EB-1C-multinational execs--aao decisions posted to date in 2013
 

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March and April 2013 AAO Decisions for multinational exec/managers.

March and April 2013 AAO Decisions for multinational exec/managers.

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EB-1C-multinational execs--aao decisions posted to date in 2013 Document Transcript

  • 1. EB-1C Multinational Executives: AAO Non-Precedents Posted Thus Far in 2013 Compiled by Joseph P. Whalen (September 1, 2013) LINK TO DECISION RESULTS, EXCERPTS, &COMMENTS MAR092013_01B4203.pdf SUMMARILY DISMISSED [TSC] The petitioner is engaged in farming, consulting, and it seeks to employ the beneficiary as its Chief Executive Officer. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b) (1)(C), as a multinational executive or manager. On November 21, 2011, the director denied the petition concluding the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. * * * * * In regards to the director's conclusion that the petitioner failed to submit sufficient evidence to show the beneficiary's eligibility for the immigrant petition, counsel for the petitioner fails to identify erroneous conclusion of law or statement of fact for the appeal. The petitioner failed to provide any additional .......... [evidence]...[sic] to overcome the director's concerns. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 1
  • 2. On the Form I-290B, the petitioner the petitioner noted that USCIS approved an L-1A visa that had been previously filed on behalf of the beneficiary. The AAO acknowledges that USCIS has previously approved an L-1A petition filed by the petitioner on behalf of the instant beneficiary. It must be noted that many I-140 immigrant petitions are denied after USCIS approves prior nonimmigrant I-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103. Examining the consequences of an approved petition, there is a significant difference between a nonimmigrant L-1A visa classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. Cf. §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. Because USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, some nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. § 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an L-1A petition's validity). Despite the previously approved petition, USCIS does not have any authority to confer an immigration benefit when the petitioner fails to 2
  • 3. meet its burden of proof in a subsequent petition. See section 291 of the Act. Each petition filing is a separate· proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). Based on the lack of required evidence of eligibility in the current record, the AAO finds that the director was justified in departing from the previous nonimmigrant petition approval by denying the instant petition. As noted by counsel, a company's size alone, without taking into account the reasonable needs of the organization, may not be the determining factor in denying a visa to a multinational manager or executive. Section 10l(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44) (C). Instead, an executive's duties must be the critical factor. However' based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non- managerial administrative or operational duties. The petitioner's description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is actually non- managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). MAR092013_02B4203.pdf This case should be studied to see what NOT to do when preparing your evidence and APPEAL DISMISSED [TSC] The petitioner is a Florida corporation that is engaged in information technology consulting and 3
  • 4. especially the beneficiary’s job description. development, and seeks to employ the beneficiary as its President/ CEO. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. On May 15, 2012, the director denied the petition concluding that the petitioner failed to establish that the beneficiary's proposed employment with the U.S. entity would be within a qualifying managerial or executive capacity. * * * * * The issue that will be addressed in this proceeding calls for an analysis of the beneficiary's job duties. Specifically, the AAO will examine the record to determine whether the petitioner submitted sufficient evidence to establish that the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. * * * * * In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(1)(5). Published case law clearly supports the pivotal role of a clearly defined job description, as the actual duties themselves the true nature of the employment. Fedin Bros, Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff’d, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(1)(5). That being said, USCIS reviews the totality of the record, which includes not only the beneficiary's job description, but also takes into account the nature of the petitioner's business, the employment and remuneration of employees, as well as the job descriptions of the 4
