Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(2)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. Thank you,
Ron Rosenberg
Acting Chief, Administrative Appeals Office www.uscis.gov
DISCUSSION: The Director, Nebraska Service Center, initially approved the hnmigrant Petition for Alien Worker (Form I-140) on June 12, 2006. On further review of the record, the director determined that the petition was not eligible for approval. The director served the petitioner with notice of intent to revoke the approval of the preference visa petition. The director subsequently revoked approval of the petition on September 12, 2012. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected pursuant to 8 C.F.R. § 103.3(a)(2)(v)(A)(l).
The petitioner describes itself as a software development and consulting firm. It sought to permanently employ the beneficiary in the United States as a software engineer. The petitioner requested classification of the beneficiary as a member of the professions holding an advanced degree pursuant to section 203(b )(2) of the hnmigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(2). As required by statute the petition was accompanied by an ETA Form 9089, Application for Permanent Employment Certification, approved by the United States Department of Labor (DOL). The Form I-140 was initially approved on June 12, 2006. Upon subsequent review, the director determined that the petition did not merit approval and sent an Intent to Revoke to the petitioner on July 5, 2012, summarizing his concerns pertinent to the bona fides of the Form I-140. The petitioner was allowed 30 (thirty) days to respond to this notice with additional evidence and argument. No response was received from the petitioner. 1 The director revoked the petition's approval on September 12, 2012. An appeal was filed by the beneficiary through his counsel as indicated by a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, as the beneficiary's representative. Counsel states that the beneficiary must be allowed standing to file an appeal or else would be deprived of any opportunity to avail himself of the statutory benefits derived from section 204G) of the Act; 8 U.S.C. § 154Q), as amended by section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21 ").Z' 3
Counsel's assertion is not persuasive. The regulation at 8 C.F.R. § 103.3(a)(1)(iii) specifically states in pertinent part:
(B) For the purposes of this part, affected party (in addition to the Service) means the person or entity with legal standing in a proceeding. It does not include the beneficiary of a visa petition. (emphasis added)
Further, the regulation at 8 C.P.R. § 103.3(a)(2)(v)(A)(l) states; "An appeal filed by a person or entity not entitled to file it must be rejected as improperly filed." Based on the foregoing, a beneficiary of a visa petition, or a representative acting on a beneficiary's behalf, is prohibited from filing an appeal. As the appeal was not properly filed, it will be rejected. 8 C.F.R. § 103.3(a)(2)(v)(A)(1). ORDER: The appeal is rejected.