dismissed EB-3 Case: Meat Processing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 17, 2023 In Re: 27186230 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Other Worker) 
The Petitioner, a meat processor, sought to permanently employ the Beneficiary as a meat boner. The 
company requested his classification under the employment-based, third-preference (EB-3) immigrant 
visa category as an "other worker." See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. § 1153(b)(3)(A)(iii). U.S. businesses may sponsor noncitizens for 
permanent residence in this category to work in jobs requiring less than two years of training or 
experience. Id. 
After the tiling's initial grant, the Director of the Nebraska Service Center revoked the petition's 
approval and dismissed the Beneficiary's following motion to reconsider. 1 The Director concluded 
that the company did not demonstrate its required ability to pay the offered job's proffered wage and 
submitted "falsified financial documentation." On appeal, the Beneficiary contends that the Director: 
unfairly "held him responsible" for the Petitioner's actions; unreasonably delayed the petition 's 
revocation; and violated his Due Process rights under the U.S. Constitution. 
As the appellant in these revocation proceedings, the Beneficiary bears the burden of demonstrating 
eligibility for the requested benefit by a preponderance of the evidence. See Matter of Ho, 19 l&N 
Dec. 582, 589 (BIA 1988). Exercising de novo appellate review, see Matter ofChristo 's, Inc., 26 I&N 
Dec. 537, 537 n.2 (AAO 2015), we conclude that we lack authority to consider his constitutional claim 
and that his other arguments lack merit. We will therefore dismiss the appeal. 
I. LAW 
Immigration as an "other" - or unskilled - worker generally follows a three-step process. First, a 
prospective employer must obtain certification from the U.S. Department of Labor (DOL) that: there 
are insufficient U.S. workers able, willing, qualified, and available for an offered position; and permanent 
1 As a petition beneficiary, the Beneficiary is not an "affected party." See 8 C.F.R. § 103.3(a)(l)(ii)(B). Thus, he could 
not file appeals and motions in the initial visa petition proceedings. But, in these revocation proceedings, U.S. Citizenship 
and Immigration Services (USCIS) treats him as an affected party because he qualified to "port" to a new employer under 
section 204G) of the Act, 8 U.S.C. § l l 54(j), and properly notified USCIS of his eligibility to port. See Matter of V-S-G­
Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). 
employment of a noncitizen in the position would not harm wages and working conditions of U.S. 
workers with similar jobs. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit an approved labor certification with an immigrant visa petition to 
USCIS. Section 204(a)(l)(F) of the Act, 8 U.S.C. § l 154(a)(l)(F). Among other things, USCIS 
determines whether a noncitizen beneficiary meets the requirements of a DOL-certified position and 
a requested immigrant visa category. 8 C.F.R. § 204.5(1)(3)(ii)(D), (4). 
Finally, if USCIS approves a petition, a 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 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, a petition's erroneous approval may justify its revocation. Matter of Ho, 
19 I&N Dec. at 590. 
USCIS properly issues a notice of intent to revoke (NOIR) a petition if the unrebutted and unexplained 
record at the time of the NOIR's issuance would have warranted the petition's denial. Matter of 
Estime, 19 I&N Dec. 450, 451 (BIA 1987). If a petitioner does not timely respond to an NOIR or the 
business's response does not overcome the alleged revocation grounds, USCIS properly revokes a 
petition's approval. Id. at 451-52. 
As discussed more fully below, the NOIR in this matter questioned the validity of the Petitioner's 
ability-to-pay evidence. The notice stated that, in 2013, the Petitioner's president told a USCIS officer 
that he has refused to submit copies of the business's federal income tax returns with any of its 
immigrant visa petitions, calling into question the company's purported 2001 tax return in this matter. 
II. FACTS 
The Petitioner filed the labor certification application accompanying this petition in March 1994. As 
listed on the labor certification, the company initially offered its job to a different noncitizen than the 
Beneficiary. Until July 16, 2007, employers could substitute qualified noncitizens into unused labor 
certifications. 20 C.F.R. § 656.11 ( a). When the Petitioner filed this petition in June 2002, it substituted 
the Beneficiary into the labor certification, and USCIS approved the petition in October 2003. At that 
time the Beneficiary's application for adjustment of status, which he had filed in February 2003, 
remained pending. 
