dismissed EB-1C Case: Chemicals Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 8402570 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 5, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a coating and specialty chemicals manufacturer , seeks to permanently employ the 
Beneficiary as its customer service/commercial excellence manager, Americas, under the first 
preference immigrant classification for multinational executives or managers . Immigration and 
Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). This classification allows a 
U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an 
executive or managerial capacity. 
The Director of the Nebraska Service Center initially denied the petition on January 10, 2019. 
Following a subsequent motion to reopen, the Director reopened the proceeding and denied the petition 
on March 6, 2019. Following another motion to reopen, the Director reopened the proceeding and 
denied the petition on August 26, 2019, concluding that the record did not establish that (1) the 
Petitioner has a qualifying relationship with the Beneficiary's foreign employer; (2) the Petitioner has 
been doing business for at least one year; (3) the foreign entity continues to do business; and (4) the 
Beneficiary was employed in a managerial or executive capacity abroad. The matter is now before us 
on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. §1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
II. PROCEDURAL HISTORY 
The Form 1-140 was filed by,__ ____________ ___.on December 13, 2017. The 
Petitioner asserted in its supporting letter that the Beneficiary had been employed by the~I ---~ 
group of companies from September 2011 until her February 2017 transfer to the United States to 
work for the Petitioner in nonimmigrant status. Specifically, a supporting letter froml I I I stated that the Beneficiar started in September 2011 id O I "and soon thereafter 
she was transferred to " The Petitioner asserted that it and I I I I were both wholly owned b.1.__ _____ ___. The Beneficiary concurrently filed a 
Form 1-485, Application to Register Permanent Residence or Adjust Status, on December 13, 2017, 
pursuant to the concurrent filing process that was implemented by U.S. Citizenship and Immigration 
Services (USCIS) on July 31, 2002. See 67 Fed. Reg. 49,561 (July 31, 2002), codified at 8 C.F.R. § 
245.2(a)(2)(i)(B). 
The Form 1-140 petition was initially denied on January 10, 2019. In that denial decision, the Director 
determined that the Petitioner did not provide sufficient evidence to demonstrate that (1) a qualifying 
relationship exists between the Petitioner and the Beneficiary's foreign employer; and (2) the U.S. 
position and the Beneficiary's position abroad qualify as managerial or executive positions. 
Specifically, the Director reviewed a Form 1-797, Notice of Action, from a blanket L petition and 
stated that a qualifying relationship existed between the Petitioner and the Beneficiary's foreign 
employer,__ __________ ...., as of January 10, 2012, 1 but that there is not sufficient 
evidence to demonstrate that the qualifying relationship still existed based on the age of the document. 
He further determined that the description of the Beneficiary's U.S. duties was broad and ambiguous 
and did not demonstrate that the Beneficiary would be spending her time performing primarily 
managerial or executive duties. He also determined that the Petitioner did not provide necessary 
details regarding the Beneficiary's proposed subordinates. Further, with regard to her foreign position, 
he determined that the description of the Beneficiary's duties was broad and ambiguous and did not 
demonstrate that the Beneficiary spent her time performing primarily managerial or executive duties. 
He rejected the Petitioner's claim that the Beneficiary served as a function manager abroad, and he 
determined that the Petitioner did not provide necessary details regarding the Beneficiary's 
subordinates. 
In a subsequent motion to reopen dated February 12, 2019, the Petitioner asserted that it "relaunched" 
asl lin October 2018 following the acquisition ofthe,__ ______ ~ ___ _.group 
of com anies b th and It further stated that the Beneficiary worked for~ 
r-------------.... ______ ____J from September 2011 to December 2013, and for 
~---------~ from January 2014 to February 2017. The Petitioner submitted additional 
materials regarding the Beneficiary's positions abroad and in the U.S. and asserted that her 
employment abroad with I I as a commercial excellence specialist from 
January 2014 to February 2017 was primarily managerial, and that her proposed position in the United 
1 The blanket L petition showed that the two entities were wholly owned byl,__ ____ ~ 
2 
States as customer service/commercial excellence manager, Americas, would be primarily 
managerial. 2 
The Director reopened the proceeding and denied the petition on March 6, 2019. In his March 6, 2019, 
decision, the Director stated that the Petitioner "submitted sufficient evidence of the beneficiary's U.S. 
