The Petitioner, a provider of medical services, seeks to permanently employ the Beneficiary as a healthcare administrator. It seeks classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1153(b)(2)(A). This classification allows a U.S. employer to sponsor a professional with an advanced degree to obtain lawful permanent resident status.
1 After the petition was initially approved, the Director of the Texas Service Center revoked the petition's approval. The Director concluded that, as of the approval, the record did not establish. as required, the bona fides of the job opportunity or the Petitioner's ability to pay the proffered wage. The Director also invalidated the accompanying labor certification, finding that the Petitioner willfully misrepresented the Beneficiary's status as a corporate officer of the company and his familial relationship to another officer. The Director subsequently denied the Petitioner's motion to reopen and reconsider.
The matter is now before us on the Petitioner's appeal. The Beneficiary in this case also tiled an appeal of the Director's decision. Although normally not the case, under certain circumstances described below. a beneficiary may be considered to be an af1ected party in immigrant petition revocation proceedings. In this case, because the Director did not determine the Beneficiary's eligibility to participate in the revocation proceedings, we will withdraw the Director's decision and remand this matter for further proceedings concerning both the Petitioner and the Beneficiary.
Whether the Beneficiary Is an Affected Party
U.S. Citizenship and Immigration Services (USCIS) regulations do not generally allow a beneficiary to appeal a petition's revocation. See 8 C.F.R. § 103.3(a)(l )(iii)(B) (stating that a beneficiary is not an "affected party" with legal standing in a proceeding). However. certain ·'portability-eligible'' At any time before a beneficiary obtains lawful permanent residence USCIS may revoke a petition's approval for "good and sufficient cause.'' Section 205 of the Act. 8 U.S.C. s1155. A petition's erroneous approval may in and of itself justify its revocation. Maller ofHo. 19 I&N Dec. 582. 589 (BIA 1988).
Matter ofL-S-A-P-. P.C. beneficiaries of revoked 1-140 visa petitions are treated as affected parties in revocation proceedings. Section 204(j) of the Act, 8 U.S.C. § 1154(j). See Matter ofV-S-G- Jnc., Adopted Decision 2017-06 (AAO Nov. II, 2017). Under the portability provision of section 204(j) of the Act approved petitions may remain valid under certain conditions even aller eligible beneficiaries change jobs or employers. A beneficiary of a valid visa petition, whose application for adjustment of status remains pending for at least 180 days, may "port" the petition to a new job if that job is in the same or similar occupational classification as the position ofTered in the petition. Thus. even though the petitioner for the visa classification and its beneficiary are no longer in an employment relationship. the underlying petition may remain valid for purposes of the beneficiary's adjustment of status application.
In Matter of V-S-G- Jnc.. we held that "lb]eneficiaries of valid employment-based immigrant visa petitions who are eligible to change jobs or employers and who have properly requested to do so [under section 204(j)], are 'affected parties' under DHS regulations for purposes of revocation proceedings. . . . ·· Matter o f V-S-G- Jnc., Adopted Decision 2017-06 at *I. Here, the Beneficiary asserts his eligibility for portability, but, because the revocation decision predated Matter o f V-S-G- Jnc., the Director did not determine whether the Beneficiary had properly p011ed and thus should be treated as an atTected party in the revocation proceedings.
We will therefore withdraw the Director's decision and remand this matter. On remand. the Director should determine whether the Beneficiary properly ported under section 204(j) of the Act. This determination involves considering whether the Beneficiary's adjustment of status application had been pending for at least 180 days at the time of the request to port See 8 C.F.R. § 245.25(a)(2). It also involves considering whether USCIS received sufficient notice of the Beneficiary's new job and whether the job is in "the same or similar occupational classification·· as the position offered in the petition. Jd.; see also USCIS Policy Memorandum PM-602-0152, Guidance on Notice to. and Standingfor. AC2I Beneficiaries ahout J-1-10 Approvals Being RevokedAfier Matter ofV-S-G- Inc. (Nov. 11, 20 17), http://'.'.ww. uscis.gov/laws/policy-memoranda.
If the Beneficiary is found to have properly ported, the Director will issue a new notice of intent to revoke (NOIR) to the Petitioner and the Beneficiary. If the Beneficiary did not properly port, the Director should issue a new NOIR to the Petitioner only. Upon receipt of a timely responsc(s) to a new NOJR. the Director should review the entire record and enter a new decision.
Conclusion
Based on the foregoing, we remand this matter to the Director to determine the Beneficiary's eligibility to participate in revocation proceedings as an affected party.
Matter ofL-S-A-P-, PC
ORDER: The decision of the Director is withdrawn, The matter is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision, which, if adverse, shall be certified to us for review, Cite as Matter of'L-S-A-P-, P.C.. ID# 81869 (AAO Feb, 2, 2018)