dismissed EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 30, 2024 In Re: 33179708 
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. It requests his classification as a professional under the third preference immigrant 
classification. See Immigration and Nationality Act (the Act), section 203(b )(3)(A)(ii), 8 U.S.C. § 
1153(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 untimely 
motion to reopen, concluding the Petitioner did not demonstrate that the lengthy delay in filing the 
motion was reasonable and beyond the Petitioner's control. We dismissed the Petitioner's appeal of 
that decision and four 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 both 
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). Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). 
II. ANALYSIS 
The issues before us for these combined motions are limited to the following: (1) whether the Petitioner 
establishes that the dismissal of its fourth combined motion was based on an incorrect application of 
law or policy; and (2) whether the Petitioner presents new facts, supported by evidence, showing 
proper cause to reopen our decision. We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 
1992) (requiring that new evidence have the potential to change the outcome). 
The record reflects that the Director initially approved this immigrant petition in 2007 but 
subsequently revoked its approval in 2018. In the notice ofrevocation, the Director observed that the 
Petitioner did not submit a response a notice of intent to revoke (NOIR). 1 In 2020, the Petitioner filed 
an untimely motion to reopen in which it claimed that it first learned of the revocation a month prior, 
and 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 delay in filing the motion was reasonable and 
beyond the Petitioner's control. In its subsequent appeal and four prior combined motions, the 
Petitioner has contended that the Director revoked the petition's approval without adequate notice and 
should have exercised discretion to excuse the untimely filing of the initial motion to reopen, pursuant 
to 8 C.F.R. § 103.5(a)(l )(i). 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 fifth motion, the Petitioner contests the correctness of our immediate prior decision dated March 
1, 2024, and of our earlier decisions, to the extent that they are referenced therein. The Petitioner sets 
forth multiple claims that we incorrectly applied the law or USCIS policy, which we will discuss in 
tum below. 
A. Petitioner's Obligation to Update Mailing Address with USCIS 
On motion, the Petitioner acknowledges that maintaining 
an updated mailing address is clearly the 
sole responsibility of an applicant or petitioner for cases that are pending adjudication before USCIS. 
However, it contends, as it has in prior motions, that USCIS has not clearly communicated guidance 
on a petitioner's obligation to update its address following the approval of an employment-based 
petition. The Petitioner asserts that, in light of the ambiguity surrounding its obligation to keep its 
address updated, a favorable exercise of discretion is warranted under 8 C.F.R. § 103.5(a)(l)(i). It 
emphasizes that the terms "reasonable" and "beyond control" are "open to interpretation" and "not 
restrictive or limited in their application." 
The Petitioner's contentions on this point 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"). As discussed in 
our decision dated March 1, 2024, our prior decisions sufficiently clarify that the burden to keep 
mailing addresses updated with USCIS always lies with the petitioner or applicant and provided 
adequate support for this determination. With the current motion, the Petitioner has not shown that 
our prior determination on this issue involved an incorrect application of law or USCIS policy. 
1 The record reflects the notice ofrevocation, 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 indicates that the revocation of this petition's approval was referenced in a notice of intent to deny issued 
on March 12, 2020, in connection with a Form I-129, Petition for a Nonimmigrant Worker, seeking an extension of the 
Beneficiary's H-lB nonimmigrant status. 
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B. Revocation following Non-Receipt ofNOIR 
In its prior motion, the Petitioner cited to Matter ofEstime, 19 I&N Dec. 450 (BIA 1987) in support 
of its assertion that revocation of a visa petition "is proper only after receipt of a properly issued 
NOIR." The Petitioner maintained that because it did not receive the NOIR and USCIS was aware 
that it was not delivered, the petition's approval was improperly revoked under Matter ofEstime. 
We concluded Matter of Estime does not support the Petitioner's proposition that a NOIR is only 
deemed to be properly served when it is received by the affected party. The Petitioner disagrees with 
our determination and quotes the following passage from Matter ofEstime: 
Where a notice of intention to revoke is based on an unsupported statement or an 
unstated presumption, or where the petitioner is unaware and has not been advised 
of derogatory evidence, revocation of the visa petition cannot be sustained, even if 
the petitioner did not respond to the notice of intention to revoke ... 
19 I&N Dec. at 452 ( emphasis in original). 
The Petitioner asserts that the quoted passage is directly applicable to the facts presented here and that 
the revocation of the petition approval cannot be upheld under Matter of Estime. Specifically, the 
Petitioner contends that its non-receipt of the NOIR caused it "to be unaware of the issuance of the 
NOIR, resulting in them being not advised of the derogatory evidence (which the NOIR presumably 
had) and therefore resulted in a non-response from the petitioner" ( emphasis in original). The 
Petitioner maintains that even if USCIS "followed the letter of the law and regulations ... it is well 
established and factually undisputed that it did not respond to the NOIR because it did not receive the 
notice." 
We disagree with the Petitioner's assertions regarding Matter ofEstime's applicability to this matter. 