In April 2021, the Beneficiary's adjustment application was still pending when he requested 
permission from USCIS to port to a new employer. Under the portability provision, a petition for a 
noncitizen whose adjustment application has remained unadjudicated for at least 180 days "shall 
remain valid" if they change jobs or employers and the new job is in the same or similar occupational 
classification as the one listed on the petition. Section 204(i) of the Act. USCIS granted the 
Beneficiary's portability request about 10 days after receiving it. 
2 
In July 2021, users issued the NOIR to the Petitioner. Because the Beneficiary qualified to port and 
properly requested to do so, users sent him a copy of the NOIR and allowed him to participate in the 
revocation proceedings. See Matter of V-S-G-, Adopted Decision 2017-06 at 10. 
The NOIR alleged that the Petitioner did not demonstrate its required ability to pay the offered job's 
proffered wage. See 8 e.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 onward). The labor certification states the 
proffered wage of the offered position of meat boner as $5 .50 an hour, or, based on a 40-hour work 
week, $11,440 a year. 
The petition's priority date is March 16, 1994, the date an office in DOL's employment service system 
accepted the labor certification application for processing. See 8 e.F .R. § 204.5(g)(2) ( explaining how 
to determine a petition's priority date). Thus, the Petitioner had to demonstrate its ability to pay the 
proffered wage from the petition's priority date of March 16, 1994 until June 26, 2002, the petition's 
filing date. 
Evidence of ability to pay must generally include copies of a petitioner's annual reports, federal 
income tax returns, or audited financial statements. 8 e.F.R. § 204.5(g)(2). If a petitioner employs at 
least 100 workers, however, users may instead accept a letter from a financial officer as proof of a 
business's ability to pay. Id. The NOIR notes that, as evidence of the Petitioner's ability to pay, the 
company submitted only a 1995 letter from its president, which stated its employment of 260 people, 
and the copy of its purported federal income tax return for 2001. The record lacks evidence that the 
Petitioner ever employed the Beneficiary. 2 
As noted above, the NOIR questioned the validity of the Petitioner's ability-to-pay evidence. The 
NOIR stated that, during a users officer's 2013 visit to the company, the Petitioner's president told 
the officer that he has refused to submit copies of the business's federal income tax returns with any 
of its immigrant visa petitions. Further, he declined to provide the officer with the Petitioner's tax 
returns, raising doubts about the validity of the company's purported 2001 tax return. Also, while the 
1995 letter indicates the Petitioner's employment of 260 people, the company's president reportedly 
told the users officer that the business usually had only about 25 employees. Based on the president's 
statements to the officer, the NOIR alleged the company's willful misrepresentation of its number of 
employees in the 1995 letter and submission of a false 2001 tax return. 
Shortly after users mailed the NOIRs, the U.S. Postal Service returned the Petitioner's notice to 
users as "undeliverable." The Beneficiary, however, timely responded to his notice. In a letter, he 
asked users to reconsider the petition's revocation, stating that he and his spouse had been waiting 
almost 20 years to become permanent residents, and that, during that time, two of their three children 
were born in this country. He did not, however, contest the revocation's basis or provide evidence 
that the Petitioner had ever employed or paid him. 
The Beneficiary's NOIR response also included a letter from the Petitioner's president. He stated: 
2 The Beneficiary need not work for the Petitioner until after he obtains permanent residence. See Matter ofRajah, 25 
l&N Dec. 127, 132 (BIA 2009) ("An alien is not required to have been employed by the certified employer prior to 
adjustment of status.") 
3 
Although the broker who worked on behalf of our company for immigration related 
matters provided incorrect information on immigration papers, it was true that we had 
been looking for workers who were willing to work at our plant. It had been very 
difficult to hire meat cutters and other workers for our plant. 
The Petitioner's president stated that the company is "unable to supply tax return copies for the 
applicable time period." But he said: "I can confirm that we made sufficient profits to cover [the 
Beneficiary's] proposed yearly salary of $11,440." 
In May 2022, the Director found the Beneficiary's NOIR response to be insufficient and revoked the 
petition's approval. The Beneficiary filed a motion to reconsider, again asking USCIS to rethink the 
revocation. He stated that "our family did not know [that there was] incorrect information on the 
immigration documents." The Beneficiary also suggested that, after the USCIS officer visited the 
Petitioner's plant in 2013, USCIS unreasonably delayed initiation of the revocation proceedings until 
2021. He stated: "It is very difficult to understand why USCIS took more than 8 years to send the 
aforesaid NOIR." 
