remanded EB-3 Case: Automotive

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U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 27, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a car dealership, seeks to permanently employ the Beneficiary as a purchasing 
manager. It requests classification of the Beneficiary 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 worker with at 
least 2 years of training or experience for lawful permanent resident status. 
On August 26, 2008, the Director, Texas Service Center, approved the petition. After the Director 
did not receive a response to a notice of intent to revoke (NOIR), however, he revoked the petition's 
approval on June 12, 2012. The Director concluded that the Petitioner no longer conducted business 
and had not signed the Form I-140, Immigrant Petition for Alien Worker. 
The Director also denied the Petitioner's untimely motions to reopen and reconsider. The Petitioner 
asserted that U.S. Citizenship and Immigration Services (USCIS) mailed the NOIR to it at an 
incorrect address. The Director found that the Petitioner did not properly change its address of 
record or demonstrate that the delay in the filing of its motion to reopen was reasonable and beyond 
its control. 
The matter is now before us on de novo appellate review. Because USCIS did not mail the NOIR to 
the "last known address" of the Petitioner, we will withdraw the Director's decision on the motion to 
reopen, grant the motion, and remand the matter to h'im. 1 
1 The Petitioner also asks us to reopen the applications for adjustment of status on behalf of the Beneficiary and his 
spouse. See section 245 of the Act, 8 U.S.C. § 1255 (allowing eligible beneficiaries to apply for lawful permanent 
residence in the United States, rather than at U.S. consulates abroad). But we cannot consider the request because we 
Jacked appellate jurisdiction over the adjustment applications. See 8 C.F.R. § l03.5(a)(6) (limiting our appellate 
jurisdiction over motions to cases where the underlying denials were appealable to us); 8 C.F.R. § 245.2(a)(5)(ii) (stating 
that "[n]o appeal lies from a denial of an [adjustment] application by a director"). 
Matter of P-, Inc. 
I. LAW AND ANALYSIS 
A. Jurisdiction 
The Director found that the Petitioner stopped its business activities. We will therefore first consider 
our authority to decide this appeal. 
USCIS may revoke a petition's approval "at any time" for "good and sufficient cause." Section 205 
of the Act, 8 U.S.C. § 1155. Our jurisdiction over an appeal from a revocation decision, however, 
depends on the nature of the revocation. 
users must generally notify a petitioner of the agency's intention to revoke a petition's approval 
and give the petitioner an opportunity to respond. 8 C.F.R. § 205.2(b). We may consider an appeal 
from such a "revocation on notic~." See 8 C.F.R. § 103.1(f)(3)(iii)(D) (2002); Dep'tofHomeland 
Sec. Delegation No. 0150.1, § U (effective Mar. 1, 2003), available at, 
https://www.hsdl.org/?view&did=23475 (accessed Sept. 2, 2016) (granting us appellate jurisdiction 
over the matters described in former 8 C.F.R. § 103.1(f)(3)(iii)). 
But we lack appellate authority where the occurrence of certain circumstances described in 8 C.F.R. 
§ 205.1 revoke a petition's approval automatically. Matter ofZaidan, 19 I&N Dec. 297, 298 (BIA 
1985) (holding that the regulations do not provide for appeals from "automatic revocation" 
decisions). 
If a beneficiary has not yet obtained lawful permanent resident status, automatic revocation of an 
employment-based petition's approval occurs "[u]pon termination of the employer's business." 8 
C.F.R. § 205.1(a)(3)(iii)(D). For this purpose, the phrase "termination of the employer's business" 
means the stoppage of its business activities. Patel v. Johnson, 2 F. Supp. 3d 108, 119 (D. Mass. 
2014) (deferring to USCIS' definition of the phrase). 
In the instant case, the Petitioner is a Texas corporation. The record indicates that the Texas 
secretary of state forfeited the Petitioner's corporate status on July 24, 2009. See Tex. Tax Code § 
171.309 (allowing forfeiture of corporate privileges if a corporation does not file reports or taxes 
within a prescribed period). 
In part, the NOIR alleged that the forfeiture of the Petitioner's corporate status indicated its stoppage 
of business activities. Under Texas law, however, a corporation need not stop conducting business 
after its forfeiture. 
The forfeiture of a Texas corporation subjects its directors and officers to personal liability for debts 
incurred by the entity thereafter. Tex. Tax Code § 171.255(a). But a forfeited corporation may 
retroactively reinstate its corporate privileges under section 171.312 of the Texas Tax Code and 
retain its existence and ability to conduct business during the forfeiture period. See, e.g., Hinkle v. 
