remanded EB-1A Case: Athletics

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Bobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, initially approved the preference visa petition. 
Subsequently, the director issued a notice of intent to revoke the approval of the petition (NOIR). In a 
Notice of Revocation (NOR), the director ultimately revoked the approval of the Immigrant Petition for 
Alien Worker (Form 1-140) without considering the petitioner's response to the NOIR. The director 
subsequently reopened the matter on motion and issued a new NOR that took into account the 
petitioner's response to the NOIR. The matter is now before the Administrative Appeals Office (AAO) 
on appeal. The AAO will withdraw the director's decision; however, because the petition is not 
approvable, it is remanded for further action and consideration. 
The petitioner seeks classification as an "alien of extraordinary ability" in athletics, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. tj 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualify for classification as an alien of extraordinary ability. 
On appeal, counsel does not challenge the merits of the director's decision other than to affirm the 
petitioner's eligibility in general terms. Rather, counsel limits his appellate briefs1 to procedural issues. 
For the reasons discussed below, we do not find any of counsel's procedural assertions persuasive. 
Nevertheless, while not raised by counsel, the director erred in raising issues in the final notice of 
revocation that were not raised in the NOIR. Thus, while we are aware of the delays that have occurred 
in this matter, we must remand the matter to the director for a new NOIR that raises all issues of 
concern. 
Section 205 of the Act, 8 U.S.C. 5 1155, states, in pertinent part, that the Secretary of Homeland 
Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval 
of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
' In addition to the pending appeal, counsel has filed several "motions" and "emergency motions" with this 
office, most of which repeat the same assertions made on appeal, sometimes verbatim. The motions are not 
accompanied by the proper fee for motions to reopen or reconsider pursuant to section 8 C.F.R. 9 103.5. 
Moreover, this office has never issued a decision in this matter previously. Thus, it is not clear what action by 
this office counsel seeks to reopen or reconsider with his motions. As such, we will consider these "motions" as 
supplemental briefs supporting the appeal. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient 
cause for the revocation of the approval of an immigrant petition. Id. The approval of a visa petition 
vests no rights in the benkficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process. Id. at 589. The beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. Id. 
 * 
In order to address the issues raised by counsel on appeal, it is necessary to discuss the procedural 
history of this matter in detail. The petition was filed on September 1 1,2002. The director denied the 
petition on November 3, 2003 with little discussion of the evidence submitted. The director reopened 
and approved the petition on January 29, 2004. On June 4, 2003, the petitioner filed a Form 1-485, 
Application to Register Permanent Residence or Adjust Status. The petitioner subsequently sought a 
Writ of Mandamus to compel action on the Form 1-485. On May 24, 2007, the petitioner was 
interviewed at the Miami District Office. Although the interviewing officer initially stamped the 
application approved, she did not, as will be discussed in more detail below, formally adjust the 
petitioner's status. Rather, she determined that the application was not yet approvable. She returned 
the Form 1-140 petition to the director for review and possible revocation of the approval of that 
petition. 
On July 13, 2007, the director issued a NOIR. The petitioner submitted a response. Despite that 
response, the director issued a final revocation notice on August 17,2007, concluding no response.had 
been submitted. On August 30, 2007, the petitioner filed the initial appeal. In that appeal, counsel 
requested that this office remand the matter to the director for a new decision that takes into account the 
response to the NOIR. Rather than forwarding the matter to this office for a remand order for a new 
decision, the director simply reopened the matter on his own motion and issued the new decision 
ultimately requested, which considered the response to the NOIR. The pending appeal followed. 
Revocation vs. Rescission 
Counsel's first assertion is that the director was precluded from revoking the petition because the 
petitioner had already adjusted status to that of a 1awfi.d permanent resident. Thus, the only way to 
challenge the validity of the petition would be through rescission proceedings pursuant to section 246 
of the Act, 8 U.S.C. fj 1256. 
As stated above, counsel asserts that the petitioner is already a lahl permanent resident based on the 
action of a district adjudications officer at the Miami District Office. Counsel asserts that at the 
petitioner's interview on May 24, 2007, the district adjudications officer stamped the Form 1-485 
approved and signed and dated the stamp. Before the petitioner left, however, the officer made an 
inquiry with another staff member at the office and obliterated her stamp. Counsel does not assert that 
the officer stamped the petitioner's passport or issued the petitioner a Form 1-94 bearing a lawful 
permanent residence designation. In fact, the Form 1-94 remains in the record. The record contains no 
Form 1-1 81, Memorandum of Creation of Record of Lawful Permanent Residence, the generation of 
which is the final step of adjusting status. Citizenship and Immigration Services 1-485 Standard 
Operating Procedures 7-4.7. See also Nelson v. Reno, 204 F. Supp. 2d 1355, 1359 (S.D. Fla. 2002). 
