remanded EB-3 Case: Culinary

MATTER OF E-J-Y-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 26, 2018 
PETITlON: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a restaurant, sought to employ the Beneficiary as a Japanese cook. It requested her 
classification as a skilled worker under the third preference immigrant category. See Immigration and 
Nationality Act (the Act) section 203(b)(i), 8 U.S.C. § 1153(b)(i). This employment-based "EB-3" 
immigrant classification allows an employer to sponsor a foreign national for lawful permanent 
·resident status to work in a position that requires at least two years of training or experience. 
After first approving the petition, the Director of the Texas Service Center revoked' the petition's 
approval and invalidated the labor certification with a finding of fraud or willful misrepresentation of 
a material fact. The Director found that the Petitioner's shareholders were friends with the 
Beneficiary and her husband before the Form 1-140, Immigrant Petition for Alien Worker (1-140 
petition), was filed, and that this fact was not disclosed to the Department of Labor during the labor 
certification process or to U.S. Citizenship and Immigration Services (USCIS) when the 1-140 
petition was filed. Based on the "close relationship" between the Petitioner and the Beneficiary the 
Director concluded that a bona fide job opportunity did not exist for U.S. workers, as required by 
20 C.F.R. § 656.17. In accord with these findings the Director revoked the petition's approval on the 
grounds that no bona fide job opportunity existed and the petition was not supported by a valid labor 
certification. 
The Beneficiary filed a motion to reopen and a motion to reconsider, which the Director dismissed 
on the ground that the Beneficiary is not an "affected party" under 8 C.F .R. § 103.5(a)(l )(iii) and 
therefore not entitled to file the motion(s). 
The matter is now before us on the Beneficiary's appeal. Although normally not the case, under 
certain circumstances described below, a beneficiary may be considered to be an affected party in 
immigrant petition revocation proceedings. In this case because the Director did not determine the 
Beneficiary's eligibility to participate in the revocation proceedings, we will withdraw the Director's 
decision and remand this matter for further proceedings consistent with the following discussion. 
1 At any time before a beneficiary obtains lawful pennanent residence USCIS may revoke a petition·s approval for "good 
and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. A petition's erroneous approval may in and of itself 
justify its revocation. Matter of Ho, 19 l&N Dec. 582, 589 (BIA 1988). 
Matter of E-.1-Y-
I. WHETHER THE BENEFICIARY IS AN AFFECTED PARTY 
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, certain "portability-eligible" beneficiaries of revoked I-140 visa 
petitions are treated as affected parties in revocation proceedings. Section 2040) of the Act, 
8 U.S.C. § 1154G). See Matter <?f V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). 
Under the portability provision of section 204G) of the Act, approved petitions may remain valid 
under certain 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. Thus, even though the petitioner for the visa 
classification and its beneficiary are no longer in an empl(?yment relationship, the underlying petition 
may remain valid for purposes of the beneficiary's adjustment of status application. 
In Maller <?l V-S-Q- Inc., we held that "[b]eneficiaries of valid employment-based immigrant visa 
petitions who are eligible to chan.ge jobs or employers and who have properly requested to do so 
[under section 204(i)], are 'affected parties' under OHS regulations for purposes of revocation 
proceedings .... " Matter of V-S-G- Inc., Adopted Decision 2017-06 at *I. In this case, the 
Beneficiary first notified USCIS of a new job offer more than three years before the petition's 
approval was revoked. At the time of the revocation, which postdated the decision in Maller <?l 
V-S-G-; Inc., the Director did not, contrary to USC IS guidance, address the Beneficiary's prior 
request to port in order to determine whether the Beneficiary properly ported and could therefore be 
considered an affected party. See USCIS Policy Memorandum PM-602-0152, Guidance on Notice 
·10, and Standing.for. AC2 I Beneficiaries about 1-140 Approvals Being Revoked After i\1aller <?f V-S­
G- Inc. (Nov. I I, 2017), http://www.uscis.gov/laws/policy-memoranda. The Beneficiary again 
asserted her eligibility for portability in her motions to reopen and reconsider. 2 In adjudicating the 
motions, therefore, the Director should have determined whether the Beneficiary had properly ported 
and thus should be treated as an affected party in the revocation proceedings. However, in 
dismissing the Beneficiary's motions for lack of standing, the Director did not acknowledge or 
assess the Beneficiary's prior request to port. 
We will therefore withdraw the Director's decision and remand this matter. On remand, the Director 
should determine whether the Beneficiary properly ported under section 204(i) of the Act. This 
determination involves considering whether the Beneficiary's adjustment of status application had 
been pending for at least 180 days at the time of the request to port. See 8 C.f.R. § 245.25(a)(2). It 
also involves considering whether USCIS received sufficient notice of the Beneficiary's new job and 
whether the job is in "the same or similar occupational classification" as the position offered in the 
petition. Id.; see also USCIS Policy Memorandum PM-602-0152, supra. 
2 In her motion(s} the Beneficiary cited a letter requesting portability benefits that was submitted to USCIS in February 
2014 in conjunction w!th her adjustment of status application. 
2 
Matter of E-.1-Y-
If the Beneficiary is found to have properly ported, the Director will issue a new notice of intent to 
revoke (NOIR) to the Petitioner and the Beneficiary. If the Beneficiary did not properly port, the 
Director should issue a new NOIR to the Petitioner only. Upon receipt of a timely response(s) to a 
new NOIR, the Director should review the entire record and enter a new decision. 
II. CONCLUSION 
· Based on the foregoing discussion, we remand this matter to the Director to determine the 
Beneficiary's eligibility to participate in revocation proceedings as an affected party. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and for the entry of a new decision. 
If the Beneficiary is deemed to be an affected party, and the new decision is adverse, 
the new decision shall be certified to us for review. 
Cite as Maller of E-J-Y-. ID# 1810911 (AAO Nov. 26, 2018) 
3