dismissed EB-1C Case: Electronics And Merchandise Wholesale/Retail

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.: Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: JUL 1 1 2005 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuapt 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. 
4' P, v5e ;+&(;al, 
/ obert P. Wiemann, Director 
6 Administrative Appeals Ofice 
DISCUSSION: The Director, California Service Center, initially approved the employment-based visa 
petition. Upon subsequent review of the record, the director issued a notice of intent to revoke and ultimately 
revoked approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner is an organization established in the State of California in June 1995. It claims to import, 
export, wholesale, and retail electronic products and general merchandise. The petitioner seeks to employ the 
beneficiary as its general manager. 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. 5 1 153(b)(l)(C), as a multinational executive or manager. 
On October 5, 2004, the director issued a notice of intent to revoke approval of the petition. The director 
determined that the petitioner had not established: (1) that the beneficiary had been employed abroad with a 
qualifying organization in one of the three years prior to entering the United States as a nonimmigrant in a 
managerial or executive capacity; (2) that the beneficiary would be employed in a managerial or executive 
capacity for the United States entity; (3) a qualifying relationship with the beneficiary's foreign employer; or, 
(4) its ability to pay the beneficiary the proffered wage. The director noted that good and sufficient cause 
existed to revoke the petition and afforded the petitioner 30 days to offer evidence in support of the petition 
and in opposition to the proposed revocation. 
On October 24, 2004, counsel for the petitioner in rebuttal to the notice of intent to revoke observed that the 
director had not addressed "the fact that the beneficiary is currently an applicant for adjustment of status 
within the United States." Counsel, relying on Firstland Int'l, Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004), 
asserted that the Attorney General was not authorized to revoke a petition where the alien was already in the 
United States. 
On November 4, 2004, the director issued his revocation decision, observing that the documentation 
submitted in rebuttal to Citizenship and Immigration Services (CIS) notice of intent to revoke did not 
overcome the grounds for revocation. 
On appeal, counsel again cites Firstland lnt'l, Inc. v. Ashcroft, a decision issued by the United States Court of 
Appeals for the Second Circuit on August 2, 2004. Counsel asserts that CIS does not have the authority to 
revoke approval of a previously approved immigrant visa petition when the alien is already inside the United 
States. Counsel does not dispute the director's determination that the beneficiary is not eligible for this visa 
classification on appeal. 
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): 
Page 3 
(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. 
The language of the statute is specific in limiting this provision to only those executives and 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 that 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. See 8 C.F.R. 
5 204.56)(5). 
The AAO acknowledges the recent opinion, Firstland Int'l, Inc. v. Ashcroft, and that in that opinion, the court 
interpreted the third and fourth sentence of section 205 of the Act, 8 U.S.C. fj 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's reliance on this opinion and assertion that the district director does not have the authority to revoke 
approval of a petition once the beneficiary is in route or in the process of adjusting status is not persuasive. 
In addition, according to the record of proceeding, the petitioner is located in the State of California; thus, this 
matter did not arise in the Second Circuit and Firstland was never a binding precedent. 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. 
Generally, the director's decision to revoke the approval of a petition will be affirmed, notwithstanding the 
submission of evidence on appeal, where a petitioner fails to offer a timely explanation or rebuttal to a 
properly issued notice of intention to revoke. See Matter of Arias, 19 I&N Dec. 568, 569 (BIA 1988). 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where 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 such denial. 
Matter ofHo, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N Dec. 450 (BIA 1987)). 
CIS regulations affirmatively require an alien to establish eligibility for an immigrant visa at the time an 
application for adjustment of status is filed. See 8 C.F.R. fj 245.1(a). If the beneficiary of an approved visa 
petition is no longer eligible for the classification sought or if the petition was approved in error, the director 
may seek to revoke his approval of the petition pursuant to section 205 of the Act, 8 U.S.C. 5 1155, for "good 
and sufficient cause." Notwithstanding the CIS burden to show "good and sufficient cause" in proceedings to 
revoke the approval of a visa petition, the petitioner bears the ultimate burden of establishing eligibility for 
the benefit sought. The petitioner's burden is not discharged until the immigrant visa is issued. Tongatapu 
Woodcraft ofHawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
In this matter, the director raised four separate issues in the notice of intent to revoke, based on the eligibility 
requirements set by the applicable statute and regulations. See generally, section 203(b)(l)(C) of the Act; 
8 C.F.R. fj 204.56). The director informed the petitioner that the record of proceeding: (1) did not contain 
substantive evidence that the beneficiary had been employed in a managerial or executive capacity for the 
foreign entity for one year prior to the beneficiary's entry into the United States as a nonimmigrant; (2) did not 
contain a comprehensive description of the beneficiary's duties for the United States entity; (3) did not 
demonstrate that a qualifying relationship exists with the overseas company, and (4) did not demonstrate the 
petitioner's ability to pay the proffered wage. 
Based on the record of proceeding, the director's initial approval of this petition was contrary to the statute and 
plainly in error.' Here, the petitioner failed to offer substantive evidence in explanation or rebuttal to the four 
1 The AAO notes that the director's decision contains confusing comments regarding the petitioner's ability to 
pay the beneficiary's proffered annual wage of $24,000 when the petition was filed and continuing until the 
beneficiary's status could be adjusted. The AAO observes that the record contains the petitioner's Internal 
issues raised in the director's properly issued notice of intention to revoke. Thus, the director's decision will be 
affirmed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Revenue Service (IRS) Forms 1120 for the 1998 and 1999 years and the 2000 IRS Form W-2, Wage and Tax 
Statement, issued by the petitioner to the beneficiary. These IRS Forms demonstrate that the petitioner had 
the ability to pay the proffered wage in 1998, 1999, and 2000. However, as the record does not contain 
evidence of the petitioner's continuing ability to pay the beneficiary the proffered wage and neither counsel 
nor the petitioner addressed this issue in rebuttal, the AAO cannot conclude that the petitioner has overcome 
the grounds of revocation on this issue.