dismissed EB-1C Case: Human Hair Products

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB 16, 2024 In Re: 29948283 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a company engaged in the import, marketing , and distribution of human hair products, 
seeks to permanently employ the Beneficiary as its general manager under the first preference 
immigrant classification for multinational executives of managers . See Immigration and Nationality 
Act (the Act), section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. 
employer to permanently transfer a qualified foreign employee to the United States to work in an 
executive or managerial capacity. 
The Director of the Texas Service Center revoked the approval of the petition after issuing and 
receiving no response to a notice of intent to revoke (NOIR). The Petitioner subsequently filed a 
motion to reopen, alleging that it did not receive the NOIR. The Director dismissed the motion, and 
the matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 205 of the Act, 8 U.S.C. § 1155, states: "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. Such revocation shall be effective as of the date of approval of any such petition." 
Under 8 C.F.R. § 205.2(a), any USCIS officer authorized to approve an immigrant petition under section 
204 of the Act may revoke the approval of that petition upon notice to the petitioner when the necessity 
of the revocation comes to the attention ofUSCIS . The petitioner must be given notice and opportunity 
to offer evidence in support of the petition and in opposition to the grounds alleged for approval. 8 C.F.R. 
§ 205.2(b). 
A notice of intent to revoke an immigrant visa petition "is properly issued for 'good and sufficient cause' 
where the evidence ofrecord 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" Matter of 
Ho, 19 I&N Dec. 582, 590 (BIA 1988) (quoting Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). 
Notwithstanding the USCIS burden to show "good and sufficient cause" in proceedings to revoke the 
approval of a visa petition, a petitioner bears the ultimate burden of establishing eligibility for the 
benefit sought. A petitioner's burden is not discharged until the immigrant visa is issued. Tongatapu 
Woodcraft ofHaw., Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
II. ANALYSIS 
The issue in this matter is whether the Director properly revoked the approval of the petition. The 
Director revoked the approval on notice after finding the Petitioner and Beneficiary ineligible for the 
requested classification on multiple grounds, and further entered a finding of fraud or willful 
misrepresentation of a material fact. In the notice of revocation, the Director emphasized that USCIS 
did not receive a response to the NOIR issued on August 31, 2019. 
In its subsequent motion to reopen, the Petitioner contested the revocation based on a claim that it did 
not receive the NOIR at its mailing address of record. The Petitioner clarified that its mailing address 
was not the company's physical address, but rather the mailing address of B-P-, who it identified as 
the "hired paralegal" who prepared and filed the petition on its behalf The Petitioner confirmed its 
mailing address had not changed in the period between the approval of the petition in January 201 7 
and the issuance of the NOIR. 
On motion, the Petitioner submitted a letter from the USCIS Texas Service Center indicating the 
Beneficiary had made an inquiry about the "non-delivery of denial notice" on September 1 7, 2019. It 
also provided an affidavit from the Beneficiary, who stated that B-P- informed him that he did not 
receive the NOIR and that he had also made an inquiry with USCIS. The Petitioner did not submit 
evidence of its relationship with B-P-, whose name does not appear on the petition or any of the 
supporting documents, nor did it submit any statement from this individual corroborating the 
information in the Beneficiary's affidavit. Further, the Petitioner did not contest the grounds for 
revocation of the approval, or otherwise claim that the Director did not have good and sufficient cause 
to issue the NOIR based on the information detailed in the notice of revocation. Rather, the Petitioner 
sought to have the matter reopened so the NOIR could be reissued. 
In dismissing the motion to reopen, the Director acknowledged the Beneficiary's affidavit, but noted 
that "there is no documentary evidence to establish that the petitioner did not receive USCIS' NOIR 
and that [the hired paralegal] represented [the Petitioner]." The Director also emphasized that the 
Petitioner provided "no relevant documentary evidence to overcome the basis of the revocation, as 
listed in USCIS Notice of Revocation." 