  • 5. beneficiary's subordinates, if any, and facts contributing to a complete understanding of a beneficiary's actual role within a given entity. * * * * * Due to the overly general and vague list of job duties, the AAO is unable to gain a meaningful understanding of how much time the beneficiary will spend performing qualifying tasks versus those that would be deemed non-qualifying. The above case should be studied to see what NOT to do when preparing your evidence and especially the beneficiary’s job description. MAR092013_03B4203.pdf APPEAL DISMISSED [NSC] The petitioner is a California limited liability company that is engaged in agriculture, and seeks to employ the beneficiary as its vice president. Accordingly, the petitioner endeavors to classify beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or· manager. On August 23, 2011, the director denied the petition concluding that the petitioner failed to establish that the petitioner has a qualifying relationship with the beneficiary’s foreign employer. On appeal, counsel disputes the director's findings provides an appellate brief laying out the grounds for challenging the denial. 5
  • 6. * * * * * The language of the statute is specific in limiting this provision to only those executives and managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. A United States employer may file a petition on Form 1-140 for classification of an alien under section 203(b) (1)(C) of the Act as a multinational executive or manager. No labor certification is required for this classification. The prospective employer in the United States must furnish a job offer in the form of a statement which indicates that the alien is to be employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties to be performed by the alien. The issue that will be addressed in this proceeding is whether the petitioner submitted sufficient evidence to establish that it has a qualifying relationship with the beneficiary’s foreign employer. To establish a qualifying relationship under the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally § 203(b)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C); see also 8 C.F.R § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). * * * * * 6
  • 7. Although counsel claims that the petitioning company and the foreign company are both majority owned and controlled by [REDACTED & REDACTED] this familial relationship does not constitute a qualifying relationship under the regulations. See Ore v. Clinton, 675 F.Supp.2d 217, 226 (D.C. Mass. 2009) (finding that the petitioner and the foreign company did not qualify as "affiliates" "within the precise definition set out in the regulations at 8 C.F.R. § 214.2 (l)(1)(ii)(L)(1), despite petitioner's claims that the two companies "are owned and controlled by the same individuals, specifically the Ore family"). MAR092013_04B4203.pdf APPEAL DISMISSED [NSC] The petitioner claims to be a Florida corporation that seeks to employ the beneficiary in the United States a its president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. Among the documents that were submitted in support of the Form 1-140 was a statement dated September 29, 2008 and signed by [REDACTED] in her capacity as the company administrator. [REDACTED] stated that the petitioner had four employees, including the beneficiary, and described the petitioner's business as one involving the import and export of office supplies, printers, and copier parts. The petitioner also provided additional evidence in the form of corporate and business documents. 7
  • 8. The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. The director therefore issued a request for evidence (RFE) dated February 5, 2010 informing the petitioner of various evidentiary deficiencies. The RFE included requests for a more detailed job description pertaining to the beneficiary's proposed employment with a list of the beneficiary's job duties and their time allocations, the petitioner's organizational chart depicting the company's staffing structure and the beneficiary’s placement therein, and job descriptions of the beneficiary's subordinates in each entity. The petitioner was asked to support its statements with documentary evidence. The director also cautioned the petitioner to refrain from paraphrasing the statutory language in place of the beneficiary's job description and to provide specific examples of duties the beneficiary would perform that meet the statutory definition of managerial or executive capacity. The petitioner's response to the RFE included a statement' dated March 15, 2010 and signed by the petitioner's sales manager. The statement included an overview of the beneficiary's U.S. employment and job descriptions pertaining to the sales manager and administrator positions. The petitioner also provided a copy of its organizational chart from March 18, 2009 depicting a total of five employees-the beneficiary, an administrator, a secretary, a sales manager, and a sales person--as well as the petitioner's 2009 tax return showing $62,400 paid to the beneficiary in officer compensation and an additional $67,152 paid in employee wages and salaries. 8
