remanded EB-2 NIW Case: Art

PUBLICCOpy
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u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
FILE:
SRC 05 204 51074
Office: TEXAS SERVICE CENTER Date: JAN 31 20Q7
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration
and Nationality Act, 8 U.S.C. § 1153(b)(2)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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 .
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~Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Texas Service Center, denied the employrri~ri~&a~ed immigrant visa petition.
The matter is now before the Administrative Appeals Office (AAO) on ap'p~l,:}be appeal will be rejected. The
AAO will return the matter for further action by the director.'" ..
The alien beneficiary seeks classification pursuant to section 203(b)(2) 'of the' Immigration and Nationality
Act (the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the arts. 'the beneficiary is a painter.
, • oj
The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification,
is in the national interest of the United States. The director found that the petitioner failed to establish that the
beneficiary qualifies for classification as an alien of exceptional ability in the arts, or that an exemption from
the requirement of a job offer would be in the national interest of the United States.
Part 1 of the Form 1-140 petition identifies the alien beneficiary as the petitioner. Review of the petition form,
however, indicates that the alien beneficiary is not the petitioner. An applicant or petitioner must sign his or her
application or petition. 8 C.F.R. § 103.2(a)(2). In this instance, Part 8 of the Form 1-140, "Signature," has been
signed not by the alien beneficiary, but by his attorney, who indicated that she signed on the beneficiary's behalf.
Thus, the attorney, and not the beneficiary, has taken responsibility for the content of the petition. We note that
the record contains Form G-28, Notice of Entry of Appearance as Attorney or Representative, purporting to show
that the attorney represents the beneficiary as counsel in this matter, but on this form, too, the attorney has signed
her own name where the beneficiary's own signature belongs. Therefore, we cannot consider the attorney to be
the beneficiary's counsel of record. We must, however, consider the attorney to be the petitioner.
Pursuant to 8 C.F.R. § 204.5(k)(1), if an alien seeks a national interest waiver, then the alien, or anyone in the
alien's behalf, may be the petitioner. Because "anyone" may file the petition, the finding that the attorney is the
defacto petitioner does not mean that the petition itself was not properly filed.
,
8 C.F.R. § I03.3(a)(1)(iii)(B) states that, for purposes of appeals, certifications, and reopening or reconsideration,
"affected party" (in addition to Citizenship and Immigration Services (CIS» means the person or entity with legal
standing in a proceeding. It does not include the beneficiary of a visa petition. 8 C.F.R. § 103.3(a)(2)(v) states
that an appeal filed by a person or entity not entitled to file it must be rejected as improperly filed. .In such a case,
any filing fee CIS has accepted will not be refunded.
Here, the party that signed the Form 1-290B Notice of Appeal was not the petitioner, nor any attorney or
accredited representative of the petitioner, but rather the petitioner's law partner, . Mr.
S J presents himself as the alien's attorney, not as his partner's attorney, and there is no Form G-28 in the
record to designate him as his partner's attorney. Therefore, Mr. has no standing to file an appeal on
the petitioner's behalf. We must, therefore, reject the appeal as improperly filed. We note, at the same time, that
the director has consistently referred to the alien beneficiary as the petitioner in this proceeding, further
contributing to the confusion as to the true identity of the petitioner (and, therefore, the question of who must file
the appeal).
8 C.F.R. § 103.5a(a)(1) defines "routine service" as mailing a copy by ordinary mail addressed to a person at his
or her last known address. 8 C.F.R. § 103.5a(b) states that service by mail is complete upon mailing. Here,
because the director addressed the notices to the attention of the alien beneficiary (albeit in care of the petitioning
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attorney), rather than to the petitioning attorney herself, the director has arguably never properly served the notice
of deriial, and therefore true petitioner has not had the opportunity to file a timely appeal. The director must
reissue the denial notice in order to give the actual petitioner that opportunity. (If the petitioner chooses once
again to submit a Form I-290B signed by her law partner rather than by herself, the appeal must also contain a
valid Form G-28 executed and s igned by the petitioner and her partner, authorizing her partner to represent her in
this proceeding.)
Because there is, as yet , no valid appeal in the record , we examine, here, neither the basis of the denial nor the
merits of the appeal submitted by the petitioner's law partner. We will duly consider those factors if and when
the petitioner files a proper and timely appeal.
The appeal has not been filed by the petitioner, or by any entity with legal standing in the proceeding, but rather
by" the petitioner's law partner. Therefore, the appeal has not been properly filed, and must be rejected. The
director must serve a newly dated copy of the decision, properly addressed to the petitioner (rather than to a third
party, in care of the petitioner).
ORDER: The appeal is rejected. The matter is returned to the director for the limited purpose of the
reissuance of the decision.