dismissed EB-1C Case: Business Management

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3042 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of pnonal privacy 
PUBLIC COPY 
U. S. Citizenship 
and Immigration 
B 
Office: VERMONT SERVICE CENTER 
 Date: WAR 3 1 ;l~h 
EAC 01 214 50012 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
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Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
-.. 
 -27 -- 
-.-- 
c: 
" 4-4' 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, revoked approval of the preference immigrant visa 
petition. The petitioner subsequently appealed that decision 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 to reopen will be dismissed. While the AAO will grant the petitioner's motion to reconsider, the 
underlying decision dismissing the appeal will be affirmed. 
The petitioner is a New Jersey corporation established in June 1997. It 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)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C), as a multinational executive or manager. The director revoked approval of the visa petition 
based on the determination that the petitioner had failed to submit evidence in rebuttal to the notice of intent 
to revoke within the given 30-day time frame. 
The petitioner subsequently appealed the director's decision, disputing the propriety of the overall decision as 
well as the director's choice not to consider evidence, which the petitioner submitted beyond the 30 days 
allotted by the director in the notice of intent to revoke. 
The AAO addressed specific deficiencies in the director's decision and considered the untimely-submitted 
evidence before issuing the final decision to dismiss the appeal and uphold the director's decision to revoke 
the approval of the petition. 
On motion, the petitioner asserts that neither the director's revocation, nor the AAO's decision to dismiss the 
appeal is supported by statutory or precedent case law. 
The regulations at 8 C.F.R. 5 103.5(a)(2) state, in pertinent part, that a motion to reopen must state the new 
facts to be provided in the reopened proceeding and be supported by affidavits or other documentary 
evidence. 
In the instant matter, the petitioner made no indication that new facts would be presented. Therefore, the 
motion to reopen will be dismissed in accordance with 8 C.F.R. 5 103.5(a)(4), which states, in pertinent part, 
that a motion that does not meet applicable requirements shall be dismissed. 
The regulations at 8 C.F.R. 5 103.5(a)(3) state, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or CIS policy. A motion to reconsider a decision on an application or 
I 
 It is noted for the record that, although the petitioner initially requests in July 2005 that the AAO reopen and reconsider 
its prior decision, the additional supporting documents submitted in September 2005 make no mention of either a motion 
to reopen or a motion to reconsider. Instead, it appears as if the petitioner is now seeking to file a second appeal, which 
is not provided for under the regulations. See 8 C.F.R. § 103.3. However, instead of rejecting the appeal, the AAO in its 
discretion will review the submissions in light of the original request, filed as a motion to reopen and reconsider its prior 
decision in this matter. 
Page 3 
petition must, when filed, also establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 
Additionally, 8 C.F.R. $ 103.5(a)(l)(i) states, in part, "[Wlhen the affected party files a motion, the official 
having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision." 
(emphasis added). 
In the instant matter, the "prior decision" was that of the AAO dismissing the petitioner's appeal. Id. Thus, 
any portion of the petitioner's brief in support of the motion that questions the propriety of the director's 
decisions to first issue the notice of intent to revoke (NOIR) and subsequently the final notice of revocation 
will not be addressed in the present decision, as the appropriate time to raise these issues would have been on 
appeal. The only issues the AAO has jurisdiction to consider on motion are those directly dealing with the 
AAO's own prior decision, which in the instant matter is the AAO's decision dismissing the petitioner's 
appeal. The only proper venue to raise a motion to reopen or reconsider the director's decision is with the 
service center that issued the revocation. See 8 C.F.R. $ 103.5(a)(l)(i). 
With regard to the AAO's decision dismissing the appeal, counsel2 asserts that the AAO erred in stating that 
the "ultimate burden" in overcoming a notice of revocation is on the petitioner. However, in proceedings to 
revoke the approval of a visa petition, the burden of proof to establish eligibility for the benefit sought is on 
the petitioner. Id. at 589; Matter of Cheung, 12 I&N Dec. 715 (BIA 1968); see also Matter of Brantigan, 11 
I&N Dec. 493 (BIA 1966). The Board's decision in Matter of Ho is also relevant to this matter in clarifying 
that, by itself, the director's realization that a petition was incorrectly approved is good and sufficient cause 
for the issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. 582, 590 
(BIA 1988). 
Counsel also questions the AAO's right to raise the issues of the beneficiary's employment abroad and in the 
United States, stating that both had been considered by CIS prior to the issuance of the petitioner's L-1A 
nonimmigrant visa. Counsel asserts that raising issues that were previously considered is synonymous with 
readjudicating the entire matter, which counsel claims is against CIS policy and regulations. However, it 
should be noted that, in general, given the permanent nature of the benefit sought, immigrant petitions are 
given far greater scrutiny by CIS than nonirnrnigrant petitions. The AAO acknowledges that both the 
immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and executive 
capacity. See $5 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1101(a)(44). Although the statutory definitions 
for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonirnrnigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant visa petition, which pennits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
2 
 Although the petition is accompanied by a Form G-28, Notice of Entry of Appearance by an Attorney or 
Representative, the claimed attorneylrepresentative in this matter has not established that he or she is a licensed attorney 
or an accredited representative authorized to undertake representations on the petitioner's behalf. See 8 C.F.R. § 292.1. 
In fact, the individual only indicates on Form G-28 that he or she is a member of the High Court of Maharashtra and 
Goa. Accordingly, the foreign attorney's appearance will not be recognized, and the assertions made by the foreign 
attorney will not be given any weight in this proceeding. 