Counsel provides no legal authority for the proposition that the mere placement of an approval stamp, 
with the officer's signature and date, on the Form 1-485 renders the applicant a lawful permanent 
resident at that moment. Significantly, Nelson, 204 F. Supp. 2d at 1360, held that an erroneously 
placed "1-55 1" stamp, which serves as the applicant's record of lawful permanent resident status, is not 
itself an approval of lawful permanent resident status. In that case, the necessary adjustment procedure, 
approval of the Form 1-130, the Form 1-485 and the Form 1-181, had not occurred. In Bassey v. INS, 
2002 WL 31298854 (N.D. Cal. 2002), an approval notice and a passport stamp were both deemed 
insufficient evidence that the alien had adjusted status where the underlying Form 1-130 had not been 
approved. Finally, in Ayoub v. ChertofJ; 2005 WL 1028180 (E.D. Mich. 2005), a passport stamp was 
held not to establish adjustment of status where the Form 1-485 was denied the day after the passport 
was stamped. 
We acknowledge that the district court decisions cited above are not binding and may not have 
involved a situation where the 1-485 was stamped approved, although an approval notice was issued in 
Bassey. Nevertheless, we find their reasoning persuasive and applicable in this matter. We are 
satisfied that the district adjudications officer in Miami did not complete the full processing required to 
formally adjust the petitioner's status. For example, the record lacks evidence that the officer in Miami 
created a Form 1-181. Thus, as the petitioner has not adjusted status to that of a lawful permanent 
resident, the director was authorized to review the Form 1-140 for potential revocation. 
Validity of Second NOR 
Counsel also asserts that the director acted "with malice aforethought" in trying to "usurp" the AAO's 
jurisdiction on a previously filed appeal. As stated above, the director initially revoked the petition on 
August 17, 2007. In this decision, the director stated that the petitioner had failed to respond to the 
NOIR. On August 30,2007, the petitioner filed the initial appeal, requesting that the AAO remand the 
matter back to the director for the purpose of considering the petitioner's response to the NOIR. 
Instead of forwarding the appeal to the AAO, which, if it had granted the relief requested, would have 
remanded the matter back to the director for consideration of the petitioner's response, the director 
reopened the matter on his own motion and issued a new revocation that takes into consideration the 
petitioner's response. We note that this action is the exact relief the petitioner requested this office to 
order via remand. 
We acknowledge that the regulation at 8 C.F.R. 
 103.3(a)(2)(iii) only allows the director the option of 
treating an appeal as a motion for purposes of taking "favorable action." 
 It is a reasonable 
interpretation of the phrase "favorable action" to include granting the relief requested in the appeal, in 
this case the issuance of a new decision considering the response to the NOIR. Even if we interpret 
"favorable" to mean only an approval rather than whatever relief was requested, counsel has still failed 
to demonstrate how the director's new decision, which would have been the eventual outcome had the 
AAO reviewed the appeal and remanded the matter for a new decision taking into account the response 
to the NOIR, prejudiced his client, especially in light of counsel's constant assertions that there have 
already been unreasonable delays in this matter. Forwarding the appeal to this office to await a decision 
ordering the director to issue a new decision would only have delayed this matter further. 
In his "Fifth Motion, Brief and Memorandum of Law," counsel asserts that the petitioner is entitled to 
have the initial appeal "heard by the AAO as it existed before Defendant Officer 1014 fixed it up in 
violation [ofJ due process and 8 C.F.R. 5 103.3." Counsel has not explained what purpose would be 
served in considering the director's August 17, 2007 denial. Clearly, that decision, which erroneously 
found that the petitioner had not responded to the NOIR, was flawed and, if that were the only decision 
before us, would mandate a remand for a new decision considering the NOIR response. The director, 
however, has already issued a new decision that takes into account the NOIR response. Remanding the 
matter for an action the director has already taken appears pointless. We note that one of the cases 
referenced by counsel on appeal, Deering Milliken, Inc. v. Johnston, 295 F. 2d 856 (4~ Cir.), upheld the 
district court's injunction against a remand order by the National Labor Relations Board, finding that a 
remand for proceedings that are "repetitive, purposeless and oppressive" can represent an unreasonable 
delay. As counsel repeatedly asserts that there have already been unreasonable delays in this matter and 
has sought a Writ of Mandamus to compel final action, we cannot see what purpose it would serve to 
act upon the petitioner's first appeal and remand the matter to the director to take action he has already 
taken. 
Finally, counsel has repeatedly asserted that this office cannot consider any evidence submitted in 
response to the director's NOIR because this office does not have de novo review. First, considering 
this evidence would not constitute de novo review because the director did consider this new evidence 
in the October 12,2007 notice of revocation. Regardless, the AAO maintains plenary power to review 
each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal from or review of the initial decision, the 
agency has all the powers which it would have in making the initial decision except as it may limit the 
issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th 
Cir. 1991). The AAO's de novo authority has been long recognized by the federal courts. See, e.g. Dor 
v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 
1002 n. 9 (2d Cir. 1989). 
While we reject counsel's assertions on appeal, another issue mandates that we remand the matter back 
to the director for a new NOIR despite previous delays in this matter. Specifically, the director's NOIR 
raised only the issue of whether or not the petitioner seeks to continue working in his field of expertise. 
The director's October 12, 2007 notice of revocation, however, also concluded that the petitioner had 
not established extraordinary ability as a swimmer, his claimed field of expertise. A revocation can 
only be grounded upon, and the petitioner is only obliged to respond to, the factual allegations in the 


director for issuance of a new, detailed decision which, if adverse to the petitioner, is to 
be certified to the Administrative Appeals Office for review.