dismissed EB-1C Case: Finance

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
identif$ing 22% icietcd to 
preverit c !ear$ cn::/ s!:~i?!ed 
invasion of pe:sonal privacy 
U.S. Citizenship 
and Immigration 
OFFICE: NEBRASKA SERVICE CENTER 
 Date: JUN 2 2 2009 
LIN 07 01 7 53990 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 9 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
hdn.~. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The petitioner subsequently filed a motion to reopen and reconsider, which the director granted, 
while upholding the prior decision denying the petition. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner claims to be a limited liability company engaged in providing financial research and 
support. The petitioner seeks to employ the beneficiary as its chief operations officer. 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 1153(b)(l)(C), as 
a multinational executive or manager. 
The director denied the petition based on the conclusion that the petitioner did not have a qualifying 
relationship with the beneficiary's foreign employer at the time of filing. The director later reiterated 
the same finding in the subsequent decision in response to the petitioner's motion. 
On appeal, counsel disputes the director's conclusion, arguing that the petitioner does not have to 
establish that it has a qualifying relationship with the beneficiary's foreign employer at the time of 
filing so long as it continues to be a multinational entity. 
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 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 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. 
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 which 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. 
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The primary issue in this matter is whether the petitioner continues to have a qualifying relationship 
with the foreign entity that previously employed the beneficiary. 
The regulation at 8 C.F.R. 
 204.5(j)(2) states in pertinent part: 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity; 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
In support of the Form 1-140, the petitioner provided a letter dated October 20, 2006 the petitioner 
claimed that prior to the beneficiary's transfer to the United States as an L-1A nonimmigrant, he was 
employed by its Swiss affiliate "which has since been shut down." 
In a decision dated February 20, 2008, the director denied the petition, concluding that the 
petitioner's qualifying relationship with a qualifying foreign entity ceased to exist when the 
beneficiary's foreign employer was shut down. The director explained that in the context of an 
employment-based immigrant petition, the petitioner must provide evidence to establish that a 
qualifying relationship with the beneficiary's foreign employer existed at the time the petition was 
filed. The petitioner's claim that the foreign entity had been effectively "shut down" at the time of 
filing indicated that there was no longer a qualifying relationship between the beneficiary's foreign 
and U.S. employers. In its subsequent decision dated Jun 10, 2008, the director similarly reasoned 
that when a prior connection between the beneficiary's foreign and U.S. employers is severed, the 
requisite qualifying relationship ceases to exist. 
Counsel disputes the director's finding both on motion and on appeal, asserting that there is no 
statutory requirement that the former foreign entity must be active or in existence at the time of 
filing the Form 1-140. Counsel also points out the petitioner's continued multinational existence in 
that it has ongoing business entities in multiple countries, including the United States. Counsel's 
reasoning, however, is not persuasive. Counsel appears to confuse the issue in the present matter, 
Page 4 
i.e., the continued existence of the beneficiary's employer abroad, with the separate issue of'whether 
the "qualifying entity, or its affiliate, or subsidiary, conducts business in two or more countries, one 
of which is the United States." 8 C.F.R. § 204.50)(2) (definition of "Multinational"). 
In this matter, the AAO recognizes that the petitioner continues to conduct business in two or more 
countries, one of which is the United States. However, the issue here is not whether the petitioner 
meets the definition of multinational under 8 C.F.R. 5 204.50)(2), but whether it maintained (at the 
time the petition was filed) and continues to maintain a qualifying relationship with the separate 
legal entity that employed the beneficiary abroad. As stated above, the current regulations expressly 
state that the petitioner must establish the beneficiary's "prospective employer in the United States is 
the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity" which 
employed the beneficiary abroad. 8 C.F.R. 204.50)(3)(i)(C). The regulation's use of the word "is" 
prescribes that the relationship between the petitioner and the beneficiary's foreign employer must 
exist in the present, i.e., at the time of filing, and it must continue to exist until such time as the 
beneficiary is granted an immigrant visa or adjusts status to that of a permanent resident of the 
United States. The petitioner's burden of establishing eligibility for the benefit sought is not 
discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 
F.2d 1305 (9th Cir. 1984). 
