Non-Precedent Decision of the Administrative Appeals Office DATE: FEB. 2, 2018
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 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.
Malter ofL-S-A-P-, P.C.
Section 204(j) of the Act, 8 U.S.C. § 1154(j ). See Matter ofV-S-G- Inc., 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 after 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 offered 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- Inc., we held that "'[b]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 of V-S-G- Inc., 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 ported 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 USC IS received sut1icient 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. !d.; see also USCIS Policy Memorandum PM-602-0152, Guidance on Notice to. and Standing.fhr. AC21 Beneficiaries ahout l-1-10 Approvals Being Revoked Afier lvfatter of' V-S-G- Inc. (Nov. 11, 20 17), http://www.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 NOIR, 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.
Maller ofL-S-A-P-, P.C.
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. If the Beneficiary is deemed to be an affected party. and the new decision is adverse. the new decision shall be certified to us for review.
Cite as Malter o{L-S-A-P-. P.C.. 10# 81446 (AAO Feb. 2. 2018)