Non-Precedent Decision of the Administrative Appeals Office DATE: JAN.22,2018
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER The Petitioner, a software developer and consultant sought to employ the Beneficiary as a computer software engineer. It requested his classification as 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), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows an employer to sponsor a foreign national with an advanced degree for lawful pennanent resident status.
After first granting the filing, the Director of the Nebraska Service Center rcvoked the petition's approval. The Director concluded that as of the approval, the record did not establish. as required. that the Petitioner has the ability to pay the protTered wage. We subsequently dismissed the Petitioner's appeal, upholding the Director's determination and also finding that the Petitioner had not established that the Beneficiary has the minimum education and experience required on the labor certification, and that the otTer of employment is bonafide.
The matter is now before us on the Beneficiary's motion to reopen and reconsider. 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 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" beneficiaries of revoked 1-140 visa petitions are treated as atTected parties in revocation proceedings.
At any time before a beneficiary obtains lawful permanent residence USC IS may revoke a petition's approval for ""good and sufficient cause.'' Section 205 of the Act, 8 U.S.C. § 1155. A petition's erroneous approval may in and of itself justify its revocation. Matter ofHo, 19 I&N Dec. 582, 589 (BIA 1988).
Matter o(T-S-. Inc.
Section 204(j) of the Act, 8 U.S.C. § 1154(j). See Maller ofV-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 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 ifthat 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* 1. Here, the Beneficiary asserts his eligibility for portability, but, because the revocation decision predated Matter of V-S-G- Jnc., the Director did not determine whether the Beneficiary had properly ported and thus should be treated as an affected 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. !d.: see also USCIS Policy Memorandum PM-602-0152, Guidance on Notice to. and Standing for. AC21 Beneficiaries about 1-l.JO Approvals Being Revoked Afier Malter of'V-S-Ci- Inc. (Nov. 11, 2017), 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 response(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.
MatterofT-S-, Inc
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 Matter ofT-S-, Inc., ID# 78793 (AAO Jan. 22, 2018)