In direct contradiction to the express language in the relevant regulatory provision, counsel's faulty 
reasoning focuses on the petitioner's circumstances prior to the filing of the Form 1-140, thereby 
suggesting that eligibility need not be present at the time of filing so long as the petitioner 
established that it met the relevant regulatory provisions at some other time. This line of reasoning 
suggests that once a qualifying relationship is established as having existed, the petitioner can 
continue relying on that old qualifying relationship for a petition filed in the future, even if the 
relationship ceases to exist at the time of filing, as is the case in the present matter. The AAO 
cannot, however, adopt counsel's interpretation. Precedent case law specifically instructs against 
such logic by expressly requiring that each petitioner establish its eligibility at the time of filing. 
Matter ofKatigbak, 14 I&N Dec. 45,49 (Cornm. 1971). 
The facts presented by the petitioner in this matter indicate that the circumstances that would have 
rendered the petitioner eligible for the immigration benefit sought did not occur contemporaneously 
with the filing of the Form 1-140. Rather, by the time the petitioner filed the Form 1-140, it was no 
longer eligible for the immigration benefit it was seeking by virtue of the legal existence of the 
beneficiary's foreign employer having ceased. It would be factually impossible for the petitioner to 
establish an ongoing qualifying relationship with a foreign entity that no longer exists. 
That being said, counsel puts forth an alternative argument, claiming that "[flactually, the foreign 
entity merged its research and back office operations with both of its preexisting affiliated 
companies," thereby indicating that the beneficiary's foreign employer continues to exist. However, 
the record is devoid of evidence corroborating counsel's claim. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). In fact, even if the petitioner were to establish that another entity 
bought the assets of the beneficiary's original foreign employer after its demise, this alone would not 
Page 5 
establish that the buyer assumed the corporate identity of the original foreign employer. Rather, the 
petitioner would have to establish that the original foreign employer is still in existence at the time 
the immigrant petition is filed, either in an identical corporate form or in some other form by way of 
merger, acquisition, division, or change of name or form. In the present matter, it appears that the 
foreign entity was merely dismantled and that its human resources and other assets were merely 
divided among two affiliate entities that continued their corporate existence. Accordingly, as the 
petitioner did not have a qualifying relationship with the beneficiary's foreign employer at the time 
the Form 1-140 was filed, this petition cannot be approved. 
Furthermore, while not previously addressed in the director's decision, the record does not contain 
documentary evidence to establish that the petitioner satisfies 8 C.F.R. fj 204.5(j)(3)(i)(D), which 
states that the petitioner must establish that it had been doing business for at least one year prior to 
filing the Form 1-140. The regulation at 8 C.F.R. 5 204.5(j)(2) states that doing business means "the 
regular, systematic, and continuous provision of goods andlor services by a firm, corporation, or 
other entity and does not include the mere presence of an agent or office." Although the petitioner 
provided various financial documents, including bank records and a photocopied 2003 tax return, 
neither can be relied upon to determine whether an entity is conducting business on a "regular, 
systematic, and continuous" basis. See id. The petitioner seemingly relies on previously approved 
nonimmigrant petitions for the same beneficiary, indicating that the prior approvals should guide the 
outcome in the present matter. However, each nonimmigrant and immigrant petition is a separate 
record of proceeding with a separate burden of proof; each petition must stand on its own individual 
merits. U.S. Citizenship and Immigration Services (USCIS) is not required to assume the burden of 
searching through previously provided evidence submitted in support of other petitions to determine 
the approvability of the petition at hand in the present matter. The approval of a nonimmigrant 
petition in no way guarantees that USCIS will approve an immigrant petition filed on behalf of the 
same beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior 
nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; 
IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 
724 F. Supp. 1103 (E.D.N.Y. 1989). 
If the initial nonimmigrant petitions were approved based on the same assertions that are contained 
in the current record, the approvals would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of a prior approval that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
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challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd 
345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.