dismissed EB-3 Case: Accounting

U.S. Citizenship 
and Immigration 
Services 
In Re : 14907047 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 1, 2021 
The Petitioner, a provider of financial consulting services, seeks to employ the Beneficiary as an 
accountant. The company requests his classification under the third-preference, immigrant category for 
professionals. See Immigration and Nationality Act (the Act) section 203(b )(3)(A)(ii), 8 U.S.C. 
§ 1153(b)(3XA)(ii). 
After initially granting the filing, the Director of the Texas Service Center revoked the petition's 
approval. The Director concluded that the Petitioner and Beneficiary falsely concealed family 
relationships between the Beneficiary and the company's principals and that the Petitioner didn't 
demonstrate the required availability of the offered position to U.S. workers. The Director also 
dismissed the Petitioner's fo Bowing motion to reopen, finding that the company didn't demonstrate 
that its delay in filing the untimely motion was reasonable and beyond its control. 
In revocation proceedings, the Petitioner bears the burden of establishing eligibility for the requested 
benefit by a preponderance of evidence. SeeMatterofHo, 19 I&NDec. 582,589 (BIA 1988)(citation 
omitted) (discussing the burden of proof); see also Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 
2010) (discussing the standard of proof). Upon de nova review, we will dismiss the appeal. 
I. EMPLOYMENT-BASED IMMIGRATION 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must apply to the U.S. DepartmentofLabor(DOL) for certification that: (l)there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and (2) the employment of a 
noncitizen in the position won't harm wages and wotking conditions ofU. S. workers with similar jobs. 
See section 212(a)(5) of the Act, 8 U.S.C . § 1182(a)(5). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U.S.C. § 1154. 
Among other things, USCIS determines whether a noncitizen beneficiary meets the requirements of a 
certified position and a requested immigrant visa category. 8 C.F.R. § 204.5(1). 
Finally, ifUSCIS approves a petition, a noncitizen beneficiary may apply for an immigrant visa abroad 
or, if eligible, "adjustment of status" in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If 
supported by a record, the erroneous nature of a petition's approval justifies its revocation. Matter of 
Ho, 19 I&N Dec. at 590. 
USCIS may issue a notice of intent to revoke (NOIR) a petition if the unexplained and unrebutted 
record at the time of the NOIR's issuance would have warranted the filing's denial. Matter of Es time, 
19 I&N Dec. 450, 451 (BIA 198 7). USCIS properly revokes a petition's approval if a petitioner's 
NOIR response doesn't overcome stated revocation grounds. Id. at 451-52. 
II. FACTS 
In September 2018, the Director mailed a NOIR to the Petitioner at its address of record. Since the 
petition's approval in November 2007, the company had relocated. But the Petitioner hadn't put its 
new address into the record. 
Consistent with Department of Homeland Security (DHS) regulations, the NOIR allowed the 
Petitioner 33 days to respond to the notice. See 8 C.F.R. § 103.2(b )(8)(iv) (allowing a maximum of 
30 days to respond to a notice of intent to deny); see also 8 C.F.R. § 103.8(b) (adding three additional 
days of response time when USCIS serves notice by mail). USCIS didn't receive a response within 
the 33-day period. The Director therefore mailed a written decision to the Petitioner in November 
2018, revoking the petition's approval for the grounds alleged in the NOIR. 
Shortly after the revocation, the U.S. Postal Service returned the decision to USCIS as undeliverable. 
The postal service marked the decision's unopened envelope as "attempted not known" and "unable 
to forward." The postal service didn't similarly return the NOIR that USCIS previously mailed to the 
Petitioner at the same address. 