and foreign positions" but determined that the Petitioner did not provide sufficient evidence that a 
qualifying relationship continued to exist between the petitioner and the Beneficiary's foreign 
employer. Specifically, he noted the Petitioner's claim that the Petitioner continues to do business 
abroad throug~ I and indicated that the "petitioner's doing business through 
affiliates abroad does not constitute that a qualifying relationship exists between the petitioner and the 
foreign entity." He further stated that the "evidence submitted indicates that prior to October 2018 the 
petitioner and the foreign entity had a qualifying relationship; however, the petitioner did not provide 
sufficient evidence to demonstrate that the petitioner and the foreign entity both continue to be owned 
and controlled by the same entity company." 
The Petitioner filed another motion to reopen on April 8, 2019. It submitted a Form 1-797 issued to 
~--------~ in connection with a blanket L petition. The notice indicates that effective 
March 20, 2019, the Petitioner f-LLI-I.......--------....---,-------.....,....----,-----....-are 
considered to be wholly-owned b The notice does not list the Beneficiary's 
relevant foreign employer,~-------------' which claims to have employed the 
Beneficiary in a primarily managerial position abroad. The Director sent a request for evidence (RFE) 
to the Petitioner on May 2, 2019. The RFE requested information demonstrating (1) the Petitioner's 
qualifying relationship with the Beneficiary's foreign employer; (2) that the Petitioner has been doing 
business for at least one year and is continuing to do business; (3) that the foreign entity was doing 
business at the time of filing and continues to do business; (4) that the Petitioner has the continuing 
ability to pay the proffered wage; (5) that the Beneficiary was employed outside the United States for 
at least one year in the three years preceding her transfer to the U.S. to work for the Petitioner in 
nonimmigrant status; and (6) that the Beneficiary was employed in a managerial or executive capacity 
abroad. 
In its response to the RFE, the Petitioner asserted that USCIS must approve the petition because the 
Beneficiary qualifies for "portability." See section 204(j) of the Act, 8 U.S.C. § l 154(j); see also 
§106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. 
No. 106-313. Under the portability provision, a petition for a beneficiary whose adjustment of status 
application remained unadjudicated for at least 180 days "shall remain valid" if the beneficiary 
changes jobs or employers, and receives a new job offer in the same or similar occupation for which 
the petition was filed. Section 204(j) of the Act. 3 The Petitioner asserted in its RFE response that the 
2 It does not assen that her employment with~----~-------~----~ was primarily 
managerial. 
3 Section 204(j) of the Act reads as follows: 
Job flexibility for long delayed applicants for adjustment of status to permanent residence - A petition 
under subsection ( a)( I )(D) [later redesignated ( a)( I )(F)] for an individual whose application for 
adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or 
more shall remain valid with respect to a new job if the individual changes jobs or employers if the new 
job is in the same or a similar occupational classification as the job for which the petition was filed. 
3 
Beneficiary had a new offer of employment. With its RFE response, the Petitioner submitted a 
Supplement J to Form 1-485 filed by the Beneficiary and accepted by USCIS on August 1, 2019. The 
Beneficiary checked box 1.b. at Part 1 indicating that she was requesting "job portability under INA 
section 204(j) to a new, full-time, permanent job offer" that she intends to accept once her Form 1-485 
is approved. 4 The Supplement J indicates that the new employer's name isl I I I and that the new position is the same as the offered position. 
