dismissed EB-1C Case: Cybersecurity

U.S. Citizenship 
and Immigration 
Services 
MATTER OFF- INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Admi111istrative Appeals Office 
DATE: DEC.2L2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a cybersecurity company, 1 seeks to permanently employ the Beneficiary as its director 
of quality assurance under the first preference immigrant classification for multinational executives 
or managers. See Immigration and Nationality Act (the Act) section 203(b)(1 )(C), 8 U.S.C. 
§ 1153(b )(1 )(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 Texas Service Center denied the petition, concluding that the record did not 
establish. as required, that the Beneficiary had been employed abroad by a qualifying entity. in a 
managerial or executive capacity. for at least one year during the three years preceding the 
Beneficiary's entry as a nonimmigrant. 2 
On appeal, the Petitioner asserts that the Director erred by considering the Beneficiary's initial entry 
to work for the Petitioner as a nonimmigrant and disregarding subsequent time that the Beneficiary 
spent working abroad. 
Upon de novo 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 continm: to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)( 1 )(C) of the Act. 
The Form 1-140. Immigrant Petition for Alien Worker. must include a statement from an authorized 
otlicial of the petitioning United States employer which demonstrates that the beneficiary has been 
1 
We note that the party named on this decision's cover page acquired the petitioning entit) while the petition \~as 
pending. This party has referred to itself as the original Petitioner's succes~.or in interest, but acknowledges that the 
original petitioning entity ··continues to exist as a wholly-owned subsidiary." We therefore consider the appellant to be a 
parent entity acting on behalf of its subsidiary, rather than as a substitute petitioner or successor in interest. 
2 The Director initially denied the petition for abandonment but later reopened the proceeding on the Petitioner's motion. 
.
Mal!er (?rF- Inc 
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 ft1r 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(i)(3 ). 
If a beneficiary is working in the United States tor the petitioner as a nonimmigrant at the time of tiling, 
then the petitioner must demonstrate that 
a qualifying related entity emplo yed the beneficiary abroad for 
at least one year in a managerial or executive capacity in the three years preceding the beneficiary" s 
entry as a nonimmigrant. S'ee 8 C.F.R. § 204.5(j)(3)(i)(B). 
II. EMPLOYMENT ABROAD 
The Director did not dispute the managerial nature of the Beneficiary ' s employment abroad, but 
found that the Beneficiar y had accrued less than a year of qualifying experience before entering the 
United States 
as a nonimmigrant to work ft1r the Petitioner and thus did not satisfy the "one-in-thre e .. 
requirement. The Petitioner assetis that the Director should have counted subsequent trips abroad by 
the Beneficiary. We disagree with the Petitioner. for the reasons explained below . 
The Beneficiary worked tor the subsidiary in Pune. India, ft1r 311 days. and subsequently entered the 
United States on an H-1 B nonimmigrant visa in order to work tor the Petitioner in the United States 
on September 24, 2014. 3 The Petitioner stated that the Beneficiary began working in its 
office on October 1, 2014, '·continuing in the role of Director of Quality Assurance," and his job 
responsibilities as Director required him to return to India for certain periods. These periods spent 
abroad subsequent to his September 2014 arrival. and prior to the tiling of this petition in October 
2015, are as follow s: 
• March 23, 2015 , through May 2 L 20 15; and 
• July 4, 2015, through August 19, 2015 
The Petitioner documented seven of the Beneficiary's entries into the United States, six of which 
occurred between his hiring in November 2013 and the filing of the petition in October 2015. Prior 
to his September 2014 H-1 B entry, the Beneficiary briefly visited the United States in October 2011 , 
January 2014 , and August 2014. 
The Director concluded that the cutoff point tor the Beneficiary's employment abroad was his 
September 2014 entry, because prior entries were for brief visits rather than for employment. and the 
Beneficiary did not effectively relocate to the United States during his earlier trips. Regarding the 
Beneficiary's later travel , the Director concluded '·the beneficiary traveled abroad while still 
maintaining his nonimmigrant status as an employee of the U.S. petitioner'' and the Director did not 
count that time spent abroad towards the one-in-three requirement. 
·' According to the Petitioner, all subsequent entries to the United States by the Beneficiary have been under this H-1 B 
visa. 
2 
Matter ofF- Inc 
On appeal. the Petitioner states: "The statute is luminously clear: the [Beneficiary] must have been 
employed abroad for one year prior to thefiling olthe [petition]." The Petitioner maintains that the 
Beneficiary's 'job responsibilities as Director have required him to return to India" on occasion, and 
that the Beneficiary's work during those periods meets every requirement for employment abroad 
with the Petitioner or a related company. The Petitioner also notes that the Beneficiary was not 
maintaining H-1 B status while outside the United States, because nonimmigrant status by definition 
applies only while present as a nonimmigrant. 
The Petitioner states that neither the statute nor the regulations offer any support for ·'the Director's 
cramped frame of reference,'' within which the Beneficiary's September 2014 entry as an H-18 
nonimmigrant .. marks a point of no return, beyond which the beneficiary can no longer accrue or 
aggregate [qualifying] employment'· abroad. 
