dismissed EB-3 Case: Culinary

U.S. Department of Homeland Security 
20  ass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
4 
clearly tbniva& 
invasion ofpe-I privacy 
 U. S. Citizenship 
and Immigration 
7 cm 
FILE: EAC-03-204-50115 Office: VERMONT SERVICE CENTER . Date: NOV 2 1 20@ 
IN RE: 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 9 1 153(b)(3) 
/ 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
x% Robert P. Wiema n, Chief 
Administrative Appeals Office 
I 
EAC-03-204-50115 
Page 2 \ I 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed. 
The petitioner is a restaurant. It filed the instant 1-140 petition to seek to employ the beneficiary permanently 
in the United States as a cook. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the Department of Labor. After issuing a 
request for additional evidence on May 3, 2004, the director issued a Notice of Intent to Deny (NOID) on 
October 26, 2004.' The NOID gave the petitioner thirty days to submit additional information, evidence or 
arguments to'support the petition with warning that failure to respond to this request would result in the denial 
of the petition. However, no response to the NOID was ever received by the director. Therefore, the director 
denied the petition on April 12,2005 because the response was never received. 
The regulation at 8 C.F.R. 5 103.2(b)(13) states the following: "Effect of failure to respond to a request for 
evidence or appearance. If all requested initial evidence and requested additional evidence is not submitted 
by the required date, the application or petition shall be considered abandoned and, accordingly, shall be 
denied." 
The regulations are clear that failure to respond to a request for evidence shall be considered abandonment of 
the petition and the petition shall be denied accordingly. Thus, the director should have denied the petition as 
abandoned because of the petitioner's failure to provide a timely response to the director's NOID. A denial 
due to abandonment may not be appealed. See 8 C.F.R. $ 103.2(b)(15). 
It is noted that the director gave notice to the petitioner that it could file an appeal in the instant case. Despite 
this error, however, the AAO is never bound by a decision of a service center or district director. See 
Louisiana Philharmonic Orchestra vs. INS, 44 F. Supp. 2d 800, 803 (E.D. La. 2000), aff'd., 248 F. 3d 1139 
(5' Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). this case, the regulations do not provide appeal for 
denials due to abandonment although counsel argues on appeal that the petitioner has no intention of 
abandoning this petition. 
As stated in 8 C.F.R. $ 103.3(a)(l)(v), an appeal shall be summarily dismissed if the party concerned fails to 
identifi specifically any erroneous conclusion of law or statement of fact for the appeal. 
! 
The petitioner here has not specifically addressed the reasons stated in the NOD and denial decision and has not 
provided any additional evidence to rebut the ground of denial that the petitioner had filed 5 1 1-140 petitions since 
1996 and among them 13 petitions were approved, and therefore, the petitioner failed to establish that it had the 
ability to pay all proffered wages for the multiple beneficianes, including the instant beneficiary. The petitioner 
has not even expressed disagreement with the director's decision. The appeal must therefore be summarily 
dismissed. 
The record of proceedin 
 contains a Form G-28, Notice of Entry of Appearance as Attorney or 
Representative, signed by bnd the petitioner's re resentative. However, the petitioner will be 
considered self-represented in these proceedings because is on USCIS List of Individuals 
who are NOT Attorneys or Accredited Representatives updated October 24, 2006. Additionally, even if 
counsel were recogni~~d in these 
 he failed to update the record of proceeding with his apparent 
change of address. 
1. . 
Since the address was not'updated, the decision was sent to the address on record and thus correctly issued. 
* 
 EAC-03-204-50115 
Page 3 
It may be noted that a denial of an 1-140 petition is without prejudice to the petitioner submitting a new 1-140 
based on the same approved ETA 750 labor certification. CJ: 8 C.F.R. $8 103.2 (a)(7)(ii) (new fees will be 
required with any new petition), 103.2(b)(15) (witKdrawa1 of a petition or denial of a petition due to 
abandonment does not preclude the filing of a new petition with a new fee). However, any new petition 
submitted by the petitioner would have to be supported by evidence sufficient to establish the petitioner's 
ability to pay the proffered wages for all multiple beneficiaries as of the priority dates and continuing until the 
beneficiaries obtain lawful permanent residence, including the years since the record closed in the instant 
petition. 
ORDER: The appeal is summarily dismissed pursuant to 8 C.F.R. $ 103.3(a)(l)(v).