The Petitioner further stated in its RFE response that the Beneficiary's "new offer of employment 
includes the same position as the one provided in Form 1-140, and her duties remain identical." It 
stated that the pending Form 1-140 petition "is approvable or would have been approved if it were 
adjudicated within 180 days after the filing of the associated Application to Adjust Status" on June 11, 
2018. The Petitioner asserted that "USCIS has already determined that a qualifying relationship 
between the entities existed until June 11, 2018, 5 and [the Beneficiary] has worked in a managerial 
capacity in the U.S. and abroad." Counsel also asserted that the Petitioner had the ability to pay at the 
time of filing on December 13, 201 7. It stated that since the eligibility requirements were met at the 
time of filing and until June 11, 2018 (180 days after filing the adjustment of status), a pending 
qualifying Form 1-140 petition should be approved. Following receipt of the Petitioner's response to 
the RFE, the Director denied the petition on August 26, 2019. 6 
III. WAIVED ISSUES 
The Director determined in his August 26, 2019, decision that the record did not establish that (1) the 
Petitioner has a qualifying relationship with the Beneficiary's foreign employer; (2) the Petitioner has 
been doing business for at least one year; (3) the foreign entity continues to do business; and (4) the 
Beneficiary was employed in a managerial or executive capacity abroad. The Petitioner does not 
contest these determinations on appeal. Therefore, we deem these issues to be waived. See, e.g., 
Matter of M-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). The appeal will be dismissed for these 
reasons. 
IV. APPROVABILITY OF FORM 1-140 PETITION BASED ON PENDING FORM 1-485 
As noted, the Petitioner indicated in its response to the Director's RFE that the Beneficiary has a new 
employment offer from a different U.S. employer and maintained that the Beneficiary is eligible to 
port to the new employer to undertake a position in the same or similar occupational classification. 
4 The regulation at 8 C.F.R. § 204.5(e)(5) provides: 
A petition filed under section 204(a)(l)(F) of the Act for an alien shall remain valid with respect to a new 
employment offer as determined by [USCIS] under section 204(j) of the Act and 8 C.F.R. § 245.25. An 
alien will continue to be afforded the priority date of such petition if the requirements of paragraph ( e) 
of this section are met. 
5 It stated that the Petitioner and the Beneficiary's foreign employer,'----------~, have a qualifying 
relationship as affiliates; that both are wholly owned by.__ ___ ____,; and that their relationship continued until October 
1, 2018. The Petitioner's 2017 federal tax return indicates that its parent company isl I., a U.S. entity. 
6 Although the director has not yet denied the Form 1-485 application for adjustment of status, an immigrant visa is not 
immediately available to the Beneficiary based on the denial of the Form 1-140 petition. Section 245(a) of the Act requires 
the adjustment applicant to have an approved petition. 
4 
As such, the Petitioner requested approval of the Form I-140 and approval of the Beneficiary's 
concurrently filed Fonn I-485. In contrast, the Petitioner asserts on appeal that the Beneficiary does 
not have a new offer employment from a different employer but that, in fact, her job offer is the same 
as the one originally offered and that the Petitioner simply changed its name. The Petitioner claims 
that the petition should be approved under 8 C.F.R. § 245.25(a)(2)(ii)(B)(2) even though the 
Beneficiary has not ported to a new position. 
On appeal, the Petitioner asserts that the "director's decision of March 6, 2019 denying this petition 
was in error in light of the fact that the beneficiary filed an application for adjustment of status on 
December 13, 2017," and that the March 6, 2019, decision "should be vacated and the petition 
approved." The Petitioner points to the Director's statements in his March 6, 2019, denial decision 
that the Petitioner "submitted sufficient evidence of the beneficiary's U.S. and foreign positions" and 
that the "evidence submitted indicates that prior to October 2018 the petitioner and the foreign entity 
had a qualifying relationship ." It asserts that based on these statements, the petition was eligible for 
approval as of June 11, 2018, because under 8 C.F.R. § 245.25(a)(2)(ii)(B)(2) , a pending petition may 
be approved if it was "eligible for approval at the time of filing and until the alien's adjustment of 
status application has been pending for 180 days, unless approval of the qualifying immigrant visa 
petition at the time of adjudication is inconsistent with a requirement of the Act or another applicable 
statute." The Petitioner asserts that the approval of the petition at the time of adjudication is not 
inconsistent with a requirement of the Act or another applicable statute. We disagree with the 
Petitioner's appellate assertions. 
