remanded EB-3 Case: Construction

'identifyingdata deleie~ to ,
preyentdearlyunw~ted
invasionof personalprtvaey
I. .' ,
PUBLICCopy
, "
u.s:Department of Homeland Security
20 Mass, Ave" N,W" Rm, 3000
Washington, DC 20529
u.s.Citizenship'
aild, Immigration
Services'
FILE:
EAC 02 099 51375
Office: VERMONT SERVICE CENTER Date: APR 2 3, Z007 '
INRE: Petitioner:
Beneficiary:
PETITION: Imrriigr~nt petition for Aliert Worker~s a'Skilled Worker or P~ofess,ional pursuant to section
203(b)(3) of the Immigration and Nationality Act, 8 U.S.c.§ 1153(b)(3)
ON BEHALF OF PETITIONER:
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.
~ .
Robert P. Wiemann, Chief.
. Administrative Appeals Office
,www.uscis.gov
Page 2"
DISCUSSION: The immigr<).ntvisa petition was initially approved by the Director, Vennont Service Center.
Subsequel1tto a, conviction of immigration fraud by counsel representing the petitioner, the director issued a
notice of illtent to revoke the petition's approval. The director revoked the petition's approval and the matter is
now b~fore the Administrative Appeals Office (MO) on appeal. The petition will be remanded to the director
for entry of a new decision. ., .
The petitioner is a construction corporation. It seeks to employ the beneficiary permanently in the United
'States as a construction-equipment mechanic. As required by statute, the petition is accompanied by a Form
ETA 750, Application for Alien Employment Certification, approved by the U. S. Department of Labor. On
Septeniber9, 2005, the director revoked the petition's approval since the petitioner did not respond to the
director's' notice of intent to revoke the petition's approval issued on March 24, 2005, addressed to the
petitioner that elicited, among other things, a verification from the petitioner that the labor certification
application was based upon a bonafide job offer. Since no response was received from the petitioner,! the
director revoked the petition's approval accordingl~.
Counsel filed a motion to reopen and reconsider with the director on September 22, 2005. That mOtlon
included an affidavit from the petitioner's owner explaining that the petitioner never received the notice of
intent to revoke. The motion has not been adjudicated
Counsel also filed the instant appeal with the AAO on September 22, 2005, with an explanatory statement.
Counsel indicated on the appellate Form 1-290B that he would send a brief and additional evidence within
thirtY(30) days. To date, the AAO has not received any additional cOI-respondencefrom counsel.
Both counsel in his explanatory statement, and the petitioner in his affidavit, maintain that the petitioner never
received notice of the director;s request for evidence issued on March 24, 2005. The petitioner maintains that
the petition and its accompanying labor certification are bonafide, and, that the September 9, 2005 decision to
revoke the ,instant 1-140 immigrant 'visa fails to .provide basic and sufficient information regarding the
revocation so that the petitioner can offer a response. Counsel states that the petitioner "is ready and willing
to fumishsufficient information or documentation necessary to rebut [Citizenship and Immigration Services'
(CIS)] findings." " '
'We note that the beneficiary irithe CIS Form G-325A signed on June 4,2004, stated that he was employed by the
petitiOIlersince January 2000, and, that the petitioner stated in his affidavit that it is employing the beneficiary
according to ~he terms of the labor certification.
While there is evidence in there cord that the notice of intent to revoke the petition's approval dated March 24,
2005, was sent to the petitioner at its business address, counsel has introduced additional evidence on appeal.
The reguI~tio~ at 8 C.F.R. '§ 103.5(a)(2) states in pertinent part:
!'The letter containing the request was sent to the petitioner at his address in Manassas, Virginia, and not to its
original counsel , since Mr is on the list of disciplined practitioners as maintained
by the U.S. Department of Justice, Executive Office for Immigration Review and ineligible to represent the
. petitioner in this' matter. During the pendency of these proceedings,' Mr. . 2' pled guilty to multiple
counts of labor and immigration fraud.
"
. Page 3
Requirements for motion to reopen. A motion· to reopen must state the new facts to be
provided in the reopened proceeding and be supported by. affidavits or other documentary
,evidence.
The instant motion does qualify as a motion to reopen. There are new facts presented here by counsel that related
to the petition, its. accompanying labor certification and supporting evidence. However, the director has not
adjudicated the motion and issued a substantive decision for the AAO to review. Therefore, the AAO will
remand the case to the director and the director can undertake any procedural mechanisms or request any
additional information or eviden~e necessary to make an additionald 7termination.
ORDER: The petition-is remanded to the director for entry ofa new decision, which if adverse to the petitioner,
will be certified to the AAO for review.