  • 9. After considering the petitioner's response, the director determined that the petitioner failed to establish that the beneficiary would be employed with the U.S. entity in a qualifying managerial or executive capacity. The director found the beneficiary's job description to be lacking the detailed information that was requested in the RFE and further determined that a significant portion of the beneficiary's time would be allocated to tasks of a non-qualifying nature. In light of these adverse findings, the director issued a decision dated June 1, 2010 denying the petition. On appeal, counsel provides a brief in which he disputes the director's findings by reiterating information that was previously provided with regard to the beneficiary's job description and the job descriptions of the beneficiary's subordinates. Counsel points to the beneficiary's discretionary authority, senior position within the petitioner's organizational hierarchy, and his oversight of managerial and supervisory subordinates. The AAO finds that counsel's statements are not persuasive and thus fail to overcome the director’s findings. A comprehensive discussion of the AAO's findings is provided below. AAO dissection, discussion and analysis of the evidence continues for the next 2 1/2 pages. Please take the time to read it. 9
  • 10. MAR092013_05B4203.pdf APPEAL DISMISSED [TSC] The petitioner; an electronics import-export company, seeks to employ the beneficiary as its manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. On March 13, 2012 the director denied the petition concluding that the petitioner failed to establish: (1) that it will employ the beneficiary in a primarily managerial or executive capacity; and (2) that it has the ability to pay the beneficiary the proffered wage. On appeal, the petitioner asserts that the director substantially minimized and overlooked evidence establishing the beneficiary's and petitioner's eligibility, therefore the decision was incorrect. The petitioner submits a brief in support of the appeal. The Director found two reasons to deny but AAO found two more for a grand total of four reasons for denial. APR012013_01B4203.pdf APPEAL DISMISSED [NSC] The petitioner is a California limited· liability company that seeks to employ the beneficiary as managing director. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 10
  • 11. The petitioner states that it is engaged in sale and trade of automobiles and the food industry, and indicates that it has three employees. In support of the Form 1-140 the petitioner submitted a letter from counsel dated April 28, 2011 which provided some of the beneficiary's expected duties with the U.S. company. The petitioner also provided evidence in the form of corporate and financial documents pertaining to the beneficiary's foreign employer. There was an RFE with inadequate response, then on appeal additional evidence was submitted BUT.... During adjudication of the appeal, evidence came to light that the petitioner in this matter had a suspended corporate status in the State of California. Therefore, on January 8, 2013, the AAO notified the petitioner that a review of the petitioner's status at the business search website maintained by the California Secretary of State indicated that the petitioner was suspended.... This one is complicated but well worth taking the time to read for yourself. APR012013_02B4203.pdf MOTION DISMISSED [TSC] The petitioner is a Maryland corporation engaged in the business of international trade. It seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the 11
  • 12. Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition concluding that the petitioner failed to establish that the beneficiary would be employed in a managerial or executive capacity. The petitioner appealed the denial disputing the director’s findings. The AAO dismissed the appeal, rejecting prior counsel's reliance on the petitioner's previously approved nonimmigrant petition. The AAO provided a thorough analysis of the job description offered by prior counsel and found that counsel's statements lacked credible and detailed information about the beneficiary's actual daily job duties. The AAO also noted, beyond the decision of the director, that the petitioner failed to provide sufficient evidence to establish that: (1) the beneficiary was employed abroad in a qualifying managerial or executive capacity; and (2) the petitioner has a qualifying relationship with the beneficiary's prior employer abroad. On motion, the petitioner’s new counsel asks the AAO to consider new evidence which he claims will establish that the beneficiary's proposed position with the U.S. entity is in a qualifying managerial or executive capacity. Counsel offers the foreign entity's trade license as a means of establishing that the work the beneficiary performed abroad was also in a qualifying managerial or executive capacity. Counsel neither disputes nor addresses the AAO's adverse finding with regard to the lack of evidence showing a qualifying relationship 12