Finding that the filing did not demonstrate USCIS' misapplication of law or policy, the Director, in 
February 2023, dismissed the Beneficiary's motion. See 8 C.F.R. § 103.5(a)(3) (requiring a motion to 
reconsider to demonstrate a prior decision's misapplication oflaw or policy based on the record at the 
time of the decision). 
III. ANALYSIS 
A. "Unreasonable Delay" 
On appeal, the Beneficiary contends that USCIS had "a general duty" to make a revocation decision 
on the petition "in a reasonable and timely manner." He states that he "lost a significant opportunity 
to dispute the claim, as the [revocation] decision was made after he had transferred his employment to 
another company." He argues that, because he no longer intended to work for the Petitioner, "he could 
not expect full support from the original employer" in responding to the NOIR. 
The Act's plain language, however, places no time constraints on a petition's revocation. Acting for 
the Secretary of Homeland Security, USCIS may revoke a petition's approval "at any time." Section 
205 of the Act. "Congress therefore placed no limitation on the Secretary's ability to revoke a 
previously approved petition." Cabrera Cabrera v. USCIS, 374 F. Supp. 3d 153, 162 (D.D.C. 2019). 
Also, we again note that the Beneficiary does not contest the revocation grounds based on USCIS' 
finding of insufficient evidence of the Petitioner's ability to pay, nor does he submit evidence that the 
company has employed him. 
To support his unreasonable-delay argument, the Beneficiary refers to purported cases from the U.S. 
Courts of Appeals for the Ninth and Federal Circuits. But he miscites the cases, and we are unable to 
find applicable cases based on either the case names or the legal citations he uses. The Beneficiary 
therefore has not demonstrated USCIS' purported duty to revoke the petition in a timely manner. 
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Further, we acknowledge that the petition's revocation will not allow the Beneficiary and his family 
opportunities to apply for permanent residence based on this Form I-140, Immigrant Petition for Alien 
Worker. But USCIS provided him with an opportunity to participate in the revocation proceedings, 
and he has not challenged the Director's conclusion that USCIS erroneously approved the petition. 
See Herrera v. USCIS, 571 F.3d 881, 886-89 (9th Cir. 2009) (holding that the portability provision 
does not affect USCIS' revocation authority and noting that "in order for a petition to remain 'valid 
[under the provision],' it must have been valid from the start"). The Beneficiary claims that the 
revocation's timing - after he ported to his new employer - deprived him of the Petitioner's help in 
challenging the revocation. But his NOIR response included a letter from the company's president. 
The record therefore does not establish that he "lost a significant opportunity to dispute" the petition's 
revocation. 
B. Responsibility for the Petitioner's Actions 
Although not included in his motion to reconsider, the Beneficiary's additional arguments on appeal 
are also unavailing. Citing federal court 
decisions, he contends that he "cannot be held responsible 
for the employer's violation of the immigration laws." He argues that he lacked control over the 
content of the Form I-140 for him and its supporting evidence. 
Contrary to the Beneficiary's argument, however, USCIS has not held him responsible for insufficient 
evidence of the Petitioner's ability to pay, the alleged misrepresentation in the company's letter, or the 
company's purported false tax return. Neither the NOIR nor the revocation decision accuse the 
Beneficiary of misrepresentation or find him inadmissible to the United States on that basis. See 
section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). 
Also, the federal decisions the Beneficiary cites to support his argument involve the Fair Labor 
Standards Act (FLSA), which establishes standards regarding minimum wages, overtime pay, 
recordkeeping, and youth employment. See Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 1988); 
Flores v. Amigon, 233 F. Supp. 2d 462 (E.D.N.Y. 2002). 3 The cases' facts therefore distinguish them 
from this matter. In Patel, the U.S. Court of Appeals for the Eleventh Circuit held that an 
undocumented noncitizen qualified as an "employee" within the meaning of the FLSA and therefore 
could legally seek unpaid wages and liquated damages under the act from his former employer. Patel, 
846 F.2d at 706. In Flores, a U.S. district court held that discovery regarding an employee's 
immigration status was not relevant to her FLSA claim and that "the potential for prejudice far 
outweighs whatever minimal probative value such information would have." Flores, 233 F. Supp. 2d 
at 464-65 (citation omitted). Because the Beneficiary's case does not involve the FLSA, the cited 
cases do not support his argument. 
