dismissed EB-3 Case: Caregiving

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-G-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 22,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT VISA PETITION FOR ALIEN WORKER 
The Petitioner, an operator of a residence for developmentally disabled adults, seeks to permanently 
employ the Beneficiary as a caregiver. It requested his classification as a skilled worker under the third 
preference immigrant category. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(i), 8 U.S.C. § 1153(b)(3)(A)(i). This classification allows a U.S. employer to sponsor a 
foreign national for lawful permanent resident status to work in a position that requires at least two 
years of training or experience. 
The Director, Nebraska Service Center, denied the petition on September II, 2009. The Director found 
that the offered position did not qualify for classification as a skilled worker because the minimum 
requirements were a high school education and no experience. We dismissed the Petitioner's appeal on 
February 27, 2013, affirming the Director's decision that the job opportunity does not require a skilled 
worker. 
The matter is now before us on the Petitioner's motions to reopen and reconsider. 1 The Petitioner 
asserts a claim of ineffective assistance of counsel and submits evidence that its prior attorney 
requested the v.Tong classification on the Form I-140, Immigrant Petition for Alien Worker. 
Because the filings are untimely, we will deny the motion to reopen and the motion to reconsider. 
Motions must generally be filed within 33 days of decisions served by mail. 8 C.F.R. 
§§ 103.5(a)(l)(i), 103.8(b). But we may excuse an untimely motion to reopen "where it is 
demonstrated that the delay was reasonable and was beyond the control of the applicant or 
petitioner." !d. 
In the instant case, we received the Petitioner's motions on November 16, 2015, more than 2 years 
after we mailed our appellate decision. The motions are therefore untimely. 
1 The Fonn 1-2908, Notice of Appeal or Motion, submitted by the Petitioner contains two copies of Page 2: one 
identifying the filing as an appeal; and the other indicating the filing ofmotions to reopen and reconsider. Because we 
cannot exercise appellate jurisdiction over our own decisions, we will not consider the filing as an appeal. See fanner 8 
C.F.R. § 103.1(1)(3)(iii)(B); Dep't of Homeland Sec. Delegation No. 0150.1, § II. U. (effective Feb. 28, 2003) 
(delegating appellate jurisdiction to us over only the matters described in the former regulation). 
Matter of E-G-H-
The Petitioner's motions include a June 8, 2015, letter from its prior counsel. The letter states that 
the attorney "inadvertently" indicated on the Form l-140 that the Petitioner sought the Beneficiary's 
classification as a skilled worker, rather than as an unskilled worker. See section 203(b)(3)(iii) of the 
Act (allocating immigrant visas for "other workers" capable of performing unskilled labor for which 
qualified workers are unavailable in the United States). In a joint letter of October 27, 2015, the 
Petitioner's director and the Beneficiary state that they obtained the Jetter from prior counsel "[a]fter 
months of trying to locate and contact [him]." 
The record does not demonstrate that the delay in the Petitioner's motion to reopen was reasonable 
and beyond its control. Although the Petitioner's director and the Beneficiary state that they spent 
months trying to locate prior counsel, the record indicates that the Petitioner could have perfected its 
claim of ineffective assistance of counsel sooner. 
The Petitioner first raised its claim of ineffective assistance of counsel in its appeal of October 8, 
2009. Our appellate decision of February 27, 2013 informed the Petitioner that, in bringing its 
claim, it did not satisfy case Jaw requirements. See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 
1988), ajf'd, 857 F.2d 10 (1st Cir. 1988) (holding that a motion based on a claim of ineffective 
assistance of counsel must generally include: an affidavit detailing the representation agreement 
with former counsel; evidence that former counsel was informed of the allegations and allowed an 
opportunity to respond to them; and an indication whether a complaint was filed with appropriate 
attorney disciplinary authorities and, if not, why not). 