In April 2020, the Petitioner moved to reopen the revocation proceedings. The Petitioner stated that 
it didn't learn of the petition's revocation until the prior month, when USCIS notified the company of 
the Agency's intention to deny the Petitioner's requested extension of the Beneficiary's H-lB 
nonimmigrantwork visa status. See section214,n.5 of the Act, 8 U.S.C. § 1184, n.5 (allowingH-lB 
extensions beyond the normal six-year admission period for eligible beneficiaries of approved Form 
I-140 petitions). The Director denied the motion as untimely. 1 
On appeal, the Petitioner doesn't challenge the revocation grounds or findings. Rather, the company 
asserts that USCIS revoked the petition's approval without adequate notice and should have excused 
the company's untimely filing of the motion to reopen. 
1 The motion decision mistakenly states thatthe Petitioner had to file the motion within 15 days of thepetition's revocation. 
By regulation, the Petitioner had 33 days in which to file the motion: 30 days from the petition's revocation, plus an 
additional three days because USCIS senred the revocation decision by mail. See 8 C.F.R. § § 103 .5(a)(l), 103 .8(b). The 
Petitioner doesn't allege thatthe misstatement prejudiced the company. 
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III. NOTICE OF THE REVOCATION 
Unless a petition's approval is subject to "automatic revocation" under 8 C.F.R. § 205.1, USCIS must 
notify a petitioner of the Agency's intention to revoke a petition. 8 C.F.R. § 205 .2( a), (b ). "The 
petitioner ... must be given the opportunity to off er evidence in support of the petition ... and in 
opposition to the grounds alleged forrevocation of the approval." 8 C.F.R. § 205 .2(b ). Also, if USC IS 
ultimately decides to revoke a petition's approval, a director must provide a petitioner "with a written 
notification of the decision that explains the specific reasons for the revocation." 8 C.F.R. § 205 .2(c). 
The Petitioner contends that USCIS provided inadequate notice because the company didn't receive 
the Director's NOIR or revocation decision. The Petitioner therefore argues that USCIS violated 
regulations and improperly revoked the petition's approval. 
Even if a petitioner doesn't receive a NOIR and revocation decision, however, USCIS provides 
sufficient notice if the Agency followed relevant regulations and met "due process" expectations. See 
Matter ofNevilo Cardenas, 28 I&N Dec. 68, 71 (BIA 2020) (citation omitted) (finding that, where 
"actual notice" of a scheduled hearing in removal proceedings wasn't accomplished, "constructive 
notice" sufficed); see also U.S. Const. amend. V (providing that no person shall "be deprived of life, 
liberty, or property, without due process of law"). 
The record shows that, pursuant to 8 C.F.R. § 205 .2(b ), the Director mailed written notice of the 
petition's proposed revocation to the Petitioner. Also, under 8 C.F.R. §§ 103.2(b )(8)(iv), 103.8(b), 1he 
Director afforded the Petitioner at least 33 days to respond to the NOIR. In addition, under 8 C.F.R 
§ 205 .2( c ), the Director issued a written decision explaining the reasons for revocation. The record 
therefore establishes USCIS' compliance with relevant regulations. Also, the Petitioner hasn't 
demonstrated that it has any additional expectations of due process. Most courts have found that 
noncitizens lack protectable, constitutional interests in immigrant visa petitions. See Mantena v. 
Johnson, 809 F.3d 721, 736 (2d Cir. 2015) (noting "the doubts cast by many courts on the liberty and 
property interests implicated in an immigrant visa"). The record therefore also demonstrates that 
USCIS provided the Petitioner with sufficient due process protections. 
The Petitioner asserts that USCIS should have sent both the NOIR and the revocation decision to 1he 
company's current address. The Petitioner argues that, before USCIS issued the NOIR in September 
2018 and the revocation decision in November 2018, the company's July 2016 petition to extend 1he 
Beneficiary's H-lB visa status informed the Agency of the company's new address. The Petitioner 
further notes that the postal service's return of the unopened, revocation decision in December 2018 
notified USCIS of the invalidity of the company's prior address. 
Under USCIS policy, however, each benefit request creates its own, separate record of proceeding. 
