dismissed EB-3 Case: Software Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 13, 2024 In Re: 22240662 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Professional 
The Petitioner sought to employ the Beneficiary as a software engineer. It requested classification of 
the Beneficiary under the third-preference, immigrant classification for professional workers. 
Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This 
employment-based category allows a U.S. employer to sponsor a professional with a baccalaureate 
degree for lawful permanent resident status. 
Employment-based immigration generally follows a three-step process. To permanently fill a position 
in the United States with a foreign worker, a prospective employer must first obtain certification from 
the U.S. Department of Labor (DOL). See section 212(a)(5) of the Act, 8 U.S.C. § 1182(a)(5). DOL 
approval signifies that insufficient U.S. workers are able, willing, qualified, and available for a position. 
Id. Labor certification also indicates that the employment of a foreign national will not harm wages and 
working conditions of U.S. workers with similar jobs. Id. 
If DOL approves a position, an employer must next submit the certified labor application with an 
immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS). See section 204 of the 
Act, 8 U.S.C. § 1154, 8 C.F.R. § 204.5(a)(2) and (1)(3). Among other things, USCIS considers whether 
a beneficiary meets the requirements of a certified position and a requested immigrant visa 
classification. If USCIS approves the petition, a foreign national may finally 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. 
Following approval, ifUSCIS finds good and sufficient cause to revoke, it may do so at any time. See 
section 205 of the Act, 8 U.S.C. § 1155; 8 C.F.R. part 205. Upon the occurrence of certain events, 
revocations happen automatically. See 8 C.F.R. § 205. l(a)(3)(iii) . If the revocation will be based on 
any ground other than those specified in 8 C.F.R. § 205.1 (provisions governing conditions that trigger 
automatic revocation of approval), then USCIS must issue a notice of intent to revoke and provide the 
opportunity to submit evidence in opposition thereto, before proceeding with a written notice of 
revocation. See 8 C.F.R. § 205.2(b) and (c). 
In these proceedings , it is the Petitioner's , or in this case the Beneficiary 's burden, as the appellant, to 
establish eligibility for the requested benefit by a preponderance of the evidence. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). The AAO reviews 
the questions in this matter de novo. See Matter of Christo 's Inc., 26 T&N Dec. 537, 537 n.2 (AAO 
2015). 
The matter before us has a lengthy procedural history, which is incorporated into the decision. The 
petition was initially approved and its approval was later revoked. Following the Beneficiary's 
untimely appeal the matter was returned to the Nebraska Service Center to be treated as a motion. 1 In 
the June 2020 motion decision, the Director of the Nebraska Service Center upheld the revocation. 
The Beneficiary again filed an appeal. On appeal, in September 2021, we withdrew the Director's 
June 2020 decision and remanded the matter for further consideration. On remand, in December 2021, 
the Director again revoked the petition's approval. The matter is again before us on the Beneficiary's 
appeal. 
Subsequent to the initial filing, the original Petitioner's corporate entity status was dissolved. 2 
On appeal, based on the specific facts before us in this matter and based on a review of the entire 
record, we conclude that the petition was subject to automatic revocation. Accordingly, as the 
petition's approval remains automatically revoked, the appeal is effectively moot. 
ORDER: The appeal is dismissed as moot. 
1 USCIS regulations do not generally allow a beneficiary to appeal a petition's revocation. See 8 C.F.R. 
§ 103.3(a)(l )(iii)(B) (stating that a beneficiary is not an "affected party" with legal standing in a proceeding). However, 
ce1iain "portability-eligible" beneficiaries of revoked 1-140 visa petitions are treated as affected parties in revocation 
proceedings. Section 204(j) of the Act, 8 U.S.C. § l 154(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO 
Nov. 11, 2017). Under the portability provision of section 204(j) of the Act, approved petitions may remain valid under 
ce1iain conditions even after eligible beneficiaries change jobs or employers. A beneficiary of a valid visa petition, whose 
application for adjustment of status remains pending for at least 180 days, may "port" the petition to a new job if that job 
is in the same or similar occupational classification as the position offered in the petition. Here, the record demonstrates 
that the Appellant was employed with the Petitioner starting in July 2002. He filed an adjustment application on July 2, 
2007. In 2009, more than 180 days after filing that adjustment application, he notified USCIS that he sought to port to a 
new employer, and he later notified USCIS that he sought to port to a second new employer on July 1, 2012. Thus, the 
Appellant is an affected party in this case. 
2 See Mich. Dep't of Licensing & Regulatory Affairs, 
https://cofs.lara.state.mi.us/CorpWeb/CorpSearch/CorpSummary.aspxl 
(accessed Jun. 5, 2024). 
2