C. Abuse of Discretion 
The Beneficiary also contends that, in revoking the petition's approval, USCIS abused its discretion 
by "ignoring" his prior porting to his new employer. He states that "USCIS should have known that 
3 The offered job's proffered wage of $5.50 an hour does not meet the worksite's current minimum wage rate of $7.25 an 
hour. See Pa. Dep't of Labor & Indus., "General Wage and Hour Questions," www.dli.pa.gov/lndividuals/Labor­
Management-Relations/llc/Pages/Wage- F AQs.aspx#:-:text= l .,Pennsylvania%20is%20%24 7 .25%20per%20hour. Thus, 
ironically, the Petitioner's labor certification no longer meets FLSA requirements. 
5 
[he] would be in a vulnerable situation, as he would not be able to receive any support from his original 
employer after leaving their employment." 
But, as previously discussed, the Act authorizes USeIS to revoke a petition's approval "at any time." 
Section 205 of the Act. Also, when contemplating revocation, users need not consider a 
beneficiary's circumstances. Rather, the Agency examines whether evidence at the time of a NOIR' s 
issuance would have warranted a filing's denial. Matter ofEstime, 19 I&N Dec. at 451. Further, as 
previously discussed, the Beneficiary had an opportunity to challenge the petition's revocation, and 
the Petitioner's president assisted him in responding by providing a letter. The record therefore does 
not demonstrate that users abused its discretion in revoking the petition's approval, or that the 
revocation's timing deprived the Beneficiary of the Petitioner's participation. 
D. The Beneficiary's New Employer 
The Beneficiary further contends that USeIS should have issued a NOIR copy to his new employer 
rather than to the Petitioner. He argues that, once he ported to his current employer, the Petitioner 
lacked incentive to challenge the petition's revocation. 
We addressed this issue, however, in V-S-G-, a decision that USeIS adopted as binding on all Agency 
employees. We held that original petitioners remain affected parties even after their beneficiaries port 
to new employers. Matter of V-S-G-, Adopted Decision 2017-06 at 12. We noted that: DHS 
regulations require petitioners' receipt of NOIRs and opportunities to respond to them; petitioners' 
may wish to defend themselves against NOIR allegations of fraud or immigration noncompliance; 
beneficiaries' immigration outcomes may affect petitioners' efforts to recruit and train other 
employees; petitioners may seek to support their former beneficiaries to encourage them to return to 
employment with the petitioners; and petitioners filed the petitions, paid their filing fees, and attested 
to their accuracy. Id. In contrast, we ruled that employers to whom beneficiaries have ported do not 
merit participation in revocation proceedings. Id. at 12-13. We noted that new employers: did not 
pay for the petitions' filings; are not responsible for maintaining the petitions; are not liable for the 
petitioners' noncompliance or malfeasance; cannot withdraw the petitions; cannot prevent 
beneficiaries from porting to other employers; and are not well-positioned to answer NOIR questions 
about the petitions or to provide additional evidence. Id. Unpersuaded by the Beneficiary's argument, 
we decline to alter our holding in V-S-G-. Additionally, the NOIR requested evidence of the initial 
Petitioner's ability to pay, materials that a later employer could not likely provide. 
E. Due Process 
Finally, the Beneficiary argues that the petition's revocation violated his constitutional Due 
Process 
rights. Under the Fifth Amendment, "[n]o person shall be ... deprived of life, liberty, or property 
without due process oflaw." 
We cannot rule on the constitutionality of federal regulations or laws. See, e.g., Matter of C-, 20 I&N 
Dec. 529, 532 (BIA 1992) (holding that an Immigration Judge and the Board oflmmigration Appeals 
(BIA) lacked jurisdiction to rule upon the constitutionality of the Act and its implementing 
regulations); Matter ofHernandez-Puente, 20 I&N Dec. 335,339 (BIA 1991) ("It is well settled that 
it is not within the province of this Board to pass on the validity of the statutes and regulations we 
6 
administer.") ( citations omitted). Thus, we decline to consider this argument. We note, however, that 
the Beneficiary's constitutional claim might be invalid. In a nonpublished decision, the U.S. Court of 
Appeals for the Fourth Circuit, which has jurisdiction over the Beneficiary's residence, ruled that a 
noncitizen could not allege a colorable Due Process claim because he could not establish a protected 
life, liberty, or property interest in the immigrant visa petition for him that USCIS revoked. See 
Diomande v. Gonzales, 247 Fed. Appx. 450,451 (4th Cir. 2007). 
III. CONCLUSION 
For the foregoing reasons, the Beneficiary has not demonstrated the Director's misapplication of law 
or policy in dismissing his motion to reconsider. We will therefore affirm the motion's dismissal. 
ORDER: The appeal is dismissed. 
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