The Form I-140 portability provisions provide job :flexibility to adjustment of status applicants in the 
first three employment-based preferences with long-pending and unadjudicated adjustment of status 
applications. As noted above, under section 204(j) of the Act, a petition for a beneficiary whose 
adjustment of status application remained unadjudicated for at least 180 days "shall remain valid" if 
the beneficiary changes jobs or employers, and receives a new job offer in the same or similar 
occupation for which the petition was filed.7 The regulation at 8 C.F.R. § 245.25(a) makes clear that 
an applicant who seeks to adjust status on the basis of an employment-based petition filed under the 
first three preference categories must have a valid offer of employment based on a valid immigrant 
visa petition at the time his or her adjustment of status application is adjudicated. 8 
7 To remain valid under the portability provision , the petition must have been filed for a beneficiary entitled to the benefit 
and approved by users. Matter of Al Wazzan, 25 r&N Dec. 359, 367 (AAO 2010) (stating that "a petition is not made 
'valid' merely through the act of filing the petition with users or through the passage of 180 days"); see also Herrera v. 
USCIS, 571 F.3d 881, 887 (9th Cir. 2009) (finding that "in order for a petition to 'remain' valid, it must have been valid 
from the start"). 
8 The regulation at 8 C.F.R. § 245.25(a) provides, in part, that 
An alien who has a pending application to adjust status to that of a lawful permanent resident based on 
an approved employment-based immigrant visa petition filed under section 204(a)(l)(F) of the Act on 
the applicant's behalf must have a valid offer of employment based on a valid petition at the time 
the application to adjust status is filed and at the time the alien's application to adjust status is 
adjudicated , and the applicant must intend to accept such offer of employment. 
5 
The regulation at 8 C.F.R. § 245.25(a) sets forth two distinct ways for meeting the requirement of a 
valid offer of employment based on a valid immigrant visa petition. 9 We will explore both below. 
A. 8 C.F.R. § 245.25(a)(l) 
First, under 8 C.F.R. § 245.25(a)(l), the applicant may establish that the employment offer by 
the petitioning employer who filed the Form 1-140 is a continuing valid offer of employment based on 
a valid immigrant visa petition. This applies to cases where the applicant is seeking adjustment of 
status based on an approved Form 1-140 petition under 8 C.F.R. § 245.25(a). Here, the Petitioner 
asserts on appeal that it changed its name on July 1, 2019, and that the job offer remains the same as 
originally offered on the Form 1-140.10 However, the petition was not approved; it was denied by the 
Director because the record does not establish that ( 1) the Petitioner has a qualifying relationship with 
the Beneficiary's foreign employer; (2) the Petitioner has been doing business for at least one year; 
(3) the foreign entity continues to do business; and (4) the Beneficiary was employed in a managerial 
or executive capacity abroad. As previously noted, the Petitioner does not contest these determinations 
on appeal and thus, these issues have been waived. Because the petition was not approved, the 
provisions of 8 C.F.R. § 245.25(a)(l) do not apply to this case. 
B. 8 C.F.R. § 245.25(a)(2) 
Second, the regulation at 8 C.F.R. § 245.25(a)(2) sets forth the rules for meeting the requirement of a 
valid offer of employment based on a valid immigrant visa petition after porting under the section 
204(j) portability provisions. Under 8 C.F.R. § 245.25(a)(2), an adjustment applicant may establish 
that under section 204(j) of the Act, he or she has a new offer of employment from the petitioning 
employer, a different U.S. employer, or himself or herself (self-employment); provided, however, that 
the offer is in the same or similar occupational classification as the employment offered on the Form 
1-140 petition. See 7 USCIS Policy Manual E.5, https://www.uscis.gov/policymanual. 
