dismissed EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 01, 2024 In Re: 30154072 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Professional) 
The Petitioner, a provider of financial consulting services, seeks to employ the Beneficiary as an 
accountant and requests his classification under the third-preference immigrant visa category for 
professionals . See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C. 
§ 1 l 53(b )(3)(A)(ii). 
The Director of the Texas Service Center revoked the approval of the petition with a finding of willful 
misrepresentation of a material fact. The Director dismissed the Petitioner's subsequent motion to 
reopen, concluding the Petitioner did not demonstrate that its untimely filing, submitted more than 15 
months after issuance of the revocation decision, was reasonable and beyond its control. We dismissed 
the Petitioner's appeal of that decision and three subsequent motions to reopen and reconsider. The 
matter is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motions. 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our prior decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant motions that satisfy 
these requirements and demonstrate eligibility for the requested benefit. Our review on motion is 
limited to reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii) . 
IL ANALYSIS 
The issue before us is whether the Petitioner has shown proper cause to reopen the proceeding or to 
reconsider our prior decision. 
The record reflects that U.S. Citizenship and Immigration Services (USCIS) initially approved this 
immigrant petition in November 2007. The Director subsequently revoked the petition's approval on 
November 26, 2018, pursuant to the statutory and regulatory provisions at section 205 of the Act, 8 
U.S.C. § 1155 and 8 C.F.R. § 205.2. In the revocation decision, the Director noted the Petitioner did 
not submit a response to the notice of intent to revoke (NOIR) issued on September 10, 2018. 1 The 
Petitioner filed a motion to reopen on April 10, 2020, emphasizing that it received neither the NOIR 
nor the revocation decision. 2 The Director dismissed the motion after concluding that the record did 
not demonstrate the lengthy delay in filing was reasonable and beyond the Petitioner's control. The 
Petitioner, in its appeal and three prior motions, has contended that USCIS revoked the petition's 
approval without adequate notice and should have excused its untimely filing of the motion to reopen. 
For the sake of brevity, we incorporate our previous analysis of the record and will repeat certain facts 
as necessary to address the current motion. 
In this fourth motion, the Petitioner contests the correctness of our immediate prior decision dated 
August 2, 2023, and of our earlier decisions, noting that in our latest decision we referenced "several 
previously stated assertions, comments, arguments and authorities." The Petitioner presents multiple 
legal arguments alleging an incorrect application of law or USCIS policy, which we discuss in tum 
below. 
A. Notice to Beneficiary pursuant to Matter of V-S-G-
The Petitioner maintains, for the first time, that the Beneficiary was entitled to receive a copy of the 
NOIR and revocation decision in this matter and the Director's failure to provide him with notice 
violated a 201 7 USCIS Policy Memorandum that provided guidance on the implementation of Matter 
of V-S-G-, Adopted Decision 2017-06 (AAO Nov. 11, 2017). 3 According to Matter of V-S-G­
beneficiaries who are otherwise eligible to and have properly requested to port to a new employer 
under the American Competitiveness in the 21st Century Act (AC21), Pub. L. 106-313 (Oct. 17, 2000), 
are affected parties. As a result of this adopted decision, USCIS provides a NOIR and notice of 
revocation ( or both) to a beneficiary who has an approved immigrant petition and an Application to 
Register Permanent Residence or Adjust Status (Form 1-485) that has been pending for 180 days or 
more, and has properly requested to port. 
A porting request is proper when it has been favorably reviewed by USCIS before the issuance of a 
NOIR or revocation decision. 4 Here, the Petitioner does not claim, nor does the record reflect, that the 
Beneficiary made a porting request at any time prior to the issuance of the NOIR or revocation 
1 The record reflects the notice of revocation, which was sent to the Petitioner's mailing address of record. was returned 
by the U.S. Postal Service and received by USCIS on December 19, 2018. The NOIR, sent to the same address, was not 
returned. 
2 The Petitioner stated that it first learned of the revocation decision upon receipt of a notice of intent to deny (NOTD) dated 
March 12, 2020. In that NOTD. which was issued in connection with a Form T-129, Petition for a Nonimmigrant Worker. 
seeking to extend the Beneficiary's H-1 B status, the Director stated "USCTS records show that after you filed the present 
Form T-129, on November 26.2018. USCTS revoked the approval of [the immigrant petition] with findings of fraud." 
3 See generally USCTS Policy Memorandum PM-602-0152, Guidance on Notice to, and Standing for AC2 l Beneficiaries 
about I-140 Approvals Being Revoked After Matter of V-S-G- Inc. (Nov. 11, 2017). 
4 Before January 1 7, 2017. a beneficiary requested to port by submitting a request in writing. Beginning January 1 7, 201 7, 
a beneficiary must request to port by submitting a Form 1-485 Supplement J, Confirmation of Bona Fide Job Offer or 
Request for Job Portability Under INA Section 204(j). 