On appeal, the Petitioner asserts that the Director erroneously dismissed the motion to reopen and 
incorrectly observed that the motion relied on "the unsupported assertions of counsel." 1 Specifically, 
1 The Director's decision includes a statement that ·The unsupported statements of counsel on appeal or in a motion are 
not evidence and thus are not entitled to any evidentiary weight. INS v. Phinpathya, 464 U.S. 183, 188-89, n. 6 (1984). 
However, the decision reflects that the Director acknowledged and considered the Petitioner's submission of evidence in 
support of counsel's briet: including the Beneficiary's affidavit and evidence of his inquiry to USCTS regarding the mailing 
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it claims it provided sufficient new facts to establish that it never received the NOIR and therefore had 
no opportunity to rebut the derogatory information and findings that formed the basis of the revocation. 
Moreover, the Petitioner maintains that, under 8 e.F.R. § 103.8(c), "the only legally allowed method 
of service [for the NOIR] was personal service." The Petitioner emphasizes that "personal service 
was never performed or attempted by a competent party thereby rendering any subsequent users 
action legally null." For these reasons, the Petitioner asserts that it provided showed proper cause for 
the reopening of the matter and reissuance of the NOIR. 
In general, the Director's decision to revoke the approval of a petition will be affirmed if the petitioner 
fails to offer a timely explanation or rebuttal to a properly issued notice of intent to revoke, 
notwithstanding the submission of evidence on appeal. Matter ofArias, 19 I&N Dec. 568, 569 (BIA 
1988). 
Therefore, we must determine whether the NOIR was properly issued. As noted, the Petitioner does 
not contest the grounds ofrevocation or claim that the Director did not have sufficient cause for issuing 
a NOIR in this matter. Rather, the Petitioner solely alleges procedural defects in the service of the 
NOIR, contending that it never received the notice, that it was not properly served, and that it therefore 
was not given an opportunity to rebut the Director's bases for revocation. 
We will first address the Petitioner's contention that service of the NOIR by mail was impermissible 
based on the circumstances of this case. The Petitioner asserts that the regulation at 8 e.F.R. 
§ 103.8(c)(l) required personal service of the NOIR and revocation decision. 
8 e.F.R. § 103.8(c)(l) provides that in any proceeding which is initiated by users, with proposed 
adverse effect, service of the initiating notice and of notice of any decision by a users officer shall 
be accomplished by personal service, except as provided in section 239 of the Act. However, the 
Petitioner does not offer any additional support for its claim that users must provide personal service 
in all revocation proceedings involving employment-based petitions. 
For example, the regulations applicable to the revocation of H and L-1 nonimmigrant pet1t10ns 
expressly state "[ t ]he director shall send to the petitioner a notice of intent to revoke the petition" if he 
or she determines that one or more of the enumerated grounds for revocation applies. See 8 e.F.R. 
§§ 214.2(h)(l l)(iii)(A) and 214.2(1)(9)(iii)(A) (emphasis added). While personal service may include 
mailing a notice by registered or certified mail, 2 the regulations' use of the more general "send" 
indicates that routine service is sufficient for issuance of the NOIR in nonimmigrant revocation 
proceedings which also carry a "proposed adverse effect" on a petitioner. By contrast, if users 
initiates a proceeding to rescind a person's lawful permanent resident status, the applicable regulations 
expressly state the proceeding "shall be commenced by the personal service upon such person of a 
notice of intent to rescind." 8 e.F.R. § 246.1. 
The regulations applicable to revocation on notice in immigrant petition proceedings do not specify 
whether personal service or routine service is required under 8 e.F.R. § 205.2(b) or ( c ). However, we 
of the NOIR. Therefore, we conclude that the Director's citation to INS v. Phinpathya was harmless error and did not form 
the basis for the dismissal of the motion to reopen. 
2 See 8 C.F.R. § 103.8(a)(2)(iv). 
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note that the regulations pertaining to automatic revocation of an immigrant petition approval specify 
that notice of revocation is "to be mailed to the petitioner's last known address." See 8 C.F.R. 