Adams, 74 S.W.3d 189, 193-94 (Tex.App. 2002) (holding that, after the forfeiture of its corporate 
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Matter of P-, Inc. 
privileges, a Texas medical corporation existed and treated patients because its later reinstatement 
retroactively cured its status "as though the forfeiture never existed"). 
Like the corporation in Hinkle, Texas records indicate that the Petitioner retroactively reinstated its 
corporate status on September 8, 2010.2 The Petitioner also submitted evidence of its current, valid 
corporate status. See Tex. Comptroller of Public Accounts, Taxable Entity Search, at 
https://mycpa.cpa.state.tx.us/coalcoaSearch.do (accessed Sept. 1, 2016) (indicating the Petitioner's 
"active" right to transact business in Texas). 
Thus, at the time of the NOIR's issuance on February 17, 2012 and contrary to the NOIR's assertion, 
the record indicates that the Petitioner had valid corporate status. Moreover, the record lacks 
evidence that the Petitioner's business activities have stopped since the, petition's approval. The 
Petitioner submitted evidence that it has continuously held a motor vehicle dealetship license in 
Texas since 1991. The record therefore does not support the automatic revocation ofthe petition's 
approval. See Rahman v. Napolitano, 814 F. Supp. 2d 1098, 1104-05 (W.D. Wash. 2011) (holding 
that USCIS improperly revoked petitions filed by a reinstated corporation during a period of 
corporate forfeiture). 
Because the record does not establish automatic revocation of the petition's approval, we have 
authority to consider this appeal. 
B. The Motions to Reopen and Reconsider 
A petitioner must generally file a motion within 33 days of a decision served by mail. 8 C.F.R. §§ 
103.5(a)(1)(i), 103.8(b) (requiring a petitioner to submit a motion within 30 days of a decision and 
adding 3 days when the decision is served by mail). USCIS 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." 8 C.F.R. § 103.5(a)(l)(i). 
In the instant case, the Petitioner's combined motions to reopen and reconsider the revocation of its 
petition were clearly untimely. The record indicates the Petitioner's filing of the motions on August 
28, 2015, more than 3 years after the Director revoked the petition's approval on June 12, 2012. 
Because the regulations do not allow USCIS to excuse the untimely filing of a motion to reconsider, 
the Director properly denied the Petitioner's motion to reconsider. If the record demonstrated a 
reasonable filing delay that was beyond the Petitioner's control, however, the Director could have 
excused the untimely filing of the motion to reopen. 
The Petitioner asserts that USCIS sent the NOIR to an incorrect address. The Petitioner claims that 
neither it nor prior counsel received notice of the revocation proceedings or an opportunity to 
respond to the NOIR. The Petitioner states that it did not learn of the revocation of the petition's 
2 Texas records also indicate that the Petitioner changed its name on the same date. 
3 
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(b)(6)
Matter of P-, Inc. 
approval until July 2015, after the Beneficiary received a decision on his adjustment application that 
mentioned the revocation and after current counsel received a response to a request for immigration 
records under the Freedom of Information Act. See 5 U.S.C. § 552 (requiring full or partial 
disclosure of information and documents controlled by the federal government). 
On March 2, 2012, USCIS electronic records indicate that the U.S. Postal Service returned the 
February 17, 2012, NOIR to USCIS as undeliverable. The records also indicate the return of the 
June 12, 2012, NOIR as undeliverable on June 27, 2012. 
If USCIS did not properly notify the Petitioner of the revocation proceedings as the Petitioner 
asserts, revocation of the petition's approval was invalid. See 8 C.P.R. § 205.2(b) (providing that 
non-automatic revocation of a petition's approval "will be made only on notice to the petitioner"). 
Improper notice would also establish the Petitioner's delay in filing its motion to reopen as 
reasonable and beyond its control. Thus, we must determine whether USCIS provided proper notice 
of the revocation proceedings. 
C. Notic~ to the Petitioner 
USCIS must notify a petitioner of the agency's intent to revoke a petition's approval by routine 
service. 8 C.P.R. § 205.2(b). "Routine service consists of mailing the notice by ordinary mail 
addressed to the affected party and his or her attorney or representative of record at his or her last 
known address." 8 C.P.R.§ 103.8(a)(1). 
