The Petitioner, an acupuncture clinic, sought to employ the Beneficiary as an acupuncturist. It requested classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant category. Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § l 153(b)(2). This employment-based "EB-2" immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
After initially approving the petition, the Director of the Nebraska Service Center revoked the The matter is now before us on the Beneficiary's appeal. Although normally not the case, under certain circumstances described below a beneficiary may be considered to be an affected 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 consistent with the following decision.
Whether the Beneficiary Is an Affected Party
U.S. Citizenship and Immigration Services (USCIS) regulations do not generally allow a beneficiary to appeal apetition's revocation. See 8 C.F.R. § 103.3(a)(i )(iii)(B) (stating that a beneficiary is npt an "affected party" with legal standing in a proceeding). However,· certain "portability-eligible" beneficiaries ofrevoked 1-140 visa petitions are .treated as affected parties in revocation proceedings. approval. employer/Petitioner's original signature, as required by applicable regulations, and concluded that neither document Was properly filed. The Director invalidated the labor- certification on the ground that the employer's signature was falsified, and revoked the approval of the petition on the same ground and because it was not accompanied by a valid labor certification. The Beneficiary filed a motion to reopen and reconsider, which the Director denied.
The Director found that neither the labor certification nor the petition contained the At any time before a beneficiary obtains lawful permanent residence U.S. Citizenship and Immigration Services may revoke a petition's approval for "good and sufficient cause." Section 405 of the Act, 8 U.S.C. § 1155. A petition's erroneous approval may in and o f itself justify its revocation. Matter o f Ho,\ 19 I&N Dec. -582, 589 (BIA 1988).
.Matter ofM-A-C~ Inc.
Section 204(i) o f the Act; 8 U.S.1⁄2. § 11540). See Matier o f V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov; 11, 2017). Uncler the portability -provision of section 2040) 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, ·rnay "port" the petition to a riew 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 long_er 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 eJ]lployment-based immigrant visa petitions who are eligible to change jobs or employers and who have properly requested to do so [under section 204(i)], are 'affected parties' under DHS regulations for purposes of revocation proceedings. . . . " Matter o f V-S-G- Inc., Adopted Decision 2017-06 at *1. In this case, the Beneficiary notified USCIS of a new job offer and intent to port more than a yeat before the date of the Director's notice of intentto revoke (NOIR). At the time of the revocation, which postdated ~he decision in Matter o f V-S-G- Inc., the Director· did not, contrary to USCIS guidance, address the Beneficiary's prior request to change employer in order to .determine whether the Beneficiary properly ported and· could therefore be considered an affected· party in the revocation proceedings. See USCIS Policy Memorandum PM-602-0152, Guidanc·e on Notice to, and Standing for, AC21
- Beneficiaries about 1-140 Approvals Being Revoked A.fie,; Matter of V-S-G- Inc. (Nov. 11, 2017), http://www.uscis.gov/laws/policy-memoranda. While it appears from the record that the Beneficiary requested to port in a timely manner, it is not clear that the·request was favorably adjudicated by the Director so that the Beneficiary could be considered an "affected Party" as in M«tter o f V-S-G-. 2 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 2040) 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. Id.; see also USCIS Policy Memorandum PM-602-0152, supra.
· If the Beneficiary is found on reinand to have properly ported, the Director will issue a new NOIR to the Petitioner and the Beneficiary. If the Benefic_iary did not properly port, the Director should issue a new NOIR to the Petitioner only. Upon receipt of a timely response, or of timely responses, to a new NOIR the Direc·tor should review the entire record and enter a new decision.
W-e note that the Director's decision on t~e m~tion tp reopen and reconsider was addressed to the Beneficiary, but stated in the body ofthe decision, incorrectly, that it had been filed bythe Petitioner.
Conclusion
In accordance with the above analysis, we remand this matter to the Director to determine the Ben_eficiary's eligibility to participate in revocation proceedings as an affected party.
Matter ofM-A-C- Inc.
ORDER:
The decision of the Director is withdrawn. The matter is remanded for further proceedings consistent with the foregoing analysis and for th~ 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 Matter ofM-A-C- lnc., ID# 2032008 (AAO Feb. 13, 2019) I
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