dismissed EB-1C Case: Business Management

identifiing !:?at3 deleted to 
prevent clr;,i-lg. ii lwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofldrninistrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reopen or reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
\ 1 Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner subsequently filed a motion to reconsider, which the director granted and subsequently issued a new 
decision affirming the prior findings. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner is a Colorado limited liability company that seeks to employ the beneficiary as its shop 
director. 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 determined that the petitioner no longer has a 
qualifying relationship with the beneficiary's foreign employer and that the beneficiary is therefore ineligible 
for the immigration benefit sought in the present matter. 
On appeal, counsel disputes the director's conclusion and submits a brief in support of her assertions. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
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)(l)(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 primary issue in this proceeding is whether the petitioner has the requisite qualifying relationship with the 
foreign entity that previously employed the beneficiary. 
The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: 
Affiliate means: 
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(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
*** 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In support of the Form 1-140, the petitioner provided a letter dated August 14, 2007, which explained that 
the beneficiary's employer in Canada, and the U.S. entity that 
seeks to currently employ the beneficiary as a multinational manager or executive were affiliates by virtue of 
being among a group of companies that were owned by - However, the petitioner also 
stated that the Canadian entity that employed the beneficiary abroad "ceased business operations in October 
2005." The petitioner further stated that it continues to conduct business abroad through a different Canadian 
affiliate entity. 
On August 1, 2008, the director issued a request for evidence (RFE) in which he instructed the petitioner to 
submit inter alia evidence that the beneficiary's foreign and proposed U.S. employers had a qualifying 
relationship as of the date the Form 1-140 was filed, that a qualifying relationship continues to exist between 
the two entities, and that the beneficiary's foreign employer continues to do business. 
In response, counsel submitted a letter dated September 10,2008 in which she expressly stated that the entity 
that employed the beneficiary abroad ceased operations prior to the date the petitioner filed the Form 1-140. 
However, counsel maintained that the petitioner is nevertheless eligible for the immigration benefit it is 
currently seeking based on its continued business operations abroad via entities other than the one that 
previously employed the beneficiary. Counsel also referenced a letter dated November 17, 1992 from- 
asserting that the letter supports 
counsel's interpretation of the regulations. 
The director did not find counsel's reasoning to be persuasive and denied the petition in a decision that was 
issued on September 30, 2008. The director restated the provisions of 8 C.F.R. 5 204.5(j)(3)(i)(C), finding 
that the word "is" implies that the petitioner bears the burden of establishing the continued operation of the 
beneficiary's foreign employer at the time fhe Form 1-140 is filed. The director determined that in light of the 
fact that the beneficiary's Canadian employer ceased its business operations prior to the time the Form 1-140 
was filed, the petitioner did not meet the provisions of 8 C.F.R. § 204.5(j)(3)(i)(C). 
On December 17, 2008, the director reaffirmed his prior findings in a decision that was issued in response to 
the petitioner's motion to reconsider. The director referred to the nonimmigrant L-1A visa category, finding 
its requirements to be different from those pertaining to the immigrant visa petition filed in the present matter. 
Specifically, the director stated that unlike the provisions pertaining to the L-I A nonimmigrant visa category, 
which does not render a beneficiary ineligible for L-IA classification even when hislher foreign employer has 
been sold or dissolved so long as the petitioner continues to do business abroad, the eligibility requirements 
for the immigrant classification sought herein are different in that they require the U.S. petitioner to maintain 
a qualifying relationship with the beneficiary's foreign employer up through and continuing beyond the date 
of filing. 
On appeal, counsel asserts that rather than focusing on the word "is," proper emphasis must be placed on the 
word "entity" when interpreting 8 C.F.R. 9 204.56)(3)(i)(C), which states "[tlhe prospective employer in the 
United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity 
by which the alien was employed overseas." Counsel points out that the petitioner, the beneficiary's foreign 
employer, and a third foreign entity that continues to exist are all part of a corporate structure that 
encompasses numerous affiliate entities. Counsel asserts that the continued operation of the beneficiary's 
foreign employer is not specifically required so long as the petitioner continues to do business abroad through 
another foreign subsidiary or affiliate. Counsel also contends that the business operations of the beneficiary's 
foreign employer "are being streamlined and absorbed by the other operational entities" and that as a result 
the foreign employer continues to operate and expand. 
In reviewing counsel's arguments and the director's findings with regard thereto, the AAO finds that the 
director's determination was properly made and need not be withdrawn. 
