remanded EB-3 Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 20474470 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Professional 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 21, 2022 
The Petitioner, a software developer, sought to employ the Beneficiary as a systems analyst. It filed 
Form I-140 seeking to classify the Beneficiary as a professional under the third preference immigrant 
category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. 
§ 1153(B)(3)(A)(ii). This employment-based "EB-3" immigrant classification allows a U.S. employer 
to sponsor a professional with a baccalaureate degree for lawful permanent resident status . 
The Director of the Texas Service Center approved the petition, but later revoked that approval on 
notice, under the provisions of section 205 of the Act, 8 U.S.C. § 1155, and 8 C.F.R. § 205 .2. The 
Director concluded that the petition had been approved in error . The Director determined that the 
Petitioner did not make a bona fide job offer, and that the Beneficiary does not meet the requirements 
for the offered position specified in the labor certification. 
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 concerning the Beneficiary's standing. 
ANALYSIS 
U.S. Citizenship and Immigration Services (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 204(j) of the Act, 8 U.S.C . § 1154(j). See Matter ofV-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 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 anew job if that job is in the same or asimilar occupational 
classification as the position offered in the petition. See 8 C.F.R. § 245 .25(a)(2)(i). Thus, even though 
the petitioner for the visa classification and its beneficiary are no longer in an employment relationship, 
the underlying petition may remain valid for purposes of the beneficiary's adjustment of status 
application. 
In order to be deemed an affected party in revocation proceedings, a beneficiary must have submitted 
to users a proper request to port to another employer. Beginning January 17, 2017, a request to port 
must be submitted on a Form I-485 Supplement J. 1 See 7 USCIS Policy Manual E.5(B)(l) and 
6 USCIS Policy ManualE. I 0(e), https://www.uscis.gov/policymanual; see also 8 e.F.R. § 245.25(a). 
A beneficiary's porting request is proper when it has been favorably reviewed by users before the 
issuance of a notice of intent to revoke (NOIR) or notice of revocation (NOR). See 6 USCIS Policy 
Manual, supra, at E.1 0(e). Thus, a beneficiary becomes an "affected party" with legal standing in a 
revocation proceeding when users makes a favorable detem1ination that the beneficiary is eligible 
to port. Id. 
In this case, the immigrant visa petition (Form I-140) was initially approved on December 8, 2007. 
The Beneficiary filed Form I-485, Application to Register Permanent Residence of Adjust Status, 
October 12, 2007. The adjustment application remains open and pending. The Director issued a NOIR 
July 23, 2020, addressing the notice to the petitioning employer. The Petitioner did not respond to the 
NOIR. Instead, the Beneficiary responded to the NOIR on October 22, 2020. His response included 
I-485 Supplement J. There is no indication that the Director has yet taken any action, favorable or 
otherwise, on the portability request. 
The Director revoked the approval of the petition on September 1 7, 2021. The Director concluded 
that the Beneficiary's comments during his adjustment interview establish that the job was not 
available to U.S. workers. The Director also concluded that the Beneficiary provided inconsistent 
information regarding his education, which called into question his eligibility for the position. 
The Director addressed the NOR to the petitioning employer. The Beneficiary filed a timely appeal 
of the revocation on October 5, 2021. 
The record shows that the Beneficiary submitted a request to port before the Director issued the NOR, 
and that his Form T-485 adjustment application had been pending well over 180 days before any of the 
porting requests were submitted. The Director made no determination whether the Beneficiary should 
be treated as an affected party in the revocation proceedings based on whether the Beneficiary was 
eligible to port, and whether he had properly requested to port. 
Therefore, we will remand this case for the Director to determine whether the Beneficiary was eligible 
to port and properly requested to port under section 204(j) of the Act. If the Director concludes that 
the Beneficiary should be deemed an affected party in accordance with users Policy Memorandum 
PM-602-0152, the Director shall issue a new NOIR to the Petitioner and the Beneficiary in accordance 
with the policy memorandum. 
Upon receipt of a timely response to a new NOIR, or the expiration of the response period, the Director 
shall review the entire record and enter a new decision. 
1 The official title is Form I-485 SupplementJ, Confirmation ofBonaFidc Job Offeror Request for Job Portability Under 
INA Section 204(j). 
2 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing decision and for the entry of a new decision. 
If the new decision is adverse, it shall be certified to us for review. 
3