOIR. We remanded the petition to the director for the issuance of a new NOIR. On January 24, 2014, the director issued a notice of intent to deny (NOID), with a copy to the petitioner and its attorney.. On March 27, 2014, the director denied the petition and certified the decision in a Notice of Certification (NOC) to us.” We will withdraw the director’s decision and remand the petition for further action and consideration.
Section 205 of the Act, 8 U.S.C. § 1155, states, in pertinent part, that the Secretary of Homeland Security “may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204.”
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of Immigration Appeals has stated:
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is properly issued for “good and sufficient cause” where the evidence of record at the time the notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition based upon the petitioner’s failure to meet his burden of proof. The decision to revoke will be sustained where the evidence of record at the time the decision is rendered, including any evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)).
By itself, the director’s realization that a petition was incorrectly approved is good and sufficient cause for the revocation of the approval of an immigrant petition. Jd. The approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the visa application process. Jd. at 589. The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Id.
The petitioner is a fashion diamond jewelry company. It seeks to employ the beneficiary permanently in the United States as a financial analyst pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). As required by statute, a certified Application for Permanent Employment Certification, ETA Form 9089, accompanied the petition. The director determined that the beneficiary did not satisfy the minimum level of education stated on the Form ETA 9089. The director revoked the petition accordingly.
In pertinent part, section 203(b)(2) of the Act, 8U.S.C. § 1153(b)(2), provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States. An advanced degree is a United States academic or professional degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. § 204.5(k)(2). The regulation further provides: “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree.” Jd.
The beneficiary possesses a Certificate from the Institute of Chartered Accountants of India (ICAI) and a three-year Bachelor of Commerce degree from the University of Madras. In the NOID and the subsequent denial, the director determined that the beneficiary’s credentials did not meet the job requirements set forth on the ETA Form 9089.
Regarding the director’s conclusion that the beneficiary does not meet the job requirements set forth on the ETA Form 9089, counsel asserted on appeal that the beneficiary has the foreign educational equivalent of a bachelor’s degree, which the ETA Form 9089 permits. The director, however, did not raise the beneficiary’s eligibility for the classification sought in the NOIR. A revocation can only be grounded upon, and the petitioner is only obliged to respond to, the allegations in the NOIR. 8 C.F.R. § 205.2(b); Matter of Arias, 19 I&N Dec. 568, 570 (BIA 1988). Our remand dated June 4, 2013 specifically advised the director to issue a new NOIR.
The director’s NOID dated January 24, 2014, though mislabeled, would have sufficiently informed the petitioner of the reasons why the petition must be revoked. Nevertheless, the NOID went to the petitioner’s attorney of record and no copy of the NOID was sent to the petitioner. Neither the petitioner nor its attorney responded to the NOID.? The director sent the subsequent NOC to an old address of the petitioner at 18943 Vickie Ave. Apt 50, Cerritos, CA 90703, and did not send the NOC to the petitioner’s attorney of record. The record contains a new address for the petitioner, 801 S. Flower Street, Suite 405, Los Angeles, Ca 90017.’ The NOC was returned as undeliverable.
There is no record that the petitioner received the NOID or the NOC. The petitioner has not been afforded an opportunity to respond to the NOID or to the NOC. As such, the director’s NOC will be withdrawn and the petition will be remanded. The director must issue an NOIR to the petitioner outlining the deficiencies in the record with respect to whether the beneficiary’s degree qualifies as a foreign equivalent degree and whether the beneficiary qualifies as an advanced degree professional, 3 The petitioner’s counsel last appeared in this proceeding in 2010.
“ The new address appears on a subsequently filed Form I-140 petition by the same petitioner. p. 4 and give the petitioner the opportunity to respond as outlined in 8 C.F.R. §205.2(b). Upon consideration of any response, the director should consider whether there is good and sufficient cause to revoke the approval of the petition.
In view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to the director for the issuance of a NOIR for reasons set forth in our decision dated June 4, 2013. The director may request any additional evidence considered pertinent. Similarly, the petitioner may provide additional evidence within a reasonable period of time to be determined by the director. Upon receipt of all the evidence, the director will review the entire record and enter a new decision in accordance with the regulation at 8 C.F.R. §205.2(c).
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361.
ORDER: The director’s decision is withdrawn. Because the petition is not approvable, the petition is remanded to the director for issuance of a new, detailed decision which, if adverse to the petitioner, is to be certified to the Administrative Appeals Office for review.