dismissed EB-1C Case: Dental Services

U.S. Citizenship 
and Immigration 
Services 
In Re : 11827706 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 5, 2022 
Form I-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner, a teeth-whitening service, seeks to permanently employ the Beneficiary as a manager 
under the first preference immigrant classification for multinational managers or executives. 
Immigration and Nationality Act (the Act) section 203(b)(l )(C), 8 U.S.C. § 1153(b )(l)(C). 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish, as required, that: (1) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; (2) the Beneficiary has been employed abroad in a managerial or executive capacity; 
(3) the Petitioner will employ the Beneficiary in the United States in a managerial or executive 
capacity; (4) the Petitioner has the ability to pay the Beneficiary's proffered wage; and (5) the 
Petitioner has been doing business for at least one year prior to the petition's filing date. 
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. LAW 
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 orto its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form I-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. ANALYSIS 
In June 2017, the present Petitioner filed a Form I-140 petition on the Beneficiary's behalf, with the 
annotation that the 2017 petition seeks to amend a prior2012 petition filed by anotheremployer. 1 The 
Director denied the 201 7 petition in April 2020, citing multiple disqualifying deficiencies. 
The Petitioner's appellate brief consists entirely of arguments relating to the revocation of the approval 
of the unrelated 2012 petition, and the denial of the Beneficiary's adjustment application. We will 
address those arguments further below, after discussing the merits of the petition before us on appeal. 
The Petitioner does not address or contest any of the Director's substantive conclusions regarding 1he 
merits of its own petition. We conclude, therefore, that the Petitioner has waived and abandoned those 
issues. 2 In the interest of clarity, we will briefly explain why the present petition cannot be approved 
on its merits, by addressing two of the five stated grounds for denial. Either of those grounds, by itself, 
suffices to warrant denial of the petition. 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifying relationship with the Beneficiary's foreign employer, by showing that the 
Beneficiary's foreign employer and the proposed U.S. employer are the same entity or related as a 
"parent and subsidiary" or as "affiliates." See generally section 203(b )(1 )(C) of the Act; 8 C.F.R. 
§ 204.5(j)(3)(i)(C). 
The Beneficiary's last claimed employment abroad was with from 2 00 8 until 
the Beneficiary entered the United States in March 2010. The Petitioner does not establish, or claim, 
any shared ownership or qualifying relationship between itself andc=] The Petitioner does not 
establish that it operates outside the United States, or identify any foreign employer with which it has 
a qualifying relationship. The undisputed lack of qualifying business operations abroad is grounds for 
denial of the petition; a U.S. employer must conduct business in both the United States and at least 
one other country in order to qualify as "multinational" for the purposes of the classification sought 
See 8 C.F.R. § 204.5(j)(2). 
Likewise, the Beneficiary must have been employed abroad by a qualifying employer for at least one 
year during the three years preceding his entry into the United States. 8 C.F.R. § 204.5(j)(3)(B). As 
discussed above, the Petitioner has not established thatO is a qualifying employer for the purposes 
of the present petition. Furthermore, the Beneficiary entered the United States in March 2010, and the 
petitioning entity did not exist until August 2013. This gap of more than three years is inherently 
disqualifying, even if qualifying employment abroad had preceded it. See Matter of S-P-, Inc., 
1 As we will discuss in more detail further below, another employer filed a Form 1-140 immigrant petition on the 
Beneficiary's behalf in 2012. seeking to classify the Beneficiary as a multinational manager or executive. The Director 
approved that petition in 2013, and revoked the approval in 2016. 
2 See Matter of R-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012)(stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. US. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-­
CV-2 7312011, 2011WL4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandonedashe did not 
raise them on appeal to theAAO). 
2 
Adopted Decision 2018-01 4 (AAO Mar. 19, 2018). The Beneficiary cannot qualify under the 
classification sought until he accrues at least another year of qualifying employment abroad. 
Because the Petitioner and the Beneficiary do not meet basic eligibility requirements, the instant 2017 
petition before us on appeal cannot be approved. Therefore, we will dismiss the appeal. 
As noted above, the Petitioner does not dispute the grounds for denial of its petition. Instead, the 
Petitioner seeks to use its appeal, and the underlying petition, as a vehicle for the Beneficiary to pursue 
benefits under a prior petition filed in 2012, the approval of which was revoked in 2016. 
III. PRIOR FILINGS AND ADDITIONAL ARGUMENTS 
filed a Form I-140 immigrant petition on the Beneficiary's 
behalf in 2012, seeking to classify the Beneficiary as a multinational manager or executive through an 
offer of employment with I I That petition was approved in 2013, and the Beneficiary filed Form 
I-485, Application to Register Permanent Residence or Adjust Status. In November 2013, shortly 
after the Beneficiary filed his Form I-485 adjustment application, the present Petitioner notified U.S. 
Citizenship and Immigration Services (USCIS) in a letter that it was "now sponsoring" the 
Beneficiary, and thatthe Beneficiarywould avail himself of the portability provisions of section 204(j) 
of the Act, 8 U.S.C. § l 154(j), which allow the beneficiaries of some employment-based immigrant 
petitions to change employers under certain circumstances. 