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decision, either in writing or on Form I-485 Supplement J. Therefore, the Petitioner has not established 
that users policy required the Director to provide the Beneficiary with any notice related to the 
revocation of the Form I-140 approval. 
B. Petitioner's Obligation to Update Mailing Address with users 
On motion, the Petitioner contends that our prior decisions have been inconsistent in stating users 
policy regarding a petitioner's obligation to provide updated mailing addresses. 
The Petitioner states its mailing address changed after this petition was approved in November 2007 
and prior to the issuance of the NOIR in September 2018. The Petitioner does not allege that it 
submitted a change of address to users but has consistently claimed that it was not required to do so 
because "the matter being revoked was not pending at the time [the] NOIR and revocation letters were 
issued." The Petitioner emphasizes that, in our appellate decision dated October 1, 2021, we stated 
that "regulations and users policy required the Petitioner to keep the Agency informed of the 
company's address on each of its pending benefit requests." It asserts that "AAO, by its own assertion 
... has validated petitioner's claim that they had no duty to update the address once the subject I-140 
was no longer pending." The Petitioner maintains that based on this quoted statement, "the Appeal 
and multiple motions submitted in this matter are grantable since the obligation to update the address 
did not rest with the petitioner after the benefit request ceased to be a pending benefit request." 
While we acknowledge the statement quoted above, we observe that, in the same October 2021 
decision, we pointed to various public users webpages that discuss address changes, two of which 
note instances in which an updated address must be submitted even after approval of a benefit request. 
We also addressed the Petitioner's obligation to update its mailing address in our August 18, 2022, 
decision dismissing its first motion, in response to the Petitioner's contention that the referenced 
users guidance on a petitioner's obligation to update its address following approval of an 
employment-based petition is "ambiguous." Therefore, our prior decisions sufficiently clarify that the 
burden to keep mailing addresses updated with users always lies with the petitioner or applicant. 
e. Revocation following Non-Receipt ofNOIR 
The Petitioner, citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987), further asserts that "the 
revocation of a visa petition is proper only after receipt of the properly issued NOIR." The Petitioner 
maintains that it has been established that it did not receive the NOIR, and that users was aware that 
it was not delivered. Accordingly, the Petitioner maintains that the petition's approval was improperly 
revoked. 
We observe that Matter ofEs time does not support the Petitioner's proposition that a notice of intent 
to revoke is only deemed to be properly served when it is received by the affected party. The petitioner 
in that matter received a properly issued notice of intent to revoke and submitted a timely response. 
However, the petitioner's response was not incorporated into the record of proceedings, and therefore 
not reviewed by the former Immigration and Naturalization Service (INS) office prior to the issuance 
of the revocation decision, as required by 8 e.F.R. § 205.2, which resulted in the Board's decision to 
remand the case. The Board did not determine that a decision to revoke approval cannot be sustained 
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where the NOIR was not physically received by the affected party, and therefore does not address the 
circumstances present here. 
The Board in Estime concluded that a decision to revoke approval of a visa petition will not be 
sustained where the notice of intention was not properly issued. 19 I&N Dec. at 452. Here, the record 
reflects that USCIS complied with regulations for proper service of the NOIR and revocation decisions 
by mailing these notices to the Petitioner's last known address. See 8 C.F.R. § 103.8(a)(l). Further, 
the Petitioner has not claimed that the Director lacked good and sufficient cause to issue the NOIR, as 
required by section 205 of the Act or that it was otherwise not properly issued. 
As discussed in our prior decisions, there is no law or policy which places the burden on USCIS to 
locate a new address for a petitioner when a notice that was properly served is returned as 
undeliverable. USCIS acted on the returned mail by updating the online case status system for the 
petition and providing additional guidance on how to obtain a copy of the notice and how to update 
its address. The Petitioner has not shown that law or policy required USCIS to take any additional 
action. Therefore, its claim that a revocation decision cannot stand when a properly issued NOIR is 
not physically received by the affected party is not persuasive and is not supported by Matter ofEs time. 
D. Notice and Due Process 
The Petitioner reasserts its previous challenge that procedural defects in this case have deprived it of 
its constitutionally protected due process rights. 
First, the Petitioner disagrees with our determination "[ e ]ven if a petitioner doesn't receive a NOIR 
and revocation decision . . . USCIS provides sufficient notice if the Agency followed relevant 
regulations and met due process expectations." The Petitioner emphasizes that we did not provide 
adequate legal support for that conclusion and asserts that neither actual notice nor constructive notice 
of the revocation proceeding was provided in this case. 
The Petitioner further states: 
AAO's position in these proceedings misses the point that despite petitioner's claimed 
omission (with reason, already stated in the records of these proceedings) to update 
their address, USCIS' s deficient efforts to provide proper notice to the petitioner, while 
having specific knowledge that petitioner has not notified of the negative action notice 
(by NOID) and subsequent revocation (by virtue of the fact that such revocation notice 
was actually, physically returned to USCIS) amounts to deliberate violation of 
petitioner's constitutional right of due process .... 
