remanded EB-3 Case: Culinary

U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwmted 
invasion of personal privacy 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: Office: TEXAS SERVICE CENTER Date: HAY 1 6 20@ 
SRC 00 072 5 1676 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 11 53(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, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The immigrant visa petition approval was revoked by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The petition will be remanded to the 
director for entry of a new decision. 
The petitioner is a restaurant. It seeks to employ the beneficiary permanently in the United States as a 
specialty cook - Italian food. 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 October 
29, 2004, the director revoked the petition based upon the determination of the United States Citizenship and 
Immigration Services (CIS) that the beneficiary is ineligible for the classification sought based on the 
beneficiary's fraudulent marriage to a United States citizen and revoked the petition approval pursuant to 
section 204(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 154(c). 
On appeal, counsel submits a legal brief and additional evidence. 
Counsel submitted a Form I-290B appeal in this matter. In the section reserved for the basis of the appeal, 
counsel states that: 
Beneficiary . . . maintains that he never got notice of the January 8, 1990, denial of Petition for 
Alien Relative. Beneficiary maintains that his marriage was not a sham or fraudulent marriage 
and that he lived with his US citizen petitioning spouse. The October 29, 2004 decision to 
revoke the instant 1-140 immigrant visa fails to provide basic and sufficient information 
regarding the January 8, 1990 denial of Petition for Alien Relative, which serves as the sole basis 
to revoke the I- 140 Immigrant visa. 
As is evident from the above statement upon appeal, the petitioner and the beneficiary are denying the finding 
of the director that in a previous case' that the beneficiary entered into a fraudulent marriage to a United 
States citizen. 
The Section 204(c) of the Act states: 
Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the 
alien has previously been accorded, or has sought to be accorded, an immediate relative or 
preference status as the spouse of a citizen of the United States or the spouse of an alien 
lawfully admitted for permanent residence, by reason of a marriage determined by the 
Attorney General to have been entered into for the purpose of evading the immigration 
laws or (2) the Attorney General has determined that the alien has attempted or conspired to 
enter into a marriage for the purpose of evading the immigration laws. 
The regulation 8 C.F.R. 3 204.2(a)(l)(ii) states in pertinent part: 
Fraudulent marriage prohibition. Section 1040 of the Act prohibits the approval of a visa 
petition filed on behalf of an alien who has attempted or conspired to enter into a marriage 
for the purpose of evading the immigration laws. The Director will deny a petition for 
immigrant visa classification filed on behalf of any alien whom there is substantial and 
probative evidence of such an attempt or conspiracy, regardless of whether that alien 
received a benefit through the attempt or conspiracy. Although it is not necessary that the 
CIS identification number SRC 00 072 5 1676. 
Page 3 
alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the 
evidence of the attempt or conspiracy must be contained in the alien's file. 
According to the record of ~roceedina in this matter. on November 27. 1987. a Form 1-130 petition was filed 
w 
by a U.S. citizen spouse, for the subject beneficiary, and, thereaftir, the 
filed a Form 1-485 Application to Register Permanent Residence or Adjust Status on February 26, 1988. 
- and the beneficiary appeared for an interview that in part, inquired into the bonafides of their 
marriage. Because of discrepancies in testimonies that arose in the interviews of the parties, the director 
denied the marriage based 1-1 30 petition on January 8, 1990. According to the record of proceeding, copies 
of the denial of the petition were sent to the petitioner-, and her attorney Kenneth Panzer. No 
appeal was filed of the decision to deny the petition. Thereafter, on March 29, 1990, the director issued a 
denial of the Application to Register Permanent Residence or to Adjust Status, since the 1-130 petition was 
denied, and, notices were sent to the beneficiary and his attorney Kenneth Panzer on the same date. No 
appeal was filed of the decision to deny the Application to Register Permanent Residence or to Adjust Status. 
On November 5, 1990, the beneficiary divorced the petitioner, 
On January 14, 1998, th 
 c. filed an employment based immigrant visa petition 
(I- 140) for the beneficiary 
 . On March 7,2000, the director approved the petition. On June 7,2000, 
the beneficiary filed a Form 1-485 for Application to Register Permanent Resident. Thereafter, a decision to 
revoke the approved employment based immigrant petition was issued October 29, 2004, based upon the 
finding that the beneficiary entered into a marriage for the purposes of evading the immigration laws. The 
petitioner appealed the revocation. 
All the above-mentioned petitions proceeding information is contained within the record of proceeding in this 
matter, and, it was available to the director in making his present determination. 
Counsel's statements on appeal, and in the brief that followed contend the following: the director's decision does 
not contain sufficient information concerning the denial of the petition for Alien Relative on the basis of fraud 
under INA 204(c); approximately 240 pages of information were released to the petitioner upon its Freedom of 
Information (FOIA) request, but some information was withheld; the records released do not show the denial of 
the marriage based petition; the records released do not show evidence of the denial for fraud; the beneficiary did 
not receive notice of the denial of the marriage based petition until October 29, 2004; that the "automatic 
revocation" of the approved Form I- 140 petition pursuant to the regulation at 8 C.F.R. 5 205. l (a), et seq. was not 
supported by regulations; and, that a notice of intent to revoke was required. 
The regulations at 8 C.F.R. 5 205.2 entitled "Revocation On Notice" states in pertinent part: 
(a) General. Any Service officer authorized to approve a petition under section 204 of the Act 
may revoke the approval of that petition upon notice to the petitioner on any ground other than 
those specified in 205.1 when the necessity for the revocation comes to the attention of this 
Service. 
(b) Notice of intent. Revocation of the approval of a petition or self-petition under paragraph (a) 
of this section will be made only on notice to the petitioner or self-petitioner. The petitioner or 
self-petitioner must be given the opportunity to offer evidence in support of the petition or self- 
Page 4 
petition and in opposition to the grounds alleged for revocation of the approval. (Revised 
3/26/96; 61 FR 13061) 
(c) Notification of revocation. If, upon reconsideration, the approval previously granted is 
revoked, the director shall provide the petitioner or the self-petitioner with a written notification 
of the decision that explains the specific reasons for the revocation. The director shall notify the 
consular officer having jurisdiction over the visa application, if applicable, of the revocation of 
an approval. 
(d) Appeals. The petitioner or self-petitioner may appeal the decision to revoke the approval 
within 15 days after the service of notice of the revocation. The appeal must be filed as provided 
in part 3 of this chapter, unless the Associate Commissioner for Examinations exercises appellate 
jurisdiction over the revocation under part 103 of this chapter. Appeals filed with the Associate 
Commissioner for Examinations must meet the requirements of part 103 of this chapter. (Added 
3/26/96; 61 FR 13061). 
No notice of intent to revoke the petition was issued by the director in this case according to the record of 
proceeding. Therefore, the petition will be remanded so the director can pursue revocation in accordance with the 
procedures according to the regulation at 8 C.F.R. tj 205.2. 
The AAO will remand the case to the director and the director can undertake any procedural mechanisms or 
request any additional information or evidence necessary to make an additional determination. 
ORDER: The petition is remanded to the director for entry of a new decision.