The Director revoked the approval of 12012 petition in December 2016, citing several grounds, 
with a finding of willful misrepresentation of a material fact. The revocation led to the denial of the 
Beneficiary's adjustment application, also in December 2016. In June 2017, the Beneficiary filed a 
motion to reopen his adjustment application. In conjunction with that motion, the present Petitioner 
asserted that it did not receive either the notice of intent to revoke (NOIR) or the notice ofrevocation 
(NOR) related tol I separate 2012 petition. 3 In denying the motion, the Director stated that the 
new employer is not an affected party with standing to appeal or otherwise contest the revocation of 
the approval ofl I 2012 petition. 4 
The Petitioner asserts that its 201 7 petition sought to "amend"I I 2012 petition, the approval of 
which had already been revoked in 2016. The portability provisions of section 204(j) of the Act relate to 
the adjustment application. A beneficiary's request to port to new employment does not require or allow 
a new employer to formally file a new I-140 petition to "amend" a previously filed I-140. 5 The Petitioner 
cited no provision to permit a new employer to amend a different employer's petition after its revocation. 
3 Those notices were sent tol I address of record, and returned as undeliverable. The present Petitioner stipulates that 
no longer exists. 
4 Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), grants standing to the beneficiary of an 
employment-based immigrant petition under certain circumstances. That policy guidance was not yet in effect a tthetime 
of the December 2016 revocation and the Beneficiary's June 201 7 motion to reopen. Subsequent employers of 
beneficiaries who have ported or sought to port, are not affected parties under Department of Homeland Security 
regulations and may not participate in visa revocation proceedings. USCIS Policy Memorandum PM-602-0149, Matter 
of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. ll, 2017) I (Nov. 11, 2017), https://www.uscis.gov/legal­
resources/policy-memoranda. 
5 The Petitioner does not claim or demonstrate that it is successor-in-interest, whichmighthave established standing 
to amendc=]2012 petition under some circumstances. 
3 
Generally, a beneficiary may not port to new employment based on a petition that has been revoked 
for cause. As discussed in binding precedent, the qualifying immigrant visa petition "must have been 
filed for an alien who is 'entitled' to the requested classification and that petition must have been 
'approved' by a USCIS officer pursuant to his or her authority under the Act." Matter of Al Wazzan, 
25 I&N Dec. 359,367 (AAO 201 O); see also Herrera v. USCIS, 571 F.3d 881 (9th Cir. 2009). An 
approval is revoked for "good and sufficient cause" under section 205 of the Act when "the evidence 
of record at the time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant ... denial." Matter of Ho, 
19 I&N Dec. 582, 590 (BIA 1988). While the current regulations provide limited exceptions for 
revocations based on withdrawal or the termination of an employer's business, both exceptions 
specifically exclude revocations based on other grounds. See 8 C.F.R. § 205 .1 ("If a petitioning 
employer's business tenninates 180 days or more after petition approval, or 180 days or more after an 
associated adjustment of status application has been filed, the petition remains approved unless its 
approval is revoked on other grounds." (emphasis added)) ( effective Jan. 17, 2017). 
The Petitioner asserts, on appeal, that the Beneficiary became an affected party for the 2012 petition 
once he stated his intention to port to a new employer. The appeal before us, however, concerns the 
separately filed 2017 Form I-140 petition, not the 2012 Form I-140 petition, or the 2013 Fonn I-485 
adjustment of status application. Neither the appeal nor the underlying 2017 Form I-140 petition 
represents a valid opportunity for the Petitioner ( or the Beneficiary) to contest the revocation of an 
earlier Form I-140 petition filed by a different employer. 6 
The present petition must stand on its own merits, and the Petitioner and the Beneficiary must each 
meet all applicable eligibility requirements at the time of its filing in 2017. The 2017 petition and its 
appeal cannot be considered as an extension ofl I 2012 petition. 
IV. CONCLUSION 
The Petitioner has not shown, or attempted to show, that the 2017 petition is approvable on its own 
merits. The Petitioner filed the petition, and the subsequent appeal, solely to contest the disposition 
of another employer's petition filed years earlier, which is not before us and regarding which the 
Petitioner lacks standing. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
6 To the limitedextenttowhichtheBeneficiazymaybe an affected partytothe2012 petition,such standing would only allow 
the Beneficiary an opportunity to challenge the original revocation in that proceeding through a timely appeal or a motion to 
reopenorreconsider, orresponse toothernoticewherestandinghasbeenproperlydetennined. 8 C.F.R §§ 103.3(a)(l)(iii)(B), 
103 .5(aX1 ). Nor would thepresentPetitionerretain the priority date of the 2012 petitionbasedonitsrevocationwitha finding 
of material misrepresentation. See 8 C .F.R. § 204.5( e )(2). We note, nevertheless, that the Petitioner cites USC IS Policy 
Memmandum PM-602-0152, Guidance on Notice to, and Standingfor, AC2 l Beneficiaries about 1-140 Approvals Being 
Revoked After Matter of V-S-G-Inc., (Nov. 11, 2017), http:/ /www.uscis.gov/legal-resources/policy-memoranda, which states 
thatNOIRs and NORs should be issued to porting beneficiaries. This guidance, however, did not take effect until November 
11, 2017, after the 2016revocationin this matter. Id. at 5. 
4