  • 13. between the petitioner and the beneficiary's foreign employer. Therefore, the petitioner effectively concedes to the AAO’s adverse finding on the issue of a qualifying relationship. Please read the rest of the decision for a discussion of what types of “new” evidence are prohibited from the agency’s consideration at the stage. APR012013_03B4203.pdf MOTION DISMISSED [TSC] DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service Center. Upon further review, a Notice of Intent to Revoke (NOIR) was issued and the approval of the petition. was ultimately revoked. The petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was dismissed. The matter is now before the AAO on motion to reopen and reconsider. The motion will be dismissed. The petitioner is a Texas corporation that seeks to employ the beneficiary in the United States as its president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The director revoked the approval of the visa petition based on four independent grounds of ineligibility. Specifically, the director found the petitioner failed to establish: (1) that the 13
  • 14. beneficiary's proposed employment with the U.S. entity would be in a qualifying managerial or executive capacity; (2) that the beneficiary's employment abroad was within a qualifying managerial or executive capacity; (3) the existence of a qualifying relationship with the foreign entity; and (4) that the foreign company continues to operate as a business abroad. On appeal, the AAO found that the petitioner failed to provide sufficient evidence to overcome the director's decision on any of the four independent grounds. Consequently, the AAO affirmed the director's findings and dismissed the appeal. * * * * * Upon review, the petitioner's submission does not meet the requirements of a motion to reopen or a motion to reconsider. APR012013_04B4203.pdf APPEAL DISMISSED [TSC] The petitioner is a [REDACTED] that seeks to employ the beneficiary as its director of business development. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The director denied the petition concluding that the petitioner did not establish it had the ability to pay the proffered wage. The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 14
  • 15. and forwarded the appeal to the AAO. On appeal, counsel submits additional documentation asserting that the petitioner has now demonstrated an ability to pay the proffered wage. Counsel provides a legal brief and additional evidence in support of the appeal. * * * * * Finally; on appeal, counsel for petitioner asserts that USCIS may consider evidence relevant to a petitioner's financial ability that falls outside of a petitioner's net income and net current assets citing Matter of Sonegawa, 12 I&N Dec. at 612 (Reg'l Comm'r. 1967). Therefore, petitioner submits documents reflecting current business levels and anticipated profitability for 2012. The petitioner indicates that it expects to increase profits, hire new personnel, and increase salaries of those currently employed. However, the petitioner is a small company offering documentation covering a very short period of time. A visa petition may riot be approved based on speculation of future eligibility ·or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm'r 1971). Further, the totality of the circumstances affecting the petitioning busi_ness will be considered if the evidence warrants such consideration. See Matter of Sonegawa, 12 I&N Dec. 612 (Reg. Comm'r 1967). In this matter, the evidence does not warrant such consideration. 15
  • 16. APR022013_01B4203.pdf APPEAL DISMISSED [NSC] The petitioner claims to be a California corporation that seeks to employ the beneficiary in the United States as its "CEO/CFO & Marketing Director." Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. * * * * * After considering the petitioner's response ...[to an RFE]..., the director determined that the petitioner failed to establish that the beneficiary would be employed in the United States iri a qualifying managerial or executive capacity. The director determined that the petitioner submitted a deficient job description lacking in adequate information about the beneficiary's actual daily tasks. The director also determined that the beneficiary would oversee the work of outside sales personnel, whom the director deemed as non-professional employees. The director incorporated his findings in a denial dated June 13, 2012. On appeal, counsel provides a brief disputing the director's adverse findings. Counsel asserts that the director placed undue emphasis on the size of the petitioner's staff while neglecting to consider the petitioner's reasonable needs as well as its overall purpose and stage of development. Counsel asserts that the beneficiary's position title does not incorporate the term manager, but rather that of director, claiming that the two terms are distinct. 16