If the applicant is seeking to establish that he or she has a qualifying offer of employment based on a 
qualifying petition under 8 C.F.R. § 245.25(a)(2), he or she must meet additional 
regulatory requirements. First, under 8 C.F.R. § 245.25(a)(2)(i), the applicant must establish that his 
or her adjustment of status application, based on a qualifying immigrant visa petition, has been pending 
for 180 days or more. Second, under 8 C.F.R. § 245.25(a)(2)(ii)(B), the applicant must also establish 
either that his or her petition has already been approved; or that the petition is pending when he or she 
notifies USCIS of a new job offer 180 days or more after the adjustment of status application is 
filed, and the petition is subsequently approved. The pending petition will be approved if it was 
eligible for approval at the time of filing and if it remained eligible for approval until the applicant's 
adjustment petition had been pending for 180 days, unless such approval at the time of adjudication 
9 The record contains conflicting claims regarding the Beneficiary's job offer: the Petitioner asserts on appeal that the job 
offer is a continuing one under 8 C.F.R. § 245.25(a)(l ), but it asserted in response to the RFE that the job offer is a new 
one under 8 C.F.R. § 245.25(a)(2). The Petitioner has not resolved these inconsistencies with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 T&N Dec. 582, 591-92 (BIA 1988). 
10 On appeal. the Petitioner's counsel states thatl I is the new name of .... l ___ _. I I A Certificate of Amendment, effective July 1, 2019, reflecting the name change accompanies 
the appeal. Counsel states that in a previous filing in this matter, she ·'referred to.__ __________ __. as 
a different entity" but that she did not have all of the relevant facts before her when she made the assertion. 
6 
would be inconsistent with a requirement of the Act or other applicable statute. 8 C.F.R. § 
245.25(a)(2)(ii)(B)(2). 
Here, the Beneficiary indicated in a Supplement J to Form I-485 filed on August 1, 2019, that she 
received a job offer from a new employer, and she requested to port to that new employer. The 
Supplement J does not appear to have been amended or withdrawn. The employment situation asserted 
by the Beneficiary in her Supplement J - with a new employment offer- falls under 8 C.F.R. § 
245.25(a)(2). However, as noted above, the record does not demonstrate that the Petitioner or another 
entity made a new employment offer to the Beneficiary which would have triggered the portability 
provisions, as the Petitioner asserts there was only a name change in the petitioning entity and no 
change in the position. USCIS will only adjudicate a qualifying Form I-140 petition in accordance 
with the standards described 8 C.F.R. § 245.25(a)(2)(ii) when the Beneficiary intends to port to a new 
job pursuant to 204(j) of the Act. As previously indicated, "a petition is not made 'valid' merely 
through the act of filing the petition with USCIS or through the passage of 180 days." Matter of Al 
Wazzan, 25 I&N Dec. at 367. The burden is on the applicant to demonstrate eligibility or otherwise 
maintain eligibility for adjustment of status to lawful permanent residence. See sections 204( e) and 
291 of the Act, 8 U.S.C. 1154(e) and 1361; see also Tongatapu Woodcraft of Haw., Ltd. v. Feldman, 
736 F.2d 1305, 1308 (9th Cir. 1984) (stating that the applicant "bears the ultimate burden of proving 
eligibility" and that this burden "is not discharged until" lawful permanent residence is granted); 8 
C.F.R. § 103.2(b )(1 ). The record here does not establish that the Beneficiary intends to port to a new 
job pursuant to 204(j) of the Act because the Petitioner asserts on appeal that the job offer is not new 
and that the Beneficiary does not intend to port. The Petitioner has not resolved the inconsistencies in 
the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). 
Further, even if the record had demonstrated that the Beneficiary intends to port to a new job, which 
it does not, the Petitioner has not demonstrated eligibility from the petition's filing date until the 
Beneficiary's adjustment application remained pending 180 days under 8 C.F.R. 
§ 245.25(a)(2)(ii)(B)(2). In his March 6, 2019, decision, the Director stated that the "evidence 
submitted indicates that prior to October 2018 the petitioner and the foreign entity had a qualifying 
relationship" and that the Petitioner "submitted sufficient evidence of the beneficiary's U.S. and 
foreign positions." The Petitioner asserts that these statements indicate eligibility from the petition's 
filing date until a beneficiary's adjustment application remained pending 180 days. We disagree. 