In the passage quoted above, the Board contemplated the regulatory requirements applicable to 
inspection of evidence under 8 C.F.R. § 103.2(b)(2) (1987). The Board observed that to comply with 
that regulation and to be deemed properly issued, a NOIR must include a "specific statement of the 
facts underlying the proposed action" along with "supporting evidence" rather than being based an 
"unsupported statement or an unstated presumption." The Board also highlighted that regulation's 
requirement that an affected party be advised of any derogatory evidence considered by the former 
Immigration and Nationality Service (INS) of which the affected party is unaware, prior to INS' 
issuance of a final decision. Essentially, the Board in Estime concluded that a notice of revocation 
could not be upheld where the contents of the underlying NOIR did not comply with the substantive 
requirements under 8 C.F .R. § 103 .2(b )(2) (1987), even in circumstances where the affected party did 
not respond to the NOIR. The focus of the Board's decision, however, is on the regulatory 
requirements applicable to the substantive contents of a NOIR, not on the procedural requirements of 
its service to the affected party. 
Here, the Petitioner asserts that, because it did not receive the NOIR, it was unaware of and had not 
been advised of any derogatory evidence, and therefore the revocation cannot be upheld, 
notwithstanding its non-response to the NOIR. However, the Petitioner was effectively notified of the 
intended revocation and advised of any relevant derogatory evidence when USCIS mailed the NOIR 
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to its mailing address of record in compliance with the applicable revocation provision at 8 C.F.R. 
§ 205.2( c) and the regulations governing routine service at 8 C.F.R. § 103.8(a)(l)(i). Matter ofEstime 
does not support the Petitioner's position that a revocation cannot be upheld where, as here, the NOIR 
was properly issued and served based on applicable regulatory requirements. 
C. Notice and Due Process 
In our decision dismissing the Petitioner's fourth motion, we addressed its claim that procedural 
defects in this case have deprived it of its constitutionally protected due process rights. The Petitioner 
relied on Jones v. Flowers, 547 U.S. 220 (2006), in which the U.S. Supreme Court held that a 
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 of a property forfeiture for 
unpaid taxes. The Court concluded that "additional reasonable steps" are required after a mailed notice 
is returned undelivered. Id. at 235. However, it found that searching government records for updated 
contact information is neither practicable nor constitutionally required. Id. at 235-236. We 
emphasized that the Petitioner had not cited to any case law applying Jones in petition revocation 
proceedings before USCIS. 
On motion, the Petitioner asserts that it does not contend that USCIS should have searched for 
information held by outside parties, but instead that it should have taken a "convenient look" at its 
own internal records, alleging that the Petitioner's federal employer identification number would have 
allowed USCIS to search its own database across various cases with independent and separate records. 
The Petitioner's assertion is unpersuasive. As discussed in our prior decisions, neither the regulations 
for agency policy require USCIS to independently search for a new address for a petitioner when a 
notice is returned as undeliverable. As such we concluded that even ifwe found 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 for other cases filed by the Petitioner, would not be 
persuasive because each benefit request creates its own separate record of proceeding. 3 
In our prior decision, we also emphasized that USCIS acted on the returned notice of revocation by 
updating the online case status system for this petition to reflect that the notice was returned as 
undeliverable in December 2018. The 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. 
With the current notion the Petitioner asserts the USCIS online case status update regarding the 
returned notice was "hardly protective" of fundamental due process protections, especially because its 
updated address was "easily ascertainable." In support of this claim, the Petitioner asserts that the U.S. 
Supreme Court "provided guidance in this very issue" in Robinson v. Hanrahan, 409 U.S. 38 (1972). 
In the Robinson decision, the Court relied on its holding in Mullane v. Central Hanover Bank & Trust 
Co., 339 U.S. 306 (1950), where it found that notice by publication is not sufficient with respect to an 
3 See I 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"). 
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individual whose name and address are known or easily ascertainable. The Petitioner maintains that 
publication of information regarding the revocation of a petition approval on the USCIS website is 
similarly insufficient, noting, once again, that USCIS easily could have easily ascertained an updated 
address for the Petitioner had it checked its "own database." 
The Petitioner's argument is based on an incomplete reading of the Court's decision in Mullane. In 
that matter, the Court stated: 
Exceptions in the name of necessity do not sweep away the rule that, within the limits 
of practicability, notice must be such as is reasonably calculated to reach interested 
parties. Where the names and post office addresses of those affected by a proceeding 
are at hand, the reasons disappear for resorting to means less likely than the mails to 
apprise them of its pendency. The trustee has on its books the names and addresses of 
the income beneficiaries represented by appellant, and we find no tenable ground for 
dispensing with a serious effort to inform them personally of the accounting, at least 
by ordinary mail to the record addresses. 
339 U.S. at 318. 
Here, it is undisputed that USCIS informed the Petitioner of its notice of intent to revoke the approval 
of the petition and of the revocation decision by sending these notices by ordinary mail to their address 
of record, prior to the publication of any notice of non-delivery on the USCIS case status website. 
Moreover, publication to the case status system, which provides information that is directly accessible 
to the Petitioner and is linked to the unique case number assigned to its Form 1-140, was in fact 
reasonably calculated to reach the affected party and was not akin to the type of publication 
contemplated in Mullane, where notice to affected parties was provided only through publication in a 
local newspaper. 
While the Petitioner disagrees with the agency's policy regarding separate records of proceeding and 
asserts its new address was "easily ascertainable," it has not demonstrated that our prior decision is 
based on an incorrect application of that policy or any applicable law. 
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, although the Petitioner indicated that it was filing 
combined motions to reopen and reconsider, it has not provided new facts, supported by evidence, that 
would warrant reopening of the proceeding. See 8 C.F.R. § 103.5(a)(2). Accordingly, we will dismiss 
the motion to reopen. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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