See USCIS Policy Manual, Vol. 1, PartE, Ch. 2, https://www.uscis.gov/policy-manual/volurne-l-part­
e-chapter-2 (last visited Sep. 16, 2021) ( defining the term "record of proceeding" as "the organized, 
official materials constituting the record of any application, petition, hearing, or other proceeding 
before USCIS"). When adjudicating a petition, USCIS must review that filing's record of proceeding. 
See 8 C.F.R. § 103 .2(b )(16)(ii) (stating that a "determination of statutory eligibility shall be based only 
on information contained in the record of proceeding") (emphasis added). USCIS needn't review 
records of other proceedings. Thus, if the Petitioner wanted USCIS to know its current address 
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regarding this petition, it had to submit the address into the petition's record. The Petitioner could 
have accomplished that by mail, by going on line, or by calling a USCIS toll-free, telephone number. 
See DHS, "Ombudsman Update: Change of Address with USCIS," http://www.dhs.gov/ 
files/publications/gc_l305649739320.shtm (last visited Sep. 16, 2021). But "[i]t is the sole 
responsibility of the applicant/petitioner to ensure USCIS has the correct address information on file." 
Id. As the Director found, "The petitioner is responsible to provide notification to USCIS when the 
company's address changes and specifically for each petition filed." Thus, USCIS didn't violate 
regulations or policy by mailing the NOIR and the revocation decision to the Petitioner's last address 
of record. 
For the foregoing reasons, USCIS adequately notified the Petitioner of the petition's revocation. We 
will next consider whether the Agency should have excused the company's untimely filing of its 
motion to reopen. 
IV. THE UNTIMELY FILING OF THE MOTION TO REOPEN 
The Petitioner moved to reopen the revocation proceedings in April 2020, more than a year after the 
revocation of the petition's approval in November 2018. A petitioner must generally file a motion to 
reopen within 33 days of the service of an adverse decision by mail. 8 C.F.R. § § I 03 .5(a)(l ), I 03.8(b). 
USCIS, however, has discretion to excuse an untimely filing of a motion to reopen if a petitioner 
demonstrates "that the delay was reasonable and beyond [its] control." 8 C.F.R. § 103.S(a)(l). 
The Petitioner asserts that its delay in filing the motion to reopen was reasonable because the company 
submitted the motion within 33 days of learning of the petition's revocation. The Petitioner also 
contends that the filing delay was beyond its control because USCIS should have sent both the NOIR 
and the revocation decision to the company's current address. 
As previously discussed, however, regulations and USCIS policy required the Petitioner to keep the 
Agency informed of the company's address on each of its pending benefit requests. Thus, USCIS 
didn't err in mailing the NOIR and the revocation decision to the Petitioner's last address ofrecord. 
Because the Petitioner bore responsibility for updating its address in this petition's record, the 
company hasn't demonstrated that the motion's untimely filing was beyond its control. The Petitioner 
therefore hasn't established that USCIS should have excused the company's untimely filing of the 
motion to reopen. 
The Petitioner further asserts that its inability to respond to the NOIR will result in "[e]xtreme and 
exceptional hardship"to it and the Beneficiary. The Petitioner states that, notonlywill the Beneficiaty 
lose his basis for immigrating to the United States, but the company will suffer "a big financial loss" 
in having to replace "a well-qualified long-term employee." 
In determining whether to excuse an untimely motion to reopen, however, the regulation at 8 C.F.R. 
§ 103.S(a)(l) doesn't permit USCIS to consider hardship. We are unaware of any other provision 
allowing acceptance of the untimely filing based on hardship. The Petitioner's additional argument 
therefore is unavailing. 
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For the foregoing reasons, the Petitioner hasn't demonstrated that the untimely filing of the motion to 
reopen merited pardoning. 
V. CONCLUSION 
The record doesn't support the Petitioner's claims that USC IS revoked the petition's approval without 
adequate notice and should have excused the company's untimely filing of its motion to reopen. We 
will therefore affirm the revocation of the petition's approval and the motion's dismissal. 
ORDER: The appeal is dismissed. 
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