dismissed EB-1C Case: Diamond Purchasing

U.S. Citizenship 
and Immigration 
Services 
In Re: 15368304 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 11, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, describing itself as a diamond purchasing business, seeks to permanently employ the 
Beneficiary as its chief executive officer 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. § 1153(b)(l)(C). 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish, as required, that the Beneficiary would be employed in a managerial or executive capacity 
in the United States. In addition, the Director determined the Petitioner did not demonstrate that the 
Beneficiary had been employed overseas in a managerial or executive capacity for one year in the 
three years preceding his entry into the United States as a nonimmigrant. The Petitioner later filed a 
motion to reopen and a motion to reconsider. The Director granted the motion but concluded that the 
petition would remain denied because the Petitioner did not establish the Beneficiary's eligibility for 
the benefit sought. The matter is now before us on appeal. 
On appeal, the Petitioner asserts its business is sufficiently complex and that it generates substantial 
revenue to support the Beneficiary is a qualifying executive capacity. Likewise, the Petitioner also 
contends that the Beneficiary was employed in a similar executive capacity abroad for the required 
one year in the three years preceding his entry as a nonimmigrant. 
Upon de nova review, we will dismiss the 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. The 
Petitioner did not sufficiently establish that the Beneficiary was employed in a managerial or executive 
capacity overseas for one year in the three years preceding his entry into the United States as a 
nonimmigrant. Since this identified basis for denial is dispositive of the Petitioner's appeal, we decline 
to reach and hereby reserve the Petitioner's appellate arguments regarding whether Beneficiary would 
be employed in a managerial or executive capacity in the United States and whether his former position 
abroad was in a managerial or executive capacity. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible) . 
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 )(1 )(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(i)(3) . 
II. EMPLOYMENT OVERSEAS FOR ONE YEAR IN THE THREE YEARS PRECEDING 
ENTRY AS A NONIMMIGRANT 
The sole issue we will address is whether the Beneficiary was employed overseas for the required one 
year in the three years preceding his entry into the United States as a nonimmigrant. The regulation 
at 8 C.F.R. § 204 .5(i)(3)(i) states that the Petitioner must demonstrate that: 
(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[ ... ] 
In denying the petition on this ground, the Director pointed to United States Citizenship and 
Immigration Services (USCIS) records listing the following arrivals and departures for the Beneficiary 
during the three years preceding his entry into the United States as a LlA multinational executive or 
manager nonimmigrant (LlA status) on January 29, 2017: 
• December 7, 2013 ( arrival in B 1 nonimmigrant temporary business visitor status (B 1 
status)) 
• April 12, 2014 (departure from the United States (departure)) 
• April 28, 2014 (arrival in Bl status) 
• August 31, 2014 (departure) 
• September 16, 2014 (arrival in Bl status) 
• June 26, 2015 (departure) 
• July 31, 2015 ( arrival in B2 nonimmigrant visitor status) 
• November 16, 2015 (departure) 
• December 5, 2015 (arrival in Bl status) 
• May 22, 2016 (departure) 
• June 1, 2016 ( arrival in B 1 status) 
• July 24, 2016 (departure) 
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• January 29, 2017 (arrival in LIA status) 
In denying the petition, the Director pointed to these users records and concluded that the Beneficiary 
had been in the United States "for [the] majority of time period [from] January 29, 2014 through 
January 29, 2017." The Director determined that the Beneficiary had not been "physically present at 
the company abroad for a period of 365 days or more," and in turn, that he did not met the regulatory 
requirement to have been employed overseas for at least one year in the three years preceding his entry 
as a LlA nonimmigrant. 
On appeal, the Petitioner states that the Beneficiary "had to stay for a longer period in the United 
States" to form a subsidiary company and establish the foreign employer's sales office. The Petitioner 
indicates that the Beneficiary was "required" to come to the United States on behalf of the foreign 
employer "for auction and confirming purchase orders" and to "finalize purchase[ s] on behalf of the 
parent company." The Petitioner points to the users Policy Memorandum PM-602-0167, Satisfj:ing 
the L-1 I-Year Foreign Employment Requirement; Revisions to Chapter 32.3 of the Adjudicator's 
Field Manual (AFM) 4 (Nov. 15, 2018) and asserts that this memorandum is not applicable to the 
current matter since it was issued after the date the petition was filed in October 201 7. More 
specifically, the Petitioner contends that this users policy memorandum "should not be applied to 
this matter, as it will be detrimental to this I-140 [petition] ... as the earlier Immigration rules and 
regulations were applicable when this petition was filed." Lastly, the Petitioner states that the 
Beneficiary "had a legitimate reason for the long stay ... which users should take into consideration, 
as it was not in his control." 
First, the Petitioner does not clearly discuss on appeal what impact, in any, the mentioned users 
Policy Memorandum has on the current matter as this memorandum provides guidance related to L-1 
nonimmigrant petitions, not the immigrant petition at issue in this matter. Id. Further, the Petitioner 
does not articulate "what earlier Immigration rules and regulations were applicable when this petition 
was filed," nor how the submitted evidence establishes the Beneficiary's required one year of foreign 
employment overseas in the qualifying three period from January 29, 2014 through January 29, 2017. 
The applicable regulations are clear, the Petitioner must demonstrate that the Beneficiary was 
employed "overseas [emphasis added]" for one year in the three years preceding his entry as a LlA 
nonimmigrant. As such, the time the Beneficiary spent in the United States, even if performing duties 
for the foreign employer, does not count towards the minimally required one year of foreign 
employment overseas during the applicable three-year qualifying period. See 8 e.F.R. § 
204.5(j)(3)(i)(B). 
users records, which the Petitioner does not dispute, clearly reflect that the Beneficiary was not 
employed overseas for the required one year in the three years preceding his entry as a LIA 
nonimmigrant. As noted by the Director, users records show that the Beneficiary spent far less than 
one year abroad during the qualifying three-year period. Specifically, the Beneficiary spent 893 days 
in the United States in Bl/B2 nonimmigrant status and only 272 days overseas from January 29, 2014 
through January 29, 201 7. Although we appreciate that the Beneficiary may have had legitimate 
business reasons to be in the United States for well over 800 days during the three-year qualifying 
foreign employment period, these reasons or whether they were under the Beneficiary's "control" do 
not absolve the Petitioner from fulfilling an explicit regulatory requirement to demonstrate his 
eligibility for the benefit sought. 
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Therefore, we agree with the Director's conclusion that the Petitioner did not establish that the 
Beneficiary was employed overseas as an executive or manager for the required one year in the three 
years preceding his entry as an LIA nonimmigrant. 
ORDER: The appeal is dismissed. 
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