In the instant case, USCIS mailed the NOIR to the Petitioner and prior counsel at counsel's address 
in Florida. The Form 1-140 and the accompanying ETA Form 9089, Application for 
Permanent Employment Certification (labor certification), stated that the Beneficiary would work in 
Texas. But the Form 1-140 listed the Petitioner's address as counsel's address in 
The Petitioner responded to a July 10, 2008, request for evidence (RFE) that USCIS mailed 
to the address. 
The Petitioner, however, notes that the stationery of prior counsel's August 7, 2008, cover letter on 
the RFE response stated a law firm with an address in Florida, indicating a change in 
counsel's address. Also, although counsel had not provided his home address, the Petitioner notes 
that USCIS mailed the petition approval notice on August 26, 2008 to counsel's residence, 
suggesting that USCIS knew that counsel no longer worked at the address. In addition, 
in connection with applications filed by the Beneficiary in 2009 and 2010, the Petitioner notes that 
counsel notified USC IS of other professional addresses of his. 
Because USCIS mailed the petition approval notice to prior counsel's home raddress in 2008 and 
counsel's filings in other matters in 2009 and 2010 provided other professional addresses for him, 
3 The labor certification also stated the Petitioner's address as Texas. 
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(b)(6)
Matter of P-, Inc. 
the Petitioner asserts that USCrS did not mail the NOrR in 2012 to the Petitioner and prior counsel at 
his "last known address" as required by regulation. 
The :Pirector found that prior counsel did not properly notify USers of his change of professional 
address. The stationery of counsel's cover letter on the RFE response contained a different address 
than listed on the Form r-140. But the Director found that the body of the letter did not state 
counsel's change of address or his affiliation with a new law firm. The Director also found that 
users need not search other petitions or applications for a petitioner's current address. 
The Director's findings are consistent with users policy. users generally requires legal 
representatives wishing to change their addresses of record to submit new Forms G-28, Notices of 
Entries of Appearance, for each pending petition or application. See USCrS, Filing Your Form G-
28, at https://www.uscis.gov/forms/filing-your-form-g-28#Legal (accessed Sept. 2, 2016). Attorneys 
who have changed address may also submit letters with lists of their cases to users offices where 
the filings are pending. !d. 4 As the Director found, the instant record does not indicate that, at the 
time of the RFE response or thereafter, prior counsel submitted a new Form G-28 or a letter to the 
Texas Service Center notifying USCIS of his new professional address. 
Because users mailed the petition's approval notice in 2008 to prior counsel's home address, 
however, we do not believe the agency's general policy applies to this matter. As previously 
indicated, the record does not indicate that counsel informed users of his home address. Thus, the 
record suggests that users learned that counsel no longer worked at his professional address listed 
on the Form I -140 and obtained his home address to ensure delivery of the original approval notice 
to him and the Petitioner. 
The record does not indicate that the postal service returned the petition's approval notice to users 
as undeliverable. Therefore, pursuant to the plain language of8 C.F.R. § 103.8(a)(1), prior counsel's 
home address was the "last known address" of the Petitioner. Thus, USCrS erred in mailing the 
NOrR in 2012 to counsel's professional address stated on the Form r-140. Rather, USers should 
have mailed the NOIR to counsel's home address in the last known address of the Petitioner. 
Thus, USCIS did not properly notify the Petitioner of the revocation proceedings or afford it an 
opportunity to respond to the NOIR. 
Citing Kurapati v. USCJS, 775 F.3d 1255 (11th Cir. 2014), the Petitioner asserts that USCIS should 
have also mailed the NOIR 
to the Beneficiary and his spouse. But the facts of Kurapati distinguish 
it from the instant case. 
4 
To combat potential immigration services scams, USCIS policy also discourages the listing of another person's address 
for a petitioner on a Form J-140. See USCIS, "USCJS to Mail Receipt and Approval Notices Directly to Applicants and 
Petitioners" (20 11) available at https://www. uscis.gov/news/alerts/uscis-mail-receipt-and-approval-notices-directly­
applicants-and-petitioners (accessed Sept. 2, 20 16). USCIS , however , has allowed nonimmigrant visa petitioners to 
substitute attorney addresses for their addresses on Forms I-129; Petitions for Nonimmigrant Workers, because many 
large employers prefer to centralize the immigration-related documents of their employees in one location . I d. 
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Matter of P-, Inc. 
In Kurapati, the U.S. Court of Appeals for the Eleventh Circuit held that a U.S. District Court has 
jurisdiction to consider whether users should have sent a notice of intent to revoke to a beneficiary 
and his spouse. Kurapati, 775 F.3d at 1262. The Eleventh Circuit did not rule that USCIS must 
notify a beneficiary and his spouse of revocation proceedings. 