The record does not demonstrate the qualifying relationship between the Petitioner and the 
Beneficiary's foreign employerJ l from the filing date of the petition on 
December 13, 2017, to June 11, 2018. 11 To establish a "qualifying relationship," the Petitioner must 
show that the Beneficiary's foreign employer and the proposed U.S. employer are the same employer 
(a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
§ 203(b )(1 )(C) of the Act; see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" 
and "subsidiary"). For first preference multinational executives or managers, a petitioner cannot rely 
on a prior L-1 approval as evidence of a qualifying relationship for purposes of a subsequent immigrant 
11 The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 25 
l&N Dec. 369, 376 (AAO 2010). 
7 
visa pet1t10n. Matter of F-M- Co., Adopted Decision 2020-01 (AAO May 5, 2020). As noted by the 
Director in his initial denial decision, a Form I-797 from a blanket L petition indicated that a qualifying 
relationship existed between the Petitioner and the Beneficiary's foreign employer,! I I Las of January 10, 2012. However, he indicated that there was not sufficient evidence 
to demonstrate that the qualifying relationship still existed based on the a e of the document. The 
Petitioner later submitted a news report dated August 30, 2013, from listing the 
Petitioner and I I as subsidiaries of However the 
Petitioner did not demonstrate the qualifying relationship between it an ._ __________ _. 
from the petition's filing date in 2017 until the Beneficiary's adjustment application remained pending 
180 days. Further, although the Director's August 26, 2019, decision concluded that the record did 
not establish that the Petitioner has a qualifying relationship with the Beneficiary's foreign employer, 
the Petitioner submitted no evidence on appeal related to the qualifying relationship. 
Additionally, the Director determined in his August 26, 2019, decision that the Beneficiary was not 
employed in a managerial or executive capacity abroad. Based on that finding, the Petitioner has not 
demonstrated eligibility from the petition's filing date until the Beneficiary's adjustment application 
remained pending 180 days. The Petitioner does not contest this finding on appeal. As noted in Al 
Wazzan, "it would severely undermine the immigration laws of the United States to find that a petition 
is 'valid' when that petition was never approved or, even if it was approved, if it was filed on behalf 
of an alien who was never 'entitled' to the requested visa classification." Al Wazzan, 25 I&N Dec. at 
367. The petition must have been valid to begin with if it is to remain valid with respect to a new job. 
Id. at 365. 
Additionally, under 8 C.F.R. § 245.25(a)(2)(ii)(B)(2), the petition cannot be approved because it is 
inconsistent with a requirement of the Act or another applicable statute. Section 203(b)(l)(C) of the 
Act states that an immigrant visa is available to a beneficiary who, in the three years preceding the 
filing of the petition, has been employed outside the United States for at least one year in a managerial 
or executive capacity, and seeks to enter the United States in order to continue to render managerial 
or executive services to the same employer or to its subsidiary or affiliate. The Director determined in 
his August 26, 2019, decision, in part, that the record did not establish that (1) the Petitioner has a 
qualifying relationship with the Beneficiary's foreign employer, and (2) the Beneficiary was employed 
in a managerial or executive capacity abroad. Thus, approval of the petition would be inconsistent 
with section 203(b)(l)(C) of the Act. 
