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MotionEB-2 · Motion to reopen

Senior programmer analyst

Computing, AI & data · decided 2018-08-16 · TSC · AUG162018_02B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director concluded that, in addition to misrepresenting material facts, the Petitioner did not establish the Beneficiary's qualifications for the offered pos1t1on. See in text

What the AAO decided

Main reasons given

  • The Beneficiary, however, neither claims nor establishes that he properly requested to port under Section 204(j) of the Act and V-S-G-. See in text
  • Because the Beneficiary has not established standing, his motions do not meet applicable requirements and must be denied. 8 C.F.R. § 103.5(a)(4). See in text
Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (3) AAO finding (2)Matter of X citation

    Non-Precedent Decision of the Administrative Appeals Office MATTER OF A- CORP. DATE: AUG. 16, 2018 MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a provider of information technology solutions, sought to employ the Beneficiary as a senior programmer analyst. It requested his classification under the second-preference immigrant category as a member of the professions holding an advanced degree or its equivalent. Immigration and Nationality Act (the Act) section 203(b)(2)A), 8 U.S.C. § 1153(b)(2)(A). This employment- based, "EB-2" category allows a U.S. business to sponsor a foreign national with a master's degree, or a bachelor's degree followed by five years of experience, for lawful permanent resident status.

    After initially granting the filing, the Director of the Texas Service Center revoked the petition's approval. The Director invalidated the accompanying certification from the U.S. Department of Labor, finding that the Petitioner misrepresented a material fact involving the certification. On appeal, we withdrew the Director's decision and remanded the matter for consideration of other potential grounds of revocation.

    After receiving the Petitioner's response to a new notice of intent to revoke (NOIR), the Director again revoked the petition's approval. The Director concluded that, in addition to misrepresenting material facts, the Petitioner did not establish the Beneficiary's qualifications for the offered pos1t1on. On appeal, we withdrew the misrepresentation finding, but affirmed the petition's revocation based on unresolved evidentiary discrepancies regarding the Beneficiary's claimed qualifying experience. See Matter ofA- Corp., ID# 696382 (AAO Dec. 15, 2017).

    The matter is now before us on the Beneficiary's motions to reopen and reconsider. The Beneficiary submits additional evidence and asserts that the passage of more than six years from the petition's approval to the issuance of the second NOIR prevented the parties from completely responding to the revocation allegations. The Beneficiary also asserts that he may continue to use the priority date ofthe revoked petition for immigration purposes, or he and his family would suffer severe hardship.

    Upon review, we will deny the motions.

    Matter ofA- Corp.

    The record lacks evidence of the Petitioner's consent to the filing of these motions.1 The Beneficiary signed the Form I-290B, Notice of Appeal or Motion, and the accompanying Form G-28, Notice o f Entry o f Appearance, authorizing counsel to represent him.

    Department of Homeland Security regulations do not allow beneficiaries to file motions. Rather, only an "affected party" may file a motion. 8 C.F.R. § 103.5(a)(l)(i). The term "affected party" means "the person or entity with legal standing in a proceeding. It does not include the beneficiary ofavisapetition." 8C.F.R.§103.3(a)(l)(iii)(B)(emphasisadded).

    Under a decision that U.S. Citizenship and Immigration Services (USCIS) adopted as policy, the Beneficiary asserts his standing in these proceedings. See Matter ofV-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). In V-S-G-, we interpreted the regulations to treat beneficiaries as affected parties in petition revocation proceedings if they qualify for "portability." Under the portability provision, approved petitions remain valid even after eligible beneficiaries change jobs or employers. Section 204G) of the Act, 8 U.S.C. § 1154(j). A beneficiary of a valid petition, whose application for adjustment of status remains pending for at least 180 days, may "port" the petition to a new job if that position is in the same or similar occupational classification as the job offered in the petition. Id. Thus, even though a petitioner and beneficiary no longer intend to enter into a permanent employment relationship, a petition may remain valid for purposes of the beneficiary's adjustment of status.

    In V-S-G-, we held that portability-eligible beneficiaries may participate in revocation proceedings if they have qualifying new job offers of which USCIS received notice. Matter of V-S-G-, Adopted Decision 2017-06 at *10 (emphasizing a qualifying beneficiary's need to properly request portability by informing USCIS ofthe details ofa newjob offer). USCIS published the adopted decision before the Beneficiary's filing of these motions. The Beneficiary, however, neither claims nor establishes that he properly requested to port under Section 204(j) of the Act and V-S-G-. The Beneficiary therefore lacks standing in these proceedings.

    Because the Beneficiary has not established standing, his motions do not meet applicable requirements and must be denied. 8 C.F.R. § 103.5(a)(4).

    ORDER: The motion to reopen is denied.

    FURTHER ORDER: The motion to reconsider is denied.

    Cite as Matter ofA- Corp., ID# 1567465 (AAO Aug. 16, 2018) 1 The Beneficiary asserts that the petitioning corporation dissolved and ceased operations. A search of online public records as ofJune 26, 2018, did not confirm the Beneficiary's assertion.