Page 4 
as a United States citizen. Cj 9s 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see (llso 4 316 of the 
Act, 8 U.S.C. 4 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. S, 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing Form 1-129 nonimmigrant petitions than 
Form 1-140 immigrant petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30 (recognizing that CIS approves some petitions in error). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texus A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
immigrant petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Clz~trch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Eng~ Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
 In this matter, 
however, U.S. Citizenship and Immigration Services (CIS) records indicate that only the petitioner's new 
office petition filed on behalf of the beneficiary was approved (EAC 97 229 53676). The subsequent new 
office extension petition filed by the petitioner on behalf of the beneficiary was denied (EAC 99 053 5069 1). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharnzonic Orckestrc~ v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied. 122 S.Ct. 5 1 (2001). 
Additionally, counsel's point that revoking a prior approval is synonymous with readjudication is without 
merit. Based on counsel's interpretation of the law, any petitioner with an approved nonimmigrant petition 
would have an irrevocable right to file and be automatically granted an 1-140 immigrant petition; similarly, 
any approved 1-140 immigrant petition would automatically become irrevocable by virtue of having been 
granted based on the assumption that all relevant issues had been decided prior to issuing an approval of the 
petition. 
Counsel's assertion is erroneous and is contradicted by both statute and precedent case law. Section 205 of 
the Act, 8 U.S.C. 9 1155, states: "The Attorney General may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 204." 
Page 5 
Counsel also draws the AAO's attention to a recent opinion issued by the United States Court of Appeals for 
the Second Circuit, Firstland Int'l, Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004). In that opinion, the court in 
Firstland interpreted the third and fourth sentence of section 205 of the Act, 8 U.S.C. 5 1155 (2003), to render 
the revocation of an approved immigrant petition ineffective where the beneficiary of the petition did not 
receive notice of the revocation before beginning his journey to the United States. Firstland, 377 F.3d at 130. 
Counsel seemingly suggests that the reasoning of this opinion must be applied to the present matter and 
accordingly, CIS may not revoke the approval because the beneficiary did not receive notice of the revocation 
before departing for the United States, since he was already in the United States when the director issued the 
revocation. 
According to the Form G-28 submitted on appeal, the petitioner lives in Edison, New Jersey; thus, this case 
did arise in the Second Circuit. In fact, even if this case did arise in the Second Circuit, Firstland is no longer 
a binding precedent.3 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to this matter, section 
5304(c) of Public Law 108-458 amends section 205 of the Act by striking "Attorney General" and inserting 
"Secretary of Homeland Security" and by striking the final two sentences. Section 205 of the Act now reads: 
The Secretary of Homeland Security may, at any time, for what he deems to be good and 
sufficient cause, revoke the approval of any petition approved by him under section 1154 of 
this title. Such revocation shall be effective as of the date of approval of any such petition. 
Furthermore, section 5304(d) of Public Law 108-458 provides that the amendment made by section 5304(c) 
took effect on the date of enactment and that the amended version of section 205 applies to revocations under 
section 205 of the Act made before, on, or after such date. Accordingly, the amended statute specifically 
applies to the present matter and counsel's Firstland argument no longer has merit. 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
3 
 The Firstland opinion summarily overturned 35 years of established agency precedent. See Matter of Vilos, 12 I&N 
Dec. 61 (BIA 1967). Counsel's arguments illustrate the illogical effects of the Second Circuit's reasoning: In the present 
matter, the beneficiary entered the United States as a nonimmigrant in February 1997, over six years prior to the filing of 
the Form 1-140 immigrant petition and more than six years prior to the revocation of the petition's approval. 
Accordingly, it was physically impossible for CIS to have notified the beneficiary of the revocation before he departed 
for the United States. In effect, thi's interpretation of Firstland would have created a situation where any alien would 
have an irrevocable immigrant visa petition if the alien simply waited until after he or she arrived in the United States to 
file the petition. 
Page 6 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. at 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
Additionally, the Board of Immigration Appeals has held that the approval of a visa petition vests no rights in 
the beneficiary of the petition, as approval of a visa petition is but a preliminary step in the visa application 
process; the beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Matter of Ho, 
19 I&N Dec. 582. 
Despite counsel's insistence that the AAO heed the instruction of certain service memorandum and prior 
unpublished AAO decisions, neither can be deemed official CIS policy or published precedent case law. See 
Memorandum from Thomas Cook, Acting Associate Commissioner, Office of Programs, Sign$cance of 
Letters Drafted by the Ofice of Adjudications (December 7, 2000); see also 8 C.F.R. 5 103.3(c). As such, 
neither of these sources is binding on the AAO. 
Counsel continues his argument, claiming that the AAO has no right to bring up issues of ineligibility that had 
not been previously introduced in regard to the present 1-140 petition. However, an application or petition 
that fails to comply with the technical requirements of the law may be denied by the AAO even if the Service 
Center does not identify all of the grounds for denial in the initial decision. See Spencer Entelprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003); see also Dor 
v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
Finally, counsel addresses the issue of legislative intent, claiming that one of the main reasons for enacting 
the Immigration Act of 1990 was to liberalize the provisions and requirements for intracompany transferees 
and multinational managers and executives. While counsel may be correct, nothing speaks clearer of 
legislative intent than the previously noted section 205 of the Act, which bestows upon the Attorney General, 
and consequently CIS, the broad power to determine what constitutes "good and sufficient cause" for 
revoking an approval of an 1-140 immigrant petition. While Congress may have been concerned with 
liberalizing United States policies with regard to granting immigrant and nonimmigrant visas to multinational 
managers and executives as well as intracompany transferees, respectively, there is no indication that 
Congress was willing to overlook the statutes and regulations used to filter out those petitioners that are 
clearly ineligible for these immigration benefits. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. 
ORDER: 
 The AAO's decision dismissing the appeal is affirmed.