The Petitioner seeks to employ the Beneficiary as a software engineer under the second-preference, immigrant classification for members of the professions with advanced degrees or their equivalents. Immigration and Nationality Act (the Act) section 203(b)(2)(A), 8 U.S.C. § 1l 53(b)(2)(A).
The Director found that the Petitioner did not establish that the Beneficiary possessed the required education and experience for the offered position, and that the job offer was bonafide. The Director further concluded that the Petitioner and the Beneficiary willfully misrepresented material facts concerning the Beneficiary's qualifying education and employment experience. The Beneficiary submitted a subsequent motion to reopen and reconsider the matter, which was rejected as improperly The matter is now before us on the Beneficiary's appeal.
In these proceedings, it is the Appellant's burden to establish eligibility for the requested benefit by a preponderance ofthe evidence. Section 291 ofthe Act, 8U.S.C. § 1361 ;MatterofChawathe,25 I&N Dec. 369, 375 (AAO 2010). The Administrative Appeals Office (AAO) reviews the questions in this At any time before a beneficiary obtains lawful permanent residence, however, U.S. Citizenship and Immigration Services (USCIS) may revoke a petition's approval for "good and sufficient cause." Section 205 ofthe Act, 8 U.S.C. § 1155. If supported by the record, a petition's erroneous approval may justify its revocation. Mattera/Ho , 19 I&NDec. 582, 590 (BIA 1988).
Beneficiaries generally cannot file appeals or motions in visa petition proceedings. See 8 C.F.R. § 103.3(a)(l )(iii)(B) (excludingabeneficiaryofavisapetitionasan"affectedparty"). U.S.CitizenshipandImmigrationServices(USCIS), however, treats beneficiaries as affectedparties if they are eligible to "port" under section 204(j) of the Act, 8 U.S.C. § ll54(j),andproperlyrequesttodoso. SeeMatterofV-S-G-Inc.,AdoptedDecision2017-06,*14(AAONov.11,2017). "A beneficiary's request to port is 'proper' when USCIS has evaluated the request and determined that the beneficiary is indeedeligibletoportpriortotheissuanceofaNOIR[noticeofintenttorevoke]orNOR[noticeofrevocation]." USCIS P o l i c y M e m o r a n d u m P M 6 0 2 - 0 1 5 2 , G u i d a n c e o n N o t i c e t o , a n d S t a n d i n g / o r , A C 2 1 B e n ef i c i a r i e s a b o u t l - l 4 0 A p p r o v a l s BeingRevokedAfterMatterofV-S-G-Inc.5(Nov. 11,2017),https://www.uscis.gov/legal-resources/policy-memoranda. Thus, a beneficiary becomes an "affected party" with lega1standing in a revocation proceeding when USCIS makes a favorable determination that the beneficiary is eligible to port. Id.
After initially approving the petition, the Director ofthe Texas Service Center revoked the approval. filed. untimely.
The Director dismissed a subsequent motion to reopen and reconsider filed by the Beneficiary as p. 2 matter de nova. See Matter ofChristo 's Inc., 26 r&N Dec. 537,537 n.2 (AAO 2015). Upon de nova review, we will dismiss the appeal. As an initial matter, we note that our review on appeal is generally limited to the basis for the underlying adverse decision. Thus, we consider whether the Director properly dismissed the Beneficiary's motion to reopen and reconsider as untimely.
Any motion must be filed within 30 days of the unfavorable decision (or 33 days if the decision is mailed).Id.;8e.F.R.§103.8(b). usersmayexcusefailuretotimelyfileamotiontoreopenifthe applicant demonstrates that the delay was reasonable and was beyond his or her control. 8 e.F.R. § 103 .5(a)(l)(i). However, the regulations do not provide a corresponding discretion to excuse an untimely motion to reconsider.
Because of the eovrD-19 pandemic, users may consider a Form r-290B, Notice of Appeal or Motion, filed within 63 calendar days of an unfavorable decision issued between March 1, 2020, and The record reflects that subsequent to the approval of the petition, the Acting Director of the Texas ServiceeenternotifiedthePetitionerofherintentto revokethepetition'sapproval. Afterconsidering the Petitioner's response to the notice, the Director revoked the petition's approval.