The record on motion does ryot specify or document the number of "months" the Petitioner's director 
and the Beneficiary spent locating prior counsel. The record therefore does not establish that the 
motion's filing delay of more than 6 years from the date that the Petitioner discovered former's 
counsel error and more than 2 years from the date of our appellate decision was reasonable. In 
addition, prior counsel's letter is dated June 8, 2015, suggesting that the Petitioner unreasonably 
delayed the submission of its November 2015 filing even from the date it obtained prior counsel's 
response. 
The record does not establish that the Petitioner's delay in filing its motion to reopen was reasonable 
and beyond its control pursuant to 8 C.F.R. § 103.5(a)(l)(i). We therefore decline to excuse the 
delay. We will therefore deny the motions to reconsider and reopen as untimely. 
Even if we accepted the filing as an untimely motion to reopen, the record would not establish the 
petition's approvability. The Petitioner has not complied with all of Lozada's requirements for a 
motion based on a claim of ineffective assistance of counsel. The record indicates that the Petitioner 
informed former counsel of the allegations and provided him an opportunity to respond. But the 
Petitioner did not submit an affidavit detailing its representation agreement with former counsel, nor 
did it indicate whether it filed a complaint against him with appropriate disciplinary authorities. See 
Lozada, 19 I&N Dec. at 639. 
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Matter of E-G-H-
Also, as noted in our decision and the Director's, the record does not establish the Petitioner's ability 
to pay the proffered wage. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its 
continuing ability to pay a proffered wage from a petition's priority date until a beneficiary obtains 
lawful permanent residence). 
As a sole proprietor, the Petitioner's director relied on his individual income and assets to 
demonstrate his ability to pay the proffered wage. But the record does not sufficiently detail his 
household expenses to establish his simultaneous ability to pay the proffered wage and to support 
himself and his dependent daughter. See Ubeda v. Palmer, 539 F. Supp. 647, 649 (N.D. Ill. 1982), 
aff'd, 703 F.2d 571 (7th Cir. 1983) (holding that a sole proprietor did not establish his ability to pay 
where his net taxable income was insufficient to cover the proffered wage and to support himself, his 
spouse, and their five children). 
The Petitioner's director submitted copies of bills he received in individual months. But the record 
does not indicate some of his basic living expenses, such as food, clothing, and electricity, and does 
not state his total annual expenses or his average monthly expenses. The record also lacks evidence 
of the Petitioner's ability to pay in the years since it responded to the Director's request for evidence 
in March 2009. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to demonstrate its "continuing" 
ability to pay a proffered wage "until a beneficiary obtains lawful permanent residence"). 
In addition, online government records indicate the formation of a corporation with the Petitioner's 
name and address on July 26, 2010. See Cal. Sec'y of State, Bus. Programs, "Business Search," at 
http://kepler.sos.ca.gov/ (accessed Apr. II, 2016). The corporation's formation suggests that the 
petitioning sole proprietorship no longer exists and that a separate corporation operates its former 
business. Unless the corporation establishes itself as the sole proprietorship's "successor in 
interest," see Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 451, 452-53 (Comm'r 1986), the 
petition may be moot because the Petitioner no longer exists. See Matter ofLuis, 22 I&N Dec. 747, 
753 (BIA 1999) (explaining that an administrative tribunal may dismiss an appeal or motion as moot 
as a matter of prudence); see also 8 C.F.R. § 205.1(a)(3)(iii) (stating the automatic revocation of an 
employment-based petition "[u]pon termination of the employer's business"). 
In any future filings in this matter, the Petitioner must demonstrate that the pettlioning sole 
proprietorship continues to operate the business or, pursuant to Dial Auto, document the existence of 
a successor in interest. 
The motions to reopen and reconsider are untimely. Because the record does not demonstrate that 
the delay in filing the motion to reopen was reasonable and beyond the Petitioner's control, we 
decline to excuse the delay. We will therefore deny the motions. 
The petition will remain denied for the reasons stated above. In visa pelitton proceedings, a 
petitioner bears the burden of establishing eligibility for the requested benefit. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 J&N Dec. 127, 128 (BIA 2013). Here, the instant 
Petitioner did not meet that burden. 
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Matter of E-G-H-
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of E-G-H-, ID# 17864 (AAO July 22, 20 16) 
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