  • 17. Counsel asserts that the director functions within an executive capacity where he allocates his time primarily to qualifying executive tasks. After having reviewed the record and considered counsel's statements on appeal, the AAO finds that counsel's assertions are not persuasive in overcoming the basis for denial. The discussion below will address points that are deemed relevant to the petitioner's burden of proof in this matter. The above highlighted sentence should have you clicking on the link by now. Get moving! APR022013_02B4203.pdf MOTION DISMISSED [TSC] DISCUSSION: The preference visa petition was initially approved by the Director, Vermont Service Center. Upon further review of the record, the Director, Texas Service Center, determined that the petitioner was not eligible for the benefit sought. Accordingly, the director properly served the petitioner with a notice of his intention to revoke the approval of the preference visa petition, and his reasons therefore. The director ultimately revoked the approval of the petition and the petitioner subsequently filed an appeal with the Administrative Appeals Office (AAO) where the appeal was summarily. dismissed. The matter is now before the AAO on motion to reopen. The AAO will dismiss the petitioner's motion. The petitioner claimed to be a wholesale, retail, and investment operation seeking to employ the beneficiary as its president. Accordingly, the 17
  • 18. petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)1I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The director revoked the petition, concluding that the petitioner failed to establish that: (1) the beneficiary was employed abroad in a qualifying managerial or executive capacity; (2) the beneficiary's proposed position with the U.S. entity would be in a managerial or executive capacity; and (3) the petitioner continues to do business in the United States. Additionally, as a result of the beneficiary's interview at the New York District Office, the director found that the petitioner submitted inconsistent evidence and thus concluded that the evidence was unreliable and insufficient for the purpose of establishing eligibility. AAO once again goes on to “school” counsel about basic MTR requirements and the meaning of the word “new”. APR022013_03B4203.pdf MOTION DISMISSED [NSC] The petitioner is 'a California corporation that seeks to employ the beneficiary as its vice president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. The director denied the petition concluding that the petitioner failed to establish that the beneficiary was employed in a managerial or executive capacity. 18
  • 19. The petitioner appealed the denial disputing the denial. The AAO dismissed the appeal affirming the director's original conclusion-that the petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive· capacity-and making three additional findings beyond the director's decision. First, the AAO concluded that the petitioner provided a deficient job description and organizational chart pertaining to the benefiCiary's proposed employment with the petitioning entity, thus failing to establish that the beneficiary would be employed in a qualifying managerial or executive capacity in her proposed pos1t10n. Second, the AAO concluded that the petitioner failed to provide evidence showing that the petitioner met the initial filing requirement specified at 8 C.F.R. § 204.5(j) (3)(i)(D), which requires the petitioner to establish that it had been doing business for at least one year prior to filing the Form I-140. And third, the AAO found that the petitioner failed to provide evidence of its continued business activity abroad, thus precluding an affirmative finding that the petitioner continues to fit the definition of a multinational organization. On motion to reopen, counsel attempts to overcome the grounds for the AAO's decision, offering a supplemental brief which contains an additional percentage breakdown pertaining to the beneficiary's employment with the foreign entity. as well as job descriptions of the beneficiary!s direct subordinates. Counsel also contends that the foreign entity continues to do business and that the petitioner had been doing business for the requisite one-year period prior to filing the Form 19
  • 20. I-140. Counsel offers non-binding and nonprecedent decisions in support of her assertions and asks the AAO to consider the following documents as new evidence: You will have to read the actual decision to parse the evidence considerations along with AAO. Doing so will only help you to avoid the same mistakes! APR022013_04B4203.pdf 2nd APPEAL REJECTED [NSC] The first motion was Summarily Dismissed and therefore, the Motion option is limited. This petition checked the wrong box! You only get ONE administrative appeal. After that it must be a Motion and then it must actually qualify as one. APR292013_01B4203.pdf 2nd APPEAL REJECTED [TSC] The petitioner seeks appellate review of the AAO's own decision. There is no statutory or regulatory provision that permits the petitioner to file more than one appeal before the AAO with regard to the same petition. See 8 C.F.R. § 103.3(a)(l)(ii). The authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland Security (DHS) pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107-296. See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. § 2.1 (2003). The AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect 20
  • 21. on February 28, 2003), with one exception- petitions for approval of schools under§ 214.3 are now the responsibility of Immigration and Customs Enforcement (ICE). The AAO does not exercise appellate jurisdiction over its own decisions. Accordingly, the appeal is not properly within the AAO's jurisdiction. 21