dismissed EB-1C Case: Consulting

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U.S. Department of Homeland Security 
U.S . Citizenship and immi gration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
. U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 0 4 2014 OFFICE: NEBRASKA SERVICE CENTER . FILE: 
lN RE: Petitioner : 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1 l53(b )(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative ppeals Office (AAO) in your case. 
This is a non-prec edent decision. The AAO does not announce new con tructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO inco tly applied current law or policy to 
your case or if you seek to present new facts for consideration, you .fi·; ty file a motion to reconsider or a 
motion to reopen , respectively . Any motion must be filed on a Notice of Appeal or Motion (Form l-290B) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
~~~~App~ls Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a multinational corporation that seeks to employ the beneficiary in the United States 
as its principal consultant. 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)(l)(C), as a multinational executive or manager. 
In support of the Form I-140, the petitioner submitted a statement dated June 12, 2012, which 
contained relevant information pertaining to the petitioner's eligibility. The petitioner stated that the 
beneficiary has intermittently worked both abroad and in the United States since he commenced his 
employment with the multinational organization. The petitioner also provided supporting evidence 
that documented its corporate structure and expanded on the type of business the petitioner conducts 
in the United States and abroad. 
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 November 30, 2012 
informing the petitioner of various evidentiary deficiencies. The petitioner was asked to provide 
additional information pertaining to the beneficiary's foreign and U.S. employment. 
The petitioner's response included a statement dated February 7, 2013 in which the petitioner 
addressed the beneficiary's employment both abroad and in the United States. The discussion ofthe 
beneficiary's employment abroad included the dates of his intermittent employment, which 
commenced in May of 2004. Specifically, the petitioner stated that the beneficiary worked for the 
petitioner's Indian subsidiary from May 3, 2004 to December 2, 2005, followed by employment for 
the petitioner in the United States in L-1 status from December 3, 2005 until July 13, 2008. The 
beneficiary subsequently 
returned to India to continue his employment abroad from July 14, 2008 to 
May 8, 2009. The beneficiary has worked for the petitioner in L-1A status and resided in 
the United 
States since May 2009. 
After considering the beneficiary's dates of employment, the director determined that the beneficiary 
did not have the requisite one-year period of employment abroad prior to entering the United States 
to be employed by the petitioning entity. On the basis of the information provided, the director 
concluded that the petitioner was statutorily ineligible for the immigration benefit sought herein and 
therefore denied the petition. 
On appeal, counsel submits a brief in which he disputes the director's decision, contending that the 
director failed to issue an RFE prior to denying the petition, and thus violated the provisions 
discussed at 8 C.F.R. § 103.2(b)(16)(i) and (ii). Counsel also contends that the beneficiary 's period 
of employment abroad did not have to be continuous in order to meet statutory requirements. 
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After reviewing the evidence presented and considering counsel's supporting brief, the AAO finds 
that counsel's assertions are not persuasive in addressing the basis for denial. A full discussion of 
the relevant factors is provided below. 
I. The Law 
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 ofthe alien's application/or 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. 
(Emphasis added.) 
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. 
Additionally, the regulation at 8 C.F.R. § 204.5G)(3)(i) states, in part, the following: 
(A) If the alien is outside the United States, in the three years preceding the filing 
of the petition the alien has been employed outside the United States for at 
least one year in a managerial or executive capacity by a firm or corporation, 
or other legal entity, or by an affiliate or subsidiary of such a firm or 
corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a managerial or executive capacity[.] 
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The clear language of the statute indicates that the relevant three year period is that "preceding the 
time of the alien's application for classification and admission into the United States under this 
subparagraph." Sec. 203(b)(l)(C) of the Act. The statute, however, is silent with regard to aliens 
who have already been admitted to the United States in a nonimmigrant classification. 
In promulgating the regulations on section 203(b )(1 )(C) of the Act, the legacy Immigration and 
Naturalization Service (INS) concluded that it was not the intent of Congress to exclude L-1A 
multinational managers or executives who had already been transferred to the United States from 
this employment-based immigrant classification. Specifically, INS stated the following with regard 
to the interpretation of the Congressional intent behind the relevant statutory provisions: 
The Service does not feel that Congress intended that nonimmigrant managers · or 
executives who have already been transferred to the United States should be excluded 
from this classification. Therefore, the regulation provides that an alien who has 
been a manager or executive for one year overseas, during the three years preceding 
admission as a nonimmigrant manager or executive for a qualifying entity, would 
qualify. 
56 Fed. Reg. 30703, 30705 (July 5, 1991 ). 
In other words, for those aliens who are currently in the United States, the relevant time period 
mentioned in the statute should be the three-year period preceding the time of the alien's application 
and admission as (or change of status to) an manager or executive to work for the "same employer." 
8 C.P.R. § 204.5G)(3)(i)(B). Aliens currently in the United States who have worked for an unrelated 
employer should be treated the same as aliens who are outside the United States for purposes of 
eligibility. See 60 Fed .Reg. 29771,29776 (June 6, 1995) (Proposed Rule). 