Also, the beneficiary and his spouse in Kurapati were eligible to adjust their statuses under the so­
called "portability" provision. !d. at 1261; see section 2040) of the Act, 8 U.S.C. § 1 i54G) 
(requiri11g a petition to remain valid if a beneficiary's adjustment application remains unadjudicated 
for at least 180 days and the beneficiary switches to a new job that is in the same or similar 
occupational classification as the job stated in the petition). In the instant case, the record does not 
indicate the eligibility of the Beneficiary and his spouse for adjustment of status under section 
2040). Unlike in Kurapati, the record does not indicate that the Beneficiary switched to a new job 
that is in the same or similar occupational classification as the offered position of purchasing 
manager. 
Thus, we distinguish Kurapati from the instant case, finding only that USCIS did not properly notify 
the Petitioner of the revocation proceedings and give it an opportunity to respond. Pursuant to 8 
C.F.R. § 103.5(a)(1)(i), the record also establishes the Petitioner's delay in filing its motion to 
reopen as reasonable and beyond its control. Because the Director abused his discretion in denying 
the motion to reopen, we will withdraw his decision, grant the motion, and remand this matter for 
further proceedings. 
D. Additional Issues to be Addressed on Remand 
On remand, the Director may issue a new notice of intent to revoke, notifying the Petitioner of any 
potential grounds of revocation and affording it a reasonable opporturtity to respond. The following 
issues should be addressed on remand. 
1. Signatures,on the Form I-140 and Accompanying ETA Form 9089 
The regulations require a petitioner to sign its petition. See 8 C.F.R. § 103.2(a)(2) (stating that "[a]n 
applicant or petitioner must sign his or her benefit request"). 
As indicated in the original NOIR, the record indicates that the Petitioner did not sign the original 
Form I-140. Instead, the form is signed by prior counsel on behalf of the Petitioner's president and 
sole shareholder as "attorney in fact." In an affidavit submitted by the Petitioner with its motion to 
reopen, prior counsel stated that the Petitioner's president provided him with a written power of 
attorney authorizing him to sign the Form I-140. 
USCIS policy allows attorneys to sign petitions pursuant to a valid, written power of attorney. But 
the original power of attorney or a copy of it must accompany the benefit request. USCIS Interim 
Policy Memorandum PM-602-0134, Signatures on Paper Applications, Petitions, Requests and 
Other Documents Filed with USCIS, 6, June 7, 2016, https://www.uscis.gov/sites/default/files/ 
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Matter of P-, Inc. 
USCIS/Outreach/Draft%20Memorandum%20for%20Cornrnent/PED _ SignatureRequirementPM.pdf 
(accessed Sept. 2, 2016). 
In the instant case, the record does not include a written power of attorney or a copy of it to 
corroborate prior counsel's statement. The record therefore does not establish that the Petitioner 
signed the petition. 
In addition, an employer, foreign national, and an attorney must sign an original accompanying labor 
certification. See 20 C.F.R. 656.17(a)(l) (stating that USCIS "will not process petitions unless they 
are supported by an original certified ETA Form 9089 that has been signed by the employer, alien, 
attorney and/or agent"). The instant record indicates that the Petitioner, the Beneficiary, and 
counsel who prepared the labor certification did not sign the original ETA Form 9089. 
The record at the time of the petition's approval did not establish the required signatures on the 
petition or the accompanying labor certification. 
2. The Beneficiary's Possession of the Required Experience 
The record at the time of the petition's approval also did not establish the Beneficiary's possession 
of the required experience for the offered position. 
A petitioner must establish a beneficiary's possession of all the education, training, and experience 
specified on an accompanying labor certification by a petition's priority date. 8 C.F.R. §§ 
103.2(b)(l), (12); see also Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg'l 
Cornrn'r 1977); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
In evaluating a beneficiary's qualifications, we must examine the job offer portion of an 
accompanying labor certification to determine the minimum requirements of an offered position. 
We may neither ignore a term of the labor certification, nor impose additional requirements. See 
K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1009 (9th Cir. 1983); Madany v. Smith, 696 F.2d 
1008, 1012-13 (D.C. Cir. 1983); Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 
1, 3 (1st Cir. 1981). 
In the instant case, the petition's priority date is March 7, 2006, the date the U.S. Department of 
Labor (DOL) accepted the accompanying labor certification application for processing. See 8 C.F.R. 
