dismissed EB-1C Case: Computer Products Distribution

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: 
7 
Office: CALIFORNIA SERVICE CENTER Date: JUl, f! P 2a5 
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. 5 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. 
obert P. Wiemann, Director 
edministr ative Appeals Office 
DISCUSSION: The Director, California Service Center, approved the employment-based visa petition on 
December 9, 1996. Upon subsequent review, the director revoked the approval of the petition on January 23, 
2003. The petitioner filed an appeal on February 6, 2003, which the Administrative Appeals Office (AAO) 
dismissed in a decision dated August 2, 2004. The matter is now before the AAO on a motion to reconsider. 
The AAO will grant the motion and affirm the previous decisions of the director and AAO. 
The petitioner filed the employment-based petition seeking to classify the beneficiary as a multinational 
manager or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1153(b)(l)(C). The petitioner is a corporation organized under the laws of California that imports, 
exports, and distributes CD ROM, media software, and other computer products. The petitioner seeks to 
employ the beneficiary as its sales manager. 
The director initially approved the petition. Upon subsequent review, the director revoked approval of the 
petition concluding that the petitioner had not demonstrated that: (1) it was doing business in the United 
States; (2) a qualifying relationship existed between the foreign and United States entities; (3) the beneficiary 
would be employed in a primarily managerial or executive capacity; or (4) it had the ability to pay the 
beneficiary the proffered annual salary of $26,000. Counsel subsequently filed an appeal that was dismissed 
by the AAO. 
On motion, counsel claims that the director improperly revoked approval of the petition without providing the 
petitioner with notice of the revocation before the beneficiary's departure to the United States. Counsel notes 
that under section 205 of the Act, 8 U.S.C. 3 1155 and Firstland Int'l, Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 
2004) a revocation is not effective unless the director sends notice of the revocation to the petitioner's last 
known address and unless the notice of revocation is communicated to the beneficiary before his departure to 
the United States. Counsel asserts that because the beneficiary had been in the United States for 
approximately six years before the director's revocation of approval, such revocation is ineffective. Counsel 
submits a brief in support of the motion. 
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. 
Page 3 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 regulation at 3 103.5(a)(3) states: 
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 [Citizenship and Immigration Services (CIS)] policy. A motion to 
reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
The sole issue in this proceeding is whether the director properly revoked approval of the immigrant visa 
petition where the beneficiary had already been living in the United States. 
In a brief submitted in support of the motion to reconsider, counsel cites section 205 of the Act as evidence of 
the director's improper revocation of approval of the petition. At the time of filing the motion, August 30, 
2004, Section 205 of the Act read: 
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. Such revocation 
shall be effective as of the date of approval of any such petition. In no case, however, shall 
such revocation have effect unless there is mailed to the petitioner's last known address a 
notice of the revocation and unless notice of the revocation is communicated through the 
Secretary of State to the beneficiary of the petition before such beneficiary commences his 
journey to the United States. If notice of revocation is not so given, and the beneficiary 
applies for admission to the United States, his admissibility shall be determined in the manner 
provided for by sections 235 and 240. 
Counsel also draws the AAO's attention to a recent opinion, Firstland Int'l, Inc. v. Ashcroft, 377 F.3d 127 (2d 
Cir. 2004), issued by the United States Court of Appeals for the Second Circuit on August 2, 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 asserts that the reasoning of this opinion should be applied to the present 
matter. Counsel claims that in accordance with Firstland, CIS may not revoke the approval because the 
beneficiary had already been in the United States when the director issued the revocation.' 
' 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 nonimrnigrant L-1A intracompany transferee in April 1995, 
According to the record of proceeding, the petitioner is located in Arcadia, California; thus, this case did not 
arise in the Second Circuit. Firstland was never a binding precedent for this case. Even as a merely 
persuasive precedent, moreover, Firstland is no longer good law. 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, - Stat. - (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. 
Based on the foregoing discussion, the director properly revoked approval of the immigrant petition despite 
the beneficiary's residence in the United States at the time of revocation. Accordingly, the decisions of the 
AAO and the director will be affirmed. The immigrant visa petition is denied. 
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, that burden has not been met. Accordingly, the 
decisions of the director and AAO will be affirmed and the petition will be denied. 
ORDER: The decision of the AAO dated August 2,2004 is affirmed. 
-- 
more than one year prior to the approval of the immigrant petition and almost eight 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, counsel's interpretation of 
Firstland would have created a situation where any alien would have an irrevocable immigrant visa petition if 
the alien simply waited to file the petition after he or she arrived in the United States.