dismissed EB-3 Case: Beauty Supply

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 17, 2024 In Re: 28407817 
Motions on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a sole proprietor who operated beauty supply stores, sought to employ the Beneficiary 
as a wigmaker. He requested the Beneficiary's classification under the employment-based, third­
preference (EB-3) immigrant visa category as a "skilled worker." See Immigration and Nationality 
Act (the Act) section 203(b )(3)(A)(i), 8 U.S.C. § 1153(b )(3)(A)(i). U.S. businesses may sponsor 
noncitizens for permanent residence in this category to work in jobs requiring at least two years of 
training or experience. Id. 
The Director of the Texas Service Center revoked the petition's initial approval. Finding that the filing 
was erroneously granted, the Director concluded that the Petitioner did not demonstrate: his required 
ability to pay the offered job's proffered wage; the Beneficiary's possession of the minimum 
experience required for the job and the requested immigrant visa category; or the job's availability to 
U.S. workers. The Director also found that the Petitioner and Beneficiary willfully misrepresented 
material facts on the accompanying certification from the U.S. Department of Labor. 
We dismissed the Petitioner's following appeal, affirming the Director's conclusions regarding the 
Petitioner's ability to pay the proffered wage and the Beneficiary's possession of the required 
experience. See In Re: 00463994 (AAO June 7, 2022). We also withdrew the Director's findings 
regarding the job's availability to U.S. workers and the alleged misrepresentations on the labor 
certification. Id. Because the Petitioner died after the appeal's filing, we further added a potential 
denial ground regarding the job offer's continuing validity. Id. After our appellate decision, the 
Petitioner's son filed combined motions to reopen and reconsider the matter. In dismissing his 
motions, we found that he had not demonstrated the Beneficiary's qualifying experience and reserved 
consideration of the other issues argued on motion. See In Re: 24544158 (AAO Feb. 7, 2023). 
The matter returns to us on a second round of combined motions by the Petitioner's son. Because he 
has not demonstrated his standing to file the motions, we must dismiss them. 
A motion to reopen or reconsider must be filed by an "affected party." 8 C.F.R. § 103.5(a)(l)(i). The 
term means "the person or entity with legal standing in a proceeding." 8 C.F.R. § 103.3(a)(l)(iii)(B) . 
In visa petition proceedings , the affected party is generally the petitioner. Id. We must dismiss 
motions that do not meet applicable requirements. 8 C.F.R. § 103.5(a)(4). 
On November 2, 2023, we sent the Petitioner's son a notice of intent to dismiss (NOID) his motions, 
informing him that he did not appear to be an affected party eligible to file them. Rather, the affected 
party appeared to be his father - the Petitioner and the beauty supply business's sole proprietor. A sole 
proprietorship is an unincorporated business indistinguishable from its owner. Matter of United Inv. 
Grp., 19 I&N Dec. 248, 250 (Comm'r 1984). The record shows that the petitioning owner died in 
2017. 
The Petitioner's son states that he received his father's business in probate proceedings after his 
father's death. He says that he continues to operate the business as a sole proprietorship from the same 
locations and under the same name as his father did. He also states that he offers the same position to 
the Beneficiary. But, because the Petitioner's business was a sole proprietorship and his son has not 
demonstrated his father's transfer of its ownership before his death, the business terminated when he 
died. See Ga. Sec'y of State, Ga. Corps. Div., "Which Legal Entity is Right for Your Business?" 
sos.ga.gov/sites/default/files/2022-01/legal_entity.pdf ('The sole proprietor has total control of the 
business. The problem with total control is that if the owner dies, the business ceases to exist."); see 
also Vernon v. Schuster, 688 N.E.2d 1172, 1177 (Ill. 1997) (holding that a seller's sole proprietorship 
ceased to exist upon his death). Thus, the Petitioner's son operates a different business than his father, 
and he has not established himself as an affected party in these proceedings. 
In his NOID response, the Petitioner's son contends that we should not dismiss his motions. He asserts 
that the Beneficiary qualifies to work for his business under the Act's "portability" provision and that 
we must treat the Beneficiary in these revocation proceedings as an affected party. See Matter of V­
S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). If a beneficiary changes jobs or 
employers, the portability provision requires the petition - under certain conditions - to "remain valid." 
Section 204(j) of the Act, 8 U.S.C. § l 154(j). The conditions are that the beneficiary has an application 
for adjustment of status that has remained unadjudicated for at least 180 days and that their new job 
remains in the same or similar occupational classification as the job offered in the petition. Id. If a 
beneficiary in revocation proceedings qualifies for portability and properly requested to port to a new 
job, U.S. Citizenship and Immigration Services (USCIS) must treat them as an affected party. Matter 
of V-S-G-, supra, at *10. 1 
But the Beneficiary's portability would not help the Petitioner's son. The motions before us came 
from the Petitioner's son, not the Beneficiary. Thus, the Beneficiary's portability 2 would not make 
the Petitioner's son an affected party and allow us to accept his filings. 
1 The portability provision does not affect USCIS' revocation authority, which permits revocation "at any time" for "good 
and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155; see Herrera v. USC1S, 571 F.3d 881, 889 (9th Cir. 2009). 
2 Also, the Petitioner's son has not demonstrated the Beneficiary's qualifications to port. The record indicates that the 
Beneficiary would work in the same job offered in the petition. USCIS records also show that he has an adjustment 
application that has remained unadjudicated for more than 180 days. But, contrary to our case law, the Petitioner's son 
has not demonstrated that the Beneficiary properly requested to port. See Matter of V-S-G-, supra, at *10 (stressing that 
"a beneficiary must be eligible to and have properly requested to port") ( emphasis added). USCIS requires a beneficiary 
seeking to port to submit a Form 1-485 Supplement J, Request for Portability Under INA Section 204(j), "in accordance 
with the form's instructions." 8 C.F.R. § 245.25(a). The NOID response of the Petitioner's son includes a Form 1-485 
Supplement J properly signed by him and the Beneficiary. But, contrary to the form's instructions, the Beneficiary 
submitted the form to us rather than to the filing address of his Form T-485, Application for Adjustment of Status. See 
USCTS, Form T-485 Supplement J, "Where to file," www.uscis.gov/i-485supj. Neither the Beneficiary nor the Petitioner's 
2 
For the forgoing reasons, the Petitioner's son has not established himself as an affected party in these 
proceedings. As he does not meet the motion requirements at 8 C.F.R. § 103.5(a)(l)(i), we must 
dismiss his combined motions. See 8 C.F.R. § 103.5(a)(4). 
Our conclusion regarding the standing of the Petitioner's son resolves these motions. Thus, we decline 
to reach and hereby reserve his arguments on motion regarding: the Petitioner's ability to pay the 
proffered wage; the Beneficiary's qualifications for the offered job and requested immigrant visa 
category; and the Petitioner's intent to employ the Beneficiary in the job. See INS v. Bagamasbad, 
429 U.S. 24, 25 (1976) (stating that agencies need not make "purely advisory findings" on issues 
unnecessary to their ultimate decisions); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant did not otherwise qualify for 
relief). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
son claims, nor do USCTS records indicate, that the Beneficiary filed a Form T-485 Supplement J to the USCTS office 
where the Beneficiary filed his adjustment application. The Beneficiary therefore did not properly request to port and. 
thus, under V-S-G-, would not qualify for treatment as an affected party in these revocation proceedings. 
3