On appeal, the Petitioner cites a memorandum from William R. Yates, Associate Director for 
Operations, USCIS, HQPRD 70/6.2.8-P, Interim Guidance/or Processing Form 1-140 Employment­
Based Immigrant Petitions and Form 1-485 and H-lB Petitions Affected by the American 
Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) (May 12, 
2005), http://www.uscis.gov/laws/policy-memoranda. 12 The Petitioner notes that "it has long been 
12 The Yates memorandum, as well as a subsequent memorandum from Donald Neufeld, Acting Associate Director for 
Operations, USCIS, HQPRD 70/6.2, Supplemental Guidance Relating to Processing Forms 1-140 Employment-Based 
Immigrant Petitions and 1-129 H-JB Petitions, and Form 1-485 Adjustment Applications Affected by the American 
Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), as amended, and the American 
Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Title IV of Div. C. of Public Law 105-277 (May 30, 
2008), http://www.uscis.gov/laws/policy-memoranda, both relied on the reasoning in our decision in Al Wazzan, which 
8 
USCIS policy that petitions for multinational managers 'remain valid' under INA 204(j) even when 
the beneficiary 'ports' to another employer unrelated to the company he provided services to abroad" 
and it asserts that while 8 C.F.R. § 245.25 generally pertains to petitions which have been ported to 
another employer, there is nothing in the regulation that limits pending petitions to petitions which 
have been so ported. The Petitioner further states that "such an interpretation will result in ported 
petitions being treated more favorably than petitions which have not been so ported" and that this 
"would be contrary to the evident intent of Section 204(j)." We disagree. 
As stated in Al Wazzan, the "legislative history does not shed light on Congress' intent in specifically 
enacting section 106(c) of AC21." While the legislative history for AC21 discusses congressional 
concerns regarding the nation's economic competitiveness, the shortage of skilled technology workers, 
U.S. job training, and the cap on the number of nonimmigrant H-lB workers, the legislative history 
does not specifically mention section 106(c) .... " Matter of Al Wazzan, 25 I&N Dec. at 363. As further 
noted in Al Wazzan, "[ e ]ven if more specific references were available, the legislative history behind 
AC21 would not provide guidance in the current matter since, as previously noted, an approved 
employment-based immigrant visa petition was required to file for adjustment of status at the time 
Congress enacted AC21." Id. at 364. 13 
We note that the final rule relating to job portability under section 204(j) of the Act, U.S.C. § 1154(j), 
became effective January 17, 2017. The preamble to the final rule states: 
Many individuals subject to the immigrant visa backlogs confront the choice between 
remaining employed in a specific job under the same terms and conditions originally 
offered to them, or abandoning the pursuit of an immigrant visa altogether if they do 
not have another Form 1-140 petition filed on their behalf. When such a worker changes 
employers or jobs-including a change to an identical job with a different employer or 
to a new but related job for the same employer- the worker is typically subject to 
uncertainty as to whether USCIS will approve his or her application for LPR status 
based on the change. Moreover, these individuals must consider whether such changes 
would involve expensive additional immigration processes, greatly discouraging them. 
Indeed, under current regulations, some changes in employment could result in the loss 
of nonimmigrant status, loss of the ability to change to another nonimmigrant status, 
loss of an approved immigrant visa, loss of the ability to obtain an immigrant visa or 
adjust to LPR status, or the need for the affected worker and his or her family to 
immediately depart the United States. As a result, these employees often suffer through 
many years of effective career stagnation, as they are largely dependent on current 
employers for immigration status and are substantially restricted in their ability to 
change employers or even accept promotions from, or make lateral movements within, 
their current employers. 
Id. at 82411. Thus, considerations related to portability were of foremost importance in the regulations 
implementing AC2 l. 
had been designated as an adopted decision in 2005 prior to being designated as a precedent decision in 2010. The 
principles of both memos were also incorporated into 8 C.F.R. § 245.25(a)(2) . 
13 Thus, when AC21 was enacted, the only time that an application for adjustment of status could have been pending for 
180 days was when it was filed based on an approved immigrant petition. 
9 
V. CONCLUSION 
In sum, the Director determined in his August 26, 2019, decision that the record did not establish that 
(1) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer; (2) the 
Petitioner has been doing business for at least one year; (3) the foreign entity continues to do business; 
and (4) the Beneficiary was employed in a managerial or executive capacity abroad. Because the 
Petitioner does not contest these determinations on appeal, we deem these issues to be waived. 
Further, the petition cannot be approved for purposes of portability under the provisions of 8 C.F.R. 
§ 245.25(a). For these reasons, we will dismiss the appeal. 
ORDER: The appeal is dismissed. 
10