The Petitioner avers that the Beneficiary's travel during these two periods to India before the 
petition's tiling date in October 2015 should count toward the Beneficiary's employment abroad 
because the Beneficiary was performing work at the foreign company's location. The Petitioner 
claims that this period of I 05 days abroad in addition to the Beneficiary's employment for 3 I I days 
before his September 2014 H-1 B entry. '·comfortably satisfies the [one-in-three requirement] to the 
tune of 416 days.,. 
We must consider the context of the phrase ·'entry as a nonimmigrant:· Statutes and regulations 
must be read as a whole, and interpretations should be consistent with the plain purpose of the Act. 
See generally Delensor v. Meissner, 201 F.3d 384. 387 (5th Cir. 2000). The wrong interpretation 
could lead to unintended results. !d. at 388. 
We agree with the Petitioner that the regulatory phrase .. entry as a nonimmigrant"' does not 
necessarily refer to a given beneficiary's first-ever nonimmigrant entry. because that might include 
an irrelevant visit (for example. as a tourist or student) that took place years before a given 
beneficiary began working for the petitioning U.S. employer. The regulations specify an .. entry as a 
nonimmigrant"' under which a beneficiary is .. working for·· a qualifying entity. See 8 C.F.R. 
§ 204.5(j )(3 )(i )(B). 
But contrary to the Petitioner's assertions. we also cannot rigidly interpret the phrase .. entry as a 
nonimmigrant'" to mean a beneficiary's most recent entry before the tiling of the immigrant petition. 
As stated in the preamble to the proposed rule which introduced the regulations governing immigrant 
petitions for multinational manager and executives ... nonimmigrant managers or executives who 
have already been transferred to the United States should [not] be excluded from this classification:· 
56 Fed. Reg. 30703, 30705 (July 5. 1991). The same paragraph included a reference to .. the three 
years preceding admission as a nonimmigrant manaJ;er or executive.fhr a qualilyinJ; entity, .. further 
recognizing a distinction between different circumstances of admission. 
Matter ofF- Inc 
To calculate experience abroad based on the most recent entry would not be consistent with this 
intent. A short trip abroad would disqualify a nonimmigrant vvho had worked more than two 
continuous years in the United States. Such an individual cannot have accrued at least a year of 
employment abroad during the three years preceding the re-entry after that trip. 
Because '·entry as a nonimmigrant" does not necessarily refer to a given beneficiary's first-ever 
entry, or the last one before the petition's filing date, we must consider the context and purpose of 
each entry. We agree with the Director that the Beneficiary's initial H-1 B entry on September 24. 
2014, is the relevant entry for the purposes of this petition. It is the only entry that corresponds to a 
change in the Beneficiary's employment and nonimmigrant status. The Beneficiary entered the 
United States three more times before the tiling date. but each time the Beneficiary was simply 
continuing his existing employment. 
In the denial notice, the Director emphasized that the foreign subsidiary paid the Beneficiary until 
September 2014. and the Petitioner has paid the Beneficiary since that time. The Petitioner 
maintains that this change in circumstances does not disqualify the Beneficiary. because the 
Beneficiary was unquestionably employed abroad during the periods in question. and the statute 
permits employment abroad through the Petitioner itself rather than through a related foreign entity. 
Viewed in isolation, the Beneficiary's compensation is not a deciding factor in the case. It takes on 
greater significance when seen in context with the totality of the record. The Beneficiary's entry 
into the United States on September 24, 2014. was qualitatively different fi'om his other entries 
before and after that date. On that date, the Beneficiary entered the United States not for a brief visit 
or to resume an existing and unchanged arrangement, but to commence employment in the United 
States under a newly-issued. employment-based nonimmigrant visa. The Beneficiary's September 
2014 arrival marked his relocation to the United States as his principal place of work and residence 
and the beginning of a nonimmigrant employment relationship with the Petitioner which continued. 
unaltered, at the time of tiling. The Beneficiary's job title remained the same but his addition to the 
U.S. Petitioner's payroll coincided with a non-trivial change in his employment. 
The Beneficiary's 2015 return visits to India, while sometimes lasting several weeks. marked short­
term assignments rather than a resumption of his pre-2015 employment abroad. In contrast. when 
the Beneficiary re-entered the United States in May and August 2015, he was continuing what was 
then the existing default arrangement of employment and residence in the United States. with no 
material change to his prior nonimmigrant status. 
The Beneficiary's employment abroad for a qualifying organization took place for less than one year 
when he entered the United States to work for the petitioning entity. Therefore, the Beneficiary 
cannot qualify for the classification sought under this petition. 4 
1 
This finding does not preclude eligibility under a new petition at a future time. following further employment abroad. 
4 
Matter ofF- Inc 
III. CONCLUSION 
The Petitioner did not establish that a qualifying entity employed the Beneficiary abroad for at least 
one year during the three years preceding the Beneficiary's entry as a nonimmigrant. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-Inc. ID# 714930 (AAO Dec. 21. 2017)