§ 204.5(d). 
The accompanying labor certification states the minimum requirements of the offered position of 
purchasing manager as 48 months, or 4 years, of experience in the job offered.5 The labor 
certification does not require any education or training. 
5 The Form 1-140 identifies the offered position as purchasing manager. But the accompanying labor certification states 
the position's title as purchasing coordinator. · 
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(b)(6)
Matter of P-, Inc. 
On the labor certification, the Beneficiary claimed more than 7 years of full-time, qualifying 
experience. The Beneficiary stated his employment as/ chief executive officer (CEO) by 
in Brazil from February 25, 1991 to March 3, 1998. 
A petitioner must support a beneficiary's claimed qualifying experience with a letter from an 
employer. 8 C.F.R. § 204.5(1)(3)(ii)(A). The letter must provide the name, address, and title of the 
employer, and describe a beneficiary's experience. Id . · 
In the instant case, in response to the Director's RFE, the Petitioner submitted an affidavit of the 
Beneficiary. The af:(idavit states that the Beneficiary was the CEO and majority shareholder of 
from 1990 to 1998. The affidavit also states the Beneficiary's job duties during 
that time. 
The Beneficiary's affidavit is insufficient to establish his claimed qualifying experience. Because 
the Beneficiary is an interested party in these proceedings, his affidavit does not constitute objective, 
independent, reliable evidence of his possession of the required experience. 
The Petitioner also provided a letter from a man who stated that his variety television program in 
Brazil featured the Beneficiary and his company on a 1993 show. The letter appears to confirm that 
the Beneficiary served as CEO of in 1993. But the letter does not state the 
Beneficiary's length of employment by the company, his hours, or his duties. The letter therefore 
does not establish the Beneficiary's possession ofthe required experience. 
Also, the font of the second page of the letter, which contains a signature, differs from the font of the 
letter's first page. The different font sizes of the letter's pages suggest that the pages were printed at 
different times and that the signatory signed the second page without knowing the contents of the 
first page. 
In addition, the Petitioner submitted copies of corporate documents regarding 
The documents identify· the Beneficiary as a shareholder of the c~mpany. But the documents 
indicate the business' start date as February 5, 1992. If did not start operations 
until February 5, 1992, the record does not explain how the Beneficiary began working for the 
company on February 21, 1991, as stated on the labor certification, or from 1990 as he stated in his 
affidavit. · 
Further, during part of the Beneficiary's purported tenure at from 1990 to 
1998, his resume states his simultaneous employment by two other companies in Brazil. The resume 
states that the Beneficiary served as founder and CEO of from 
1980 to 1995 and of from 1985 to 1994. The record does not 
explain how the Beneficiary worked for three companies from 1990 to 1994 and two companies 
from 1994 to 1995. The simultaneous employment casts doubt on his possession of at least 4 years 
of full-time, qualifying experience at 
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Matter of P-, Inc. 
A petitioner bears the burden of establishing eligibility for a requested benefit. Section 291 of the 
Act; 8 U.S.C. § 1361. The instant Petitioner must therefore explain the discrepancies in the 
Beneficiary's claimed qualifying employment. See Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988) 
(requiring a petitioner to resolve inconsistencies of record by independent, objective evidence 
pointing to where the truth lies). 
For the foregoing reasons, the record at the time of the petition's approval did not establish the 
Beneficiary's possession of the required experience as specified on the accompanying labor, 
certification by the petition's priority date. 
II. CONCLUSION 
The Director properly denied the Petitioner's,motion to reconsider as untimely. But USCIS did not 
properly notify the Petitioner of the revocation proceedings at its last known address or give it an 
opportunity to respond to the NOIR. The record therefore establishes the Petitioner's delay in filiflg 
the motion to reopen as reasonable and beyond its control. We will therefore withdraw the 
, Director's decision on the motion to reopen, grant the motion, and remand the matter for further 
proceedings. 
·.On remand, the Director may issue a new notice of intent to revoke, notifying the Petitioner of the 
potential grounds of revocation stated in the foregoing opinion and affording it a reasonable 
opportunity to respond. The Director may also notify the Petitioner of any other potential grounds of 
revocation he may identify. 
ORDER: The decision of the Director, Texas Service Center, is withdrawn. The matter is 
remanded to the Director for further proceedings consistent with the foregoing opinion 
and for the entry of a new decision. 
Cite as Matter of P-, Inc., ID# 79524 (AAO Oct. 27, 2016) 
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