§ 205.l(b). Further, the USCIS Policy Manual, which is to be followed by all users officers in their 
performance of their duties, provides specific guidance for users to serve a NOrR or notice of intent 
to terminate by ordinary mail. See generally, l USCIS Policy Manual l.E(l0)(D), 
https://www.uscis.gov/policy-manual/volume-l-part-e-chapter-10 ( discussing the revocation, 
recission, or termination of an immigration benefit). 
Under 8 C.F.R. § 108.3(a)(l)(i), routine service consists of mailing the notice by ordinary mail 
addressed to the affected party and his or her attorney or representative of record at his or her last 
known address. Here, the Petitioner's last known address at the time the NOrR was issued was the 
mailing address provided on the Form r-140. The Petitioner has confirmed that this address was valid 
as of August 2019 when the Director issued the NOrR. users records show that the notice was mailed 
on the date of its issuance and that it was not returned as undeliverable. Therefore, the Petitioner's 
claim that the NOrR was improperly served is not persuasive. 
On appeal, the Petitioner argues that even if routine service by mail was permissible, it was not 
accomplished because it did not receive the NOrR at its mailing address. While we acknowledge that 
the Beneficiary, on behalf of the Petitioner, reported the non-delivery of the notice to users, the 
record does not establish that the Petitioner had any direct knowledge of whether the NOrR was 
delivered. As discussed, the Petitioner asserts it relied on the services of B-P-, who was neither an 
attorney nor an accredited representative, and it opted to use his mailing address as the company's 
mailing address for receipt of users receipts and notices. As noted by the Director, the record 
contains no evidence, beyond the Beneficiary's affidavit, corroborating the Petitioner's relationship 
with B-P-. The Beneficiary's unsupported statement that this unaccredited representative, whose 
name does not appear on any documents in the record, informed him that he did not receive the notice 
and that he submitted his own "formal users service inquiry," is insufficient to demonstrate a 
procedural defect or error in the service of the NOrR. 
The Petitioner also claims on appeal that users erred by not recognizing the Beneficiary, its general 
manager, as an affected party authorized to receive information about the case when he communicated 
with users regarding the alleged non-delivery of the notice. Notwithstanding his job title, the 
Beneficiary did not sign the petition on behalf of the company as its authorized representative, and in 
general, a beneficiary of a petition is not a recognized party in a petition proceeding. See 8 C.F.R. 
§ 103.2(a)(3). Further, even if the Petitioner submitted evidence to demonstrate that B-P- had also 
made a users service inquiry, this individual is not an authorized representative for this matter and 
was not entitled to the release of any information regarding the case. 
We also acknowledge the Petitioner's claim that it had been led to believe B-P- was working under 
the supervision of an accredited attorney. Again, the Petitioner has not provided any evidence of its 
relationship or interactions with B-P- in support of its claims. There is no remedy available for a 
petitioner who assumes the risk of authorizing an unlicensed attorney or unaccredited representative 
to undertake representations on its behalf See 8 C.F.R. § 292.1; see also Hernandez v. Mukasey, 524 
F.3d 1014 (9th Cir. 2008) ("non-attorney immigration consultants simply lack the expertise and legal 
and professional duties to their clients that are the necessary preconditions for ineffective assistance 
of counsel claims"). 
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Finally, we conclude that the NOIR contained relevant facts, that, ifunrebutted, support the Director's 
determination that there was "good and sufficient cause" to initiate the revocation of the approval. 
The Petitioner has not contested the grounds for revocation on motion or on appeal. Regardless, in 
general, the Director's decision to revoke the approval of a petition will be affirmed if a petitioner fails 
to offer a timely explanation or rebuttal to a properly issued notice of intent to revoke, notwithstanding 
the submission of evidence on appeal. Arias, 19 I&N Dec. at 570. 
For the reasons discussed, the Petitioner has not shown that the Director erred by providing routine 
service of the NOIR or that USCIS improperly withheld information about the case. Further, the 
Petitioner has not contested the grounds for revocation, provided evidence that it submitted a timely 
response to the NOIR, or established that the Director erroneously dismissed its motion to reopen. 
Accordingly, we will affirm the Director's decision to revoke the approval of the petition. The appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
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