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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").

U.S. Citizenship Non-Precedent Decision of the and … · 2016-11-19 · Non-Precedent Decision of the Administrative Appeals ... retroactively reinstate its corporate privileges

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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.

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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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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-directly­applicants-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 so­called "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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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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