Degree or an Alien of Exceptional Ability Pursuant to Section :i03(b )(2) of the Immigration andNationality Act, 8 U.S.C. § 1153(b)(2) .
ON aEHALf OF PETITIONER:
INSTRUCTIONS:
EnClosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent ded.sioQ. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions.
Thank you,
E!J~f! 14'-~
Ron Rosenberg
Chief, Administrative Appeals Office
~.usci$.gov
DISCUSSION: The .employment-based preference visa petition was initially approved by the DirectOr, Texas Service Center. In 'connection with the beneficiary~ s Application to Register Permanent Resident or Adjust Status (Fonil 1-485), the director served the petitioner with notice of in.ten_t to revoke the approval of the petition (NOIR). In a Notice of Revocation (NOR), the director ultimately revoked the approval of tbe Form 1-140, Immigrant Petition for Alien Worker. The direCt()r dismissed a sut?sequent motion. The matter is now before the Administrative Appeals Office (AAO) 011 appeal. The director's decision will be withdrawn. The matter will be remanded to the . Texas Service Center.
Section 205 of the Act, 8 U.S.C. § 1155, provides that "[t]he Attorney General [now Secretary, Department of Homeland Security], may, ~t any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204." The realization by the cHrector that the petition was approved in error may be good and sufficient cause for revoking the· approval. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 198.8).
The petitioner describes itself as an information technology company. It seeks to perm!l.nently el)lploy the beneficiary in the Un.ited States as a financial engineer. The petitioner requests classification of the beneficiary as an advanced degree profession<~.) pursuant to section 203(b )(2) of the Immigration and Nationality Act (the Act), 8 U .S.C. § 1153(b )(2).1 · The appeal is properly filed and makes a specific allega,tion of error in law or fact. The procedural history in this case is documented by the record aiid incorporated into the decision. Further elaboration of the proceduralbistory will be made only as necessary.
The AAO conducts appellate review on a de novo basis. See Soltan.e v. DOl, 381 F.3d 143, 145 (3d Cir. 2004). The MO considers all pertinent · evidence in the' record, including new evidence p:ropetly submitted upon appeal.2
The director's decision revoking the approval of the petition concludes that the beneficiary never intended to take employment with the petition.er J.Ipon his adjustment of status to that of a legal permanent resident.
The regJ.Ilation at 8 C.P.R. § 205.2 reads:
(a) GeneraZ: Any Service (USCIS] officer authoriz .ed to approve a petition under section 204 of the Act may revoke the ,approval of that petition upon notice to the 1 Section 403(b)(2) of the Act provides immigrant classification to members of the professions . holding advanced degrees, whose services a,re sought by an employer in the United States.
petitioner on any ground other than those specified in § 205.1 when the necessity for the revocation comes to the attention of this Service [USCIS].
Further, Matter of Arias, 19 I&N Dec. 568 (BIA 1988); Matter of Estime, 19 I&N Dec. 450 (BIA 1987) provide that:Claims not backed by documents
A notjce Qf intention to revoke the approval of a visa petition is properly issued fot "good and sufficient cause" when the evidence of record at the time of issuance, if unexplained and untebutted, would warrant a denia_l of the visa pet_ition based upon the petitioner's failure to meet his burden of proof. i-IO\yever, where a notice of intention to revoke is based upon an unsupported statement, revocation of the vis.a petition cannot be sustained. ·
Here, in the Notice of Intent 'to Revoke (NOIR) dated September 9, 2010, the director wrote: A review of the beneficiary's circlJlllstanc.es shows that he formed the company under which he is now attempting to port, approximately one week after the aeproval of his Form 1-140. He departed the petitioning company to work for in December after his Form 1-485 application had been pending {or 6 months, whicl) is the period of time needed to benefit from the portability · provisions Of AC2l. 3 In short; it appears that while the petitioner had the intent to · employ the beneficiary, the beneficiary did not have the intent to remain employed with the petitioner. The
l, 2,006, indicating its continuing intention tci employ the beneficiary in the .position of financial engineer; an Internal Revenue Service (IRS) Form W-2 issued by the petitioner to the beneficiary · indicating payment of wages in 2007 of $40,167; the beneficiary's Form I-485 adjustment of Status application filed June 6, 2007; materials indicating that the beneficiary foll11ed a company in 2005; Form. G-28 signed by the petitioner on June 15, 2011 authorizing the filing of a motion before the director; and Form G-28 signed by the petitioner on November 29, 2012 authorizing the filing ofthe current appeal. ·
In view of the beneficiary's porting to self-employment, the AAO recognizes the director's concern about the bona fides of the job offer and the beneficiary's intention to work for the petiti<mer. Nevertheless, the record does not establish that the petitioner · did not intend to employ the beneficiary at the time of filing the application for labor certificCJ.tion, the petition for immigrant visa, br when he signed the letter of intent to employ in June, 2007. Furt.her, Ow record does not · sufficiently establish tha.t because the beneficiary ported to his own company in December 2007 that he did not intend to work for the petitioner at the time that he filed the Form I-485 application to adjust status or before. The record does not esta.blish good and sufficient cause to revoke the approval of the petition based · on a finding that the job offer was not bona fide.
Nevertheless, it is unclear from the record , whether the petition is approvable. The AAO will thus withdraw the deCision of the director, and remand to the director to make a determination on Whether the petitioner has established eligibility for the underlying immigrant visa · classification. If the petition is not approvable, the director should issue a new NOIR specifically outlining the deficiencies of the petition, and give the petitioner the opportunity to re&pond to such concern.s. In view of the foregoing, the previous decisions of the director is withdrawn. The petition is remanded to t.he director for further consideration, and if appropriate, the issuance of a pew NOIR. The director may request any additional evidence considered pertinent. Similarly, the petitioner may provide additional eyidence within the allowable period of time. Upon review of all the evidence, the di.rector will enter a new decision which, if adverse to the petitioner, is to be certified to t.b.e AAO fot review1
OJIDER: The director's decision is withdtaWI1; the petition is remanded to the director for review &nd issuance of a new decision which, if adverse to the petitioner, is to be certified to the Administrative Appeals Office for review.