dismissed EB-3 Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
MATTER OF 0-, INC . 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : OCT. 17, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a provider of information technology services, sought to employ the Beneficiary as a 
programmer analyst. It requested his classification under the third-preference immigrant category as 
a skilled worker or professional. See Immigration and Nationality Act (the Act) sections 
203(b)(3)(A)(i), (ii), 8 U.S.C. §§ 1153(b)(3)(A)(i), (ii). These employment-based, "EB -3" 
categories allow a U.S. business to sponsor a foreign national for lawful permanent resident status to 
work in a job requiring at least two years of training or experience, or a bachelor's degree . 
After the filing' s initial grant in the professional classification, the Director of the Nebraska Service 
Center revoked the petition's approval. Concluding that the Petitioner willfully misrepresented a 
material fact involving the accompanying certification from the U.S. Department of Labor, the 
Director invalidated the certification. We rejected the Beneficiary's following appeal as untimely. 1 
The matter is before us again on the Beneficiary's motions to reopen and reconsider. 
I. LAW AND ANALYSIS 
The motion to reopen and reconsider 2 in this case are based on our previous rejection of the 
Beneficiary 's appeal as untimely. However, the Beneficiary did not cite to any regulation that 
allows for a motion to be filed on a rejected appeal. When we reject an appeal, there is no merits­
based decision for us to review and therefore no basis for a motion to reopen or reconsider. As such, 
the motions must be denied as improperly filed. 
1 Beneficiaries generally cannot file appeals or motions in visa petition proceedings. See 8 C.F.R. § 103.3(a)l)(iii)(B) 
(excluding a beneficiary of a visa petition as an "affected party"). U.S. Citizenship and Immigration Services (USCIS), 
however, treats beneficiaries as affected parties if they are eligible to "port" under section 204(j) of the Act, 8 U .S.C. 
§ l 154(j), and properly request to do so. See Matter of V-S-G- Inc., Adopted Decision 2017-06, *14 (AAO Nov. 11, 
2017). The Beneficiary here asserts his standing to file under V-S-G-, but we note that the BeneficiaTy has not been 
recognized as an affected party. 
2 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 demonstrate that our decision was based on an inconect 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. 
§ l 03.5(a)(3). 
Matter of 0-, Inc. 
Even if we were to accept the motions, the motions could not be granted as they do not establish that 
the appeal was rejected in error. Citing a Department of Homeland Security regulation, the 
Beneficiary argues that we should have treated his appeal as a motion. See 8 C.F.R. 
§ 103.3( a)(2)(v)(B)(2) (requiring treatment of an untimely appeal as a motion if it meets requirements 
for reopening or reconsideration). Contrary to the Beneficiary's argument, however, the regulation 
requires the official who made the unfavorable decision - not the AAO - to consider treating an 
untimely appeal as a motion. As such, the record does not demonstrate that the decision to reject the 
appeal was erroneous. 
II. CONCLUSION 
The regulations do not allow for a motion to be filed on a rejected appeal. Thus, the motions before 
us were improperly filed and must be denied. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of 0-, Inc., ID# 5678541 (AAO Oct. 17, 2019) 
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