Immigrant Petition for Alien Worker as a Member of th~ Ptofessio!ls l:lblding art Advanced Degree or an Alien of Ex.ceptional Ability P(Itsuant to Section 203(b )(2) of the Immigration ai)Q Na_tionality Act, 8 U.S~C. § 1153(b )(2) · ··
ON BEHALF OP. PETITIONER: lNSTRlJCfiONS :
This is a non-precedent decision. The AAO does not announc .e new constructions of l(!.w nor esta.l:>lish agency policy through non-precedent decisions. If you believe the AAO i_ncorrectly applied current law or policy to you.f case or if yo() seek to present new facts for consideration, you may ·file a motion to reconsider or a m:otion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1~29013) within 33 days of the date of this decision. Please review tJ.e .Form I .. 290B instructions at http:Uwww.usds.gov/fonns for the latest in_fQrmation on fee, tiling location, and other requirements. See ti_lso 8 C,F.R. § 103.5. Do not tile a motion directly with the AAO.
Than~ you,
/t-/(~~
Ron Rosenberg
Chief , Ad.rn:inistratjve Appeals Office
NON-PRECEDENT DECISION
DISCUSSION: The Director, Nebraska Service Center, (director) revoked the approvaf of the employment-based immigrant visa petition. The petitioner appealed the decision to the Administnttive Appeals Office ·(AAO). The appeal was rejected by the AAO as UJltimely filed. The AAO subsequently reopeneq the ca.se pursuant to 8 C.P.R. § 103.5(a)(5)(ii) for purposes of entering a new decisiort.1 The director's decision to revoke the petition will be withdrawn, and the matter will be remanded for further consideration.
The petitioner describes itself as a software development and project management business. 'It seeks to permanently employ the beneficiary in the United States as a senior-software engineer. The petili.on¢r. requests classification of the beneficiary as an advanced degree professional pursuant to sectiori;203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). ' N.i reqt~ireq by statute, the petition is accompanied by an ETA Foi'Iil 9089, Applic(ltion for Perman~nt Employment Cenification (labor ceitification), approved by the U.S. Department of Labor (bOL). 2
Tbe ·petition W(lS gpproved, l:mt subsequently revoked on September 14, 2012, by the Director, Nebraska Service Center, because the qir.ector determined that the petitioner had Iiot established that a bona fide job offer existed. The director stated th(lt t_njs conclusion was based on inconsistencies in the record; speCifically, the director found that the petitioner had failed to <:tdeql,l<J,tely explain why tl:t¢ work address listed on the labor certification did not match the address where the benefici<:lry had actuall{been e.rnployeq by the petitioner.Inconsistencies in the record The appeal was rejected by the Administrative Appeals Office (MO) oil March 19, 2013, because the appeal was untimely filed.
On June 28, 2013, the AAO notified the petitioner that the AAO was reopening tbe c_ase. The AAO agal11 cited the variance between the work address ort the labor certification and the ad<lre.ss where th.e benefi¢iary )J(ld been working for the petitioner. The AAO noted the explanation of the · discrepan~y that was offereq by co\l11sel on appeal, but stated that ''nowhere on .the-ETA Fotrn 9089 does it state that the benefiCiary will be employed in multiple locations." the AAO afforded the petitioner an: opportun.ity to present additional evid~ence to establish "that the DOLand U.S. workers were apprised ofthe fact that the offered employment was to take place at multiple locations." 1 Tbe regttlation at 8 C.P.R.§ 103.5(a)(5)(ii) states: -, .
Service motion with decision that may be unfavorable to affected party. When a Service offiCer, on his or her own motion, reopens a Service proceeding or reconsiders a ·Service decision, and the new decision may be Oilfavotable to the affected party; the officer shall give the affected party 30 'days after service of the motion to submit a brief. The officer may extend the time period for good cause shown; If the affected party does not wish to submit a btief, the affected party may waive . tbe 30,.day period.
NON-PReCEDENT DECISION
The petitioner responded to this request by submitting copies of advertisements it had placed during the recruitment process in the newspaper, wit.h the Indiana Department of Workforce Development, and on the Careerbuildet.com website. These advertisements all pote th.C!.t the position requires ''traveling to various job-sites." Counsel also pointed out that despite the director's and the AAO's assertions that "nowhere on the ETA Form 9089 does it state that the beneficiary will be employed in multiple locations," th~ labor certific~tion does, in fact, state at Line H.ll that the position requires "traveling to various job sites." ' The petitioner's explanation is supported by significant contemporaneous evidence. Upon review of the entire record, including evidence submitted on appeal and in response to the NORJNOID, the AAO concludes that the petitioner has established that it is more likely than not that a bona fide job offer exists betw~en the petitioner and the beneficiary.
However; the record contains other discrepancies that were not detailed in the director's decision. The AAO conducts appellate review on a de novo basis. The AAO's de novo authoritY is well recognized by the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004).
Speeificall y, the record reveals that the number of employees listed in employment records submitted by the petitioner and claimed on the petition itself were at variance With information obtained (rom the United States Citizen and Immigration Services (USClS) Validation Instrument for Business EnterpriSes (VIBE) system. The petitioner has supmitted extensive tax payroll records pertaining 'to its employees during the yearS in question. Counsel for the petitioner asserts that USCIS has, in the past, confused it with ~other company and had "quoted the wrong FEIN for this petitioner." Cou:nsdfor the petitioner also provides the petitioner's Dun & Bradstreet number and claims that it was not registered until 2007 when the instant petition was filed. The assertions of counsel do not constitute eyidep~.-· Matter of Obaigbend, 19 l&N Dec. 533, 534 (BlA 1988); Matter of Rarnirez-Sanchez, 17 I&N Dec; 503, 506 (BIA 1980).Claims not backed by documents No evidence to demonstrate the petitioner's correct Dun & Bradstreet nwnber or registration date was su,l:mtittecl. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any (!.ttempt to ex.plain or reconcile such inconsistenCies Will not suffice un'less the petitioner submits competent objective evidence pointing to wbe_re the tnJ.th lies. Matter of Ho, 19 I&N Dec. 582, 591-9:2{81Al988).
111 view of the foregoing, the previous decision of the director will be withdrawn. The petition is remanded to the director for consideration of the issue stated above. The director may request any additional evidence considered pertinent. Similarly, the petitioner may provide additional evidence within a reasonable period of time to be determined by the director~ Upon receipt of all the evidence, the director will review the entire record and enter a· new decision.
ORDER: The director's decision is withdrawn; however, the petition is currently unapprovable for the reason discussed above, and therefore the AAO may not approve the petition at this time. Because the petition is not approvable, the petition is remanded to the director for issuance of a new, detailed decision.