II. Analysis 
. In the present matter, the beneficiary was originally employed by Infosys India from May 3, 2004 
until July 8, 2005, prior to entering the United States as an L-lB employee with specialized 
knowledge on July 9, 2005. The beneficiary returned to India for period of October 16, 2005 until 
December 2, 2005, when he re-entered the United States in L-lB status based on a blanket petition. 
USC IS granted an extension of the L-1 B petition from March 31, 2006 until March 2, 2008. On 
June 14, 2008, US CIS denied the beneficiary's second L-1 B extension. The beneficiary then 
returned to overseas employment with Infosys India from July 14, 2008 until May 8, 2009, a period 
of nine months and 25 days, prior to returning to the United States as an L-IA manager. 
Thus, given that the beneficiary was employed in the United States by the U.S. petitioner at the time 
the Form I-140 was filed, the relevant three-year time period during which the beneficiary's 
employment abroad would be considered is 
the period that directly preceded the beneficiary's 
application and admission as an L-IA managerial or executive employee for the U.S. entity, i.e., the 
period of May 9, 2006 through May 8, 2009. However, the beneficiary's employment history and 
his specific dates of foreign employment, as specified in the petitioner's February 6, 2013 RFE 
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response statement, indicate that the only portion of the beneficiary's foreign employment that took 
place between May 2006 and May 2009 was from July 14, 2008 until May 8, 2009. This period of 
employment amounts to nine months and twenty five days, slightly more than two months short of 
the required one-year period. 
Counsel correctly points out that the beneficiary's period of foreign employment does not have to be 
continuous, such that any employment abroad with the qualifying entity that may have taken place 
during the relevant three-year time period would be considered in determining whether the 
beneficiary meets the one-year requirement. However, the record in the present matter shows that 
the beneficiary's nine months and twenty five days of employment abroad was preceded by a 
lengthy period of U.S. employment that commenced in December 2005 and did not end until July 
2008. In a letter dated February 6, 2013, Mr. Engagement Manager for 
confirmed: 
From December 2005 until July 14, 2008, [the beneficiary] was assigned to work in 
the United States for our client, He returned to 
Bangalore, India on July 14, 2008 to direct and manage the projects for from 
Offshore. 
Thus, contrary to counsel's assertions, which indicate that the director placed undue emphasis on the 
term "continuous" in determining how the beneficiary's employment abroad was to be calculated, 
the record shows that the beneficiary's time period of employment abroad simply does not meet the 
statutory or regulatory criteria. 
Counsel further asserts that the director incorrectly interpreted the phrase "entry as a nonimmigrant" 
at 8 C.F.R. § 204.5(j)(3)(B) to mean the "last entry" as a nonimmigrant. The petitioner states 
that 
the beneficiary initially worked for the overseas company from May 4, 2004 until December 2, 
2005, when the beneficiary entered the United States as a nonimmigrant L-lB specialized 
knowledge employee. This period of time constitutes more than one year, but the petitioner has not 
established by a preponderance of the evidence that the beneficiary was employed in a primarily 
managerial or executive capacity during this time. 1 
While the petitioner's response to the director's RFE states the beneficiary was employed as a 
"Consultant (Project Manager)," the initial support letter, dated June 20, 2012, stated that the 
beneficiary served as "Consultant (filling the role of Project Manager) from May 2004 until 
December 2005 with " (Emphasis added.) The confusion is compounded by the 
beneficiary's Form G-325A Biographic Information, which reflects that the beneficiary served as a 
"Consultant" from December 2005 to May 2006, rising to "Senior Consultant" in July 2008, and 
1 
The L-1 nonimmigrant classification allows for one year of overseas employment in a "specialized 
knowledge" capacity, as opposed to managerial or executive capacity. In contrast, the present 
immigrant visa classification strictly requires that the beneficiary be "employed by the entity abroad 
for at least one year in a managerial or executive capacity." Compare 8 C.P.R. §§ 204.5(j)(3)(ii)(B) 
and 214.2(l)(3)(iv). 
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"Principal Consultant" in April 2012. The G-325A does not use the term "manager" or "project 
manager" in the beneficiary's title at any time; instead, the beneficiary is consistently referred to as a 
"consultant." 
While the beneficiary's job title is not determinative, his initial entry as a specialized knowledge 
employee and the conflicting and evolving use of job titles in this matter causes the AAO to question 
whether the beneficiary held a managerial position during the initial one year of employment abroad. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter 
of Ho, 19 I&N Dec. 582, 591 (BIA 1988). IfUSCIS fails to believe that an asserted fact stated in the 
petition is true, USCIS may reject that assertion. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see 
also Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 
F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Lastly, counsel's discussion of the provisions within 8 C.F.R. § 103.2(b)(16)(i) and (ii), which 
address the petitioner's right to review derogatory information that was previously unknown to the 
petitioner, is irrelevant to the matter at hand. The director's adverse finding is entirely based on 
information regarding the beneficiary's dates of employment, information that was part of the 
record. When the petitioner is the party that provides the information that later serves as the basis 
for an adverse finding, the petitioner cannot then argue that it was unaware of the adverse 
information. 
Accordingly, the instant petition cannot be approved given the petitioner's inability to establish that 
the beneficiary meets the foreign employment eligibility requirement. 
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. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 
128 (BIA 20 13). The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.