First, counsel's emphasis on the term "entity" is misplaced. Counsel appears to confuse the issue of the 
continued existence of the beneficiary's employer abroad, with the separate issue of whether the "qualifying 
entity, or its affiliate, or subsidiary, conducts business in two or more countries, one of which is the United 
States." 8 C.F.R. !j 204.56)(2) (definition of "Multinational"). 
In this matter, it is recognized that the petitioner continues to conduct business in two or more countries, one 
of which is the United States. However, the issue here is not whether the petitioner meets the definition of 
multinational under 8 C.F.R. tj 204.56)(2), but whether it maintained (at the time the petition was filed) and 
continues to maintain a qualifying relationship with the separate legal entity that employed the beneficiary 
abroad. The current regulations expressly state that the petitioner must establish the beneficiary's 
"prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or 
corporation or other legal entity" which employed the beneficiary abroad. 8 C.F.R. 5 204.56)(3)(i)(C). As 
properly pointed out by the director, the regulation's use of the word "is" prescribes that the relationship 
between the petitioner and the beneficiary's foreign employer must exist in the present, i.e., at the time of 
filing and continue to exist until such time as the beneficiary is granted an immigrant visa or adjusts status to 
that of a permanent resident of the United States. The petitioner's burden of establishing eligibility for the 
benefit sought is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. 
Feldrnan, 736 F.2d 1305 (9th Cir. 1984). 
In direct contradiction to the express language in the relevant regulatory provision, counsel's reasoning 
focuses on the petitioner's circumstances prior to the filing of the Form 1-140, thereby suggesting that 
eligibility need not be present at the time of filing so long as the petitioner established that it met the relevant 
regulatory provisions at some other time. This line of reasoning suggests that once a qualifying relationship is 
established as having existed, the petitioner can continue relying on that old qualifying relationship for a 
petition filed in the future, even if the relationship ceases to exist at the time of filing, as is the case in the 
present matter. The AAO cannot, however, adopt counsel's interpretation. Precedent case law specifically 
instructs against such an interpretation by specifically requiring that each petitioner establish its eligibility at 
the time of filing. Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Second, the AAO is not persuaded by counsel's assertion that the business activities of the beneficiary's 
foreign employer have been streamlined and absorbed by other affiliate entities that continue to exist. While 
this may be true, the ceased existence of the beneficiary's foreign employer is key in determining whether the 
requisite qualifying relationship exists. While the petitioner may maintain relationships with other entities, 
including some that are located abroad, the only qualifying relationship is one that exists between the 
petitioner and whatever foreign entity previously employed the beneficiary. It is undisputed that the 
beneficiary's foreign employer no longer exists and did not exist at the time the petitioner filed its Form 1-140. 
Regardless of whether or not the ceased entity's business activities are now carried on by other entities, any 
qualifying relationship that may have existed earlier terminated with the dissolution of the beneficiary's 
foreign employer. 
The facts presented by the petitioner in this matter indicate that the circumstances that would have rendered 
the petitioner eligible for the immigration benefit sought did not occur contemporaneously with the filing of 
the Form 1-140. Rather, by the time the petitioner filed the Form 1-140, it was longer eligible for the 
immigration benefit it was seeking by virtue of the ceased legal existence of the beneficiary's foreign 
employer. It would be factually impossible for the petitioner to establish an ongoing qualifying relationship 
with a foreign entity that no longer exists. Accordingly, as the petitioner did not have a qualifying 
relationship with the beneficiary's foreign employer at the time the Form 1-140 was filed, this petition cannot 
be approved. 
Furthermore, while not previously addressed in the director's decision, the record does not establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity, per 8 C.F.R. 
9 204.5('j)(3)(i)(B), or that he would be employed in the United States in a qualifying managerial or executive 
capacity, per 8 C.F.R. 5 204.5Cj)(5). Although the petitioner responded to the RFE with supplemental job 
descriptions addressing the beneficiary's foreign and proposed employment, both job descriptions lacked 
sufficient information about the beneficiary's specific day-to-day job duties that would convey a meaningful 
understanding of the nature of the beneficiary's employment with each entity. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). While the petitioner 
generally indicates that the beneficiary's discretionary authority fits the definition of managerial or executive 
capacity, these definitions are meant to serve only as guidelines to be applied to a specific list of duties. The 
actual duties themselves reveal the true nature of the employment. Id. Where, as in the instant case, the 
petitioner fails to adequately specify the beneficiary's daily job duties, the AAO cannot determine that the 
beneficiary's foreign and proposed employment consisted and would consist, respectively, of primarily 
managerial or executive tasks. 
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 
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Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 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). Therefore, based on the two additional grounds of ineligibility discussed above, 
this petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 9 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.