In support of its contention, the Petitioner relies on Jones v. Flowers, 547 U.S. 220 (2006) (holding 
that the plaintiff's failure to comply with his statutory obligation to update his address did not relieve 
the government of its constitutional obligation to provide adequate notice). The Court did not set forth 
a standard for what constitutes "additional reasonable steps" only noting that "reasonable follow up 
measures" that could have been taken by the government would include resending a notice by regular 
mail, posting notice on the front door, or addressing the notice to "occupant." Id. at 235. The Court 
found, however, that searching government records for updated contact information is neither 
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practicable nor constitutionally required. Id. at 235-236 (holding that the State was not required to 
search the phone book or other government records in order to find taxpayer's new address because 
such searches impose "burdens on the State significantly greater than the several relatively easy 
options" otherwise available). 
The Petitioner has not cited to any caselaw applying Jones in petition revocation proceedings before 
USCIS, although we note that the Court's holding has been applied to immigration bond proceedings. 
See Echevarria v. Pitts, 641 F.3d 92 (5th Cir. 2011). Under Echevarria, when Immigration and 
Customs Enforcement (ICE) becomes aware that an obligor did not receive notice demanding delivery 
of a noncitizen by certified mail, they must take reasonable additional steps to notify the obligor of the 
demand. Id. at 94-95. Sending the notice to the obligor's last known address via regular mail after 
the certified mail attempt is considered sufficient to fulfill this requirement. 
Here, the Director complied with the applicable regulation for service ofUSCIS notices and decisions 
by mailing the NOIR and revocation decision to the Petitioner at its last known address. See 8 C.F.R. 
§ 103.8(a)(l). As explained in our prior decisions, neither the regulations nor agency policy require 
USCIS to independently search for a new address for a petitioner when a notice is returned as 
undeliverable. Even if we determined that Jones applies in this context, the Petitioner's consistent 
claim that USCIS was required to search other government records, including separate records of 
proceeding filed by the Petitioner, would not be persuasive. As emphasized in our decision dismissing 
the appeal, under USCIS policy, each benefit request creates its own separate record of proceeding. 
See 1 USCIS Policy Manual E.2, https://www.uscis.gov/policy-manual (defining the term "record of 
proceeding" as "the organized official materials constituting the record of any application, petition, 
hearing, or other proceedings before USCIS"). Therefore, while the Petitioner here may have provided 
an updated address in later filings before USCIS, those filings, including any nonimmigrant petitions 
filed on behalf of the Beneficiary, are not part of the record of proceeding for the instant immigrant 
petition. 
Further, the record reflects that USCIS acted on the returned notice by updating the online case status 
system for this petition to reflect that a notice (the notice ofrevocation) was returned as undeliverable 
in December 2018 and noting it "could have a serious effect" on the Petitioner's case. This update 
provided instructions for requesting a copy of the notice, stated that the Petitioner should make such 
request "immediately," and advised on how to submit a change of address to USCIS. While it appears 
that the Petitioner did not access this system until after it learned of the revocation through other means 
in March 2020, its claim that it had no way of knowing about the revocation earlier due to the non­
delivery of the NOIR and revocation decision is unpersuasive. 
Finally, we acknowledge that the Petitioner suggests that the regulations at 8 C.F.R. §§ 205.2 and 
103.8(a)(l), which permit the revocation of an immigrant petition approval on notice by mailing a 
NOIR to a Petitioner's last known address, do not include adequate due process protections. However, 
we cannot address arguments on the constitutionality of laws enacted by Congress or on regulations. 
See, e.g., Matter of C-, 20 I&N Dec. 529, 532 (BIA 1992) (holding that the Immigration Judge and 
Board of Immigration Appeals lacked jurisdiction to rule upon the constitutionality of the Act and its 
implementing regulations); Matter of Hernandez-Puente, 20 I&N Dec. 335, 339 (BIA 1991) ("It is 
well settled that it is not within the province of this Board to pass on the validity of the statutes and 
regulations we administer.") ( citations omitted). 
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III. CONCLUSION 
On motion to reconsider, the Petitioner has not established that our previous decision was based on an 
incorrect application of law or policy at the time we issued our decision. Therefore, the motion will 
be dismissed. 8 C.F.R. § 103.5(a)(4). Further, many of the Petitioner's contentions in their current 
motion merely reargue facts and issues we have already considered in our previous decisions. See 
e.g., Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) ("a motion to reconsider is not a process by 
which a party may submit, in essence, the same brief presented on appeal and seek reconsideration by 
generally alleging error in the prior Board decision"). We will not re-adjudicate the petition anew and, 
therefore, the underlying petition remains denied. 
Further, the Petitioner has not provided new facts to establish that we erred in dismissing the prior 
motion. Because the Petitioner has not established new facts that would warrant reopening of the 
proceeding, we have no basis to reopen our prior decision. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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