The Beneficiary submitted a motion to reopen and reconsider the Director's decision on November 6, 2020. usersrecordsindicatethatthefilingwasrejectedonDecember16,2020,asthe"check/money More than 150 days from the date o f the Director's notice ofrevocation, the Beneficiary filed a motion to reopen and reconsider the Director's decision on February 5, 2021. Although this motion was filed within 50 days of the rejected r-290B, the Director dismissed the Beneficiary's motions as untimely, noting that the record did not include evidence that the first Form r-290B was improperly rejected. A rejected benefit request does not retain a filing date. 8 e .F.R. § 103 .2(a)(7)(iii). Also, the Director noted that the second Form r-290B was not timely and filed within 63 days of the underlying unfavorable decision, the original revocation.
On appeal, the Beneficiary again does not allege u s e r s error or provide evidence that the first Form r-290B was improperly rejected. The Beneficiary does not provide a copy of the filing fee check or money order to establish that it was properly dated or assert that users otherwise erred in rejecting the filing. A rejected benefit request does not retain a filing date. 8 e.F.R. § 103 .2(a)(7)(iii). Thus, the Beneficiary's initial Form r-290B, which users received on November 6, 2020, and ultimately rejected cannot be considered filed on that date. Rather, the Form r-290B filing date is February 5, 2021, when u s e r s received the re-submitted motion and accepted it for processing. Because that date is outside the 33-day period mandated by the regulations (and outside the 63-day period allowed by the users eOVID-19 response), we agree with the Director's detennination that the motion was untimelyfiled. Furthermore,astheBeneficiarydidnotprovideanexplanationforthedelayinfiling October 31, 2021. order date either has expired or it is in the future ."
See https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-l. Seegenerally 8 C.F.R. § 106.1;see also https://www.uscis.gov/forrns/filing-fees. p. 3 the motion, he also did not establish that the delay was reasonable and that the late filing should be excused as a matter of discretion. Consequently, we will dismiss the appeal.
ORDER: The appeal is dismissed.
Even if we considered the previous motions to have been properly and timely filed, which we do not, we would dismiss theappealonthemerits. Asstatedonthelaborcertification,theofferedpositionofsoftwareengineerrequires60months of post-baccalaureate experience in thejob offeredjob, or in a "mid to senior IT profession." However, as noted in the NOTR, several inconsistencies in the record cast doubt on the Beneficiary's claimed qualifying experience.Inconsistencies in the record These inconsistencies remain unresolved ona ppeal.
ThePetitionerassertsthattheBeneficiaryearnedhisbachelorofengineeringdegreeinJanuary1998. Therefore,the Beneficiary's qualifying post-baccalaureate experiencemustbe calculated between January 1998 and November 2, 2005, the date the labor certification was filed. See 8 C.F.R. § 204.5(d). The record includes letters from the Beneficiary's previousemploye~-----------~·statingthattheBeneficia1ywasemployedfromJuly 1997,firstas a programmer until December 16, 1999, and then as a senior programmer, until September 4, 2000 (the dates the letters weresigned). However,neitherletterdocumentstheBeneficiary'sjobdutiesintheseroles,orthathisemploymentasa programmerwas in the job offered or in the alternate occupationofa "mid to seniorTTprofession."
On the labor ce1iification, the Petitioner asse1is that the Beneficiary also gained qualifying experience working full-time with from November 6, 2000 to August 31, 2005. The record includesthe Beneficiary's 2004 Internal Revenue Service Form W-2, Wage and Tax Statement, demonstrating that paid the Beneficiary total wages of$21,888 in 2004.ThisamountcastsdoubtonthePetitioner'sclaimthattheBeneficiary'squalifyingemploymentwithi I wasfull-timeforeachclaimedyear. Unresolvedmaterialinconsistenciesmayleadustoreevaluatethereliabilityand sufficiency ofotherevidence submittedin suppo1iofthepetition. Matter ofHo, 19 I&NDec. 582, 591-92(BIA 1988).
Based on the record before us, the Petitionerhas not demonstrated that the Beneficiarygainedthe required 60 months of post-baccalaureate experience before the date the laborceiiification was filed, November 2, 2005. Therefore, the Petitioner hasnotestablishedthattheBeneficiary meets the minimum requirements for the offered position as described on the labor certification and the appeal would be dismissed on this basis.