dismissed EB-1C Case: Fragrance Distribution

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER Date: -, %. ,. - 
EAC-02-026-52707 A'J * d ,\ ;; 
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. 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. 
/ lfobert P. Wiemann, Director 
I;& Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, initially approved the employment-based petition. 
Upon subsequent review, the director properly 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 a privately-held corporation, organized for the purpose of distributing brand name fragrance 
products. The petitioner claims that it is an affiliate of located in 
Markham, Canada. It seeks to employ the beneficiary as its President. 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 initially approved the petition on November 26, 2001. Upon subsequent review, the director 
observed that: (1) the petitioner ceased doing business over two months prior to approval of the petition; (2) 
the beneficiary has not worked for the petitioner since the petitioner ceased doing business; (3) a second 
company owned by the beneficiary, for which he claims to work, has become inactive; and (4) it appears that 
the beneficiary is not currently working for any business entity in the United States. The director issued a 
notice of intent to revoke on March 3, 2004, affording the petitioner an opportunity to offer evidence in 
support of the petition and in opposition to the proposed revocation. 
On April 1, 2004, the petitioner's former counsel asserted that, despite the fact that the beneficiary's second 
business closed due to a fire, the beneficiary continued to perform the duties of an executive on behalf of the 
company. On August 4, 2004, the petitioner's former counsel submitted a second letter to correct several 
dates in the initial response, and to report that the beneficiary continued to act as an executive and manager 
despite the lack of a liquor license for his liquor store. Upon review of the rebuttal to the notice of intent to 
revoke, the director revoked the approval of the petition on September 20, 2004, determining that the 
petitioner's response confirmed that the beneficiary was not working for the petitioner or the beneficiary's 
second business. 
On appeal, the petitioner's current counsel asserts that the revocation decision is prohibited by section 205 of 
the Act, 8 U.S.C. 5 1155 (2003), as interpreted by the United States Court of Appeals for the Second Circuit 
in Firstlnnd Int'l, Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004). 
" Page 3 
into the United States under this bparagraph, has been employed 
for at least 1 year by a firm or co or other legal entity or an 
affiliate or subsidiary thereof to enter the United 
States in order to continue to the same employer or 
to a subsidiary or affiliate that is managerial or 
executive. 
The language of the statute is specific in limiting this sion to only those executives and managers who 
have previously worked for the firm, corporation or legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for me entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or No labor certification is required for this 
classification. The prospective employer in the furnish a job offer in the form of a 
statement that indicates that the alien is to be States in a managerial or executive 
capacity. Such a statement must clearly by the alien. See 8 C.F.R. 
§ 204.5(j)(5). 
Moreover, by itself, the director's realization that a petition wa incorrectly approved is good and sufficient cause 
for the issuance of a notice of intent to revoke an immigrant p titiom. Matter of Ho, 19 I&N Dec. 582, 590 (BIA 
1988). Regarding the revocation on notice of an immigrant etition under section 205 of the Act, the Board of 
Immigration Appeals (BIA) has stated: 1 
CIS regulations affirmatively require an alien to establish 
application for adjustment of status is filed. See 8 C.F.R. 8 
petition is no longer eligible for the classification sought, thz 
petition pursuant to section 205 of the Act, 8 U.S.C. 1155, 
the CIS burden to show "good and sufficient cause" in 
the petitioner bears the ultimate burden of establishing 
burden is not discharged until the immigrant visa is issued. 
736 F.2d 1305 (9th Cir. 1984). 
In Matter of Estime, . . . this Board stated that a noti e of intention to revoke a visa petition is 
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eligibility for an immigrant visa at the time an 
245.1(a). If the beneficiary of an approved visa 
director may seek to revoke his approval of the 
for "good and sufficient cause." Notwithstanding 
proc~edings to revoke the approval of a visa petition, 
eligibility for the benefit sought. The petitioner's 
Trongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 
- Page 4 
I 
I 
The primary issue in this proceeding is whether the s revocation decision is prohibited by section 205 
of the Act, 8 U.S.C. $ 1155 (2003). 
In her brief, counsel draws the AAO's attention to a Firstland Znt'l, Inc. v. Ashcroft, 377 F.3d 
at 127, issued by the United States Court of Circuit on August 2, 2004. In that 
opinion, the court in Firstland interpreted the of section 205 of the Act, 8 U.S.C. 
3 1155 (2003), to render the revocation of an ineffective where the beneficiary 
of the petition did not receive notice of the his journey to the United stat&. 
Firstland, 377 F.3d at 130. Counsel asserts must be applied to the present 
matter and accordingly, CIS may not revoke did not receive notice of the 
revocation before departing for the United States when the director 
issued the revocation.' 
According to the Form G-28 submitted on appeal, the petiti ner lives in Herkimer, New York; thus, this case 
did arise in the Second Circuit. Although this case did ari in the Second Circuit, Firstland is no longer a 
binding precedent. 
On December 17, 2004, the President signed the Intelligen Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 Specifically relating to this matter, section 
5304(c) of Public Law 108-458 amends section 205 of by striking "Attorney General" and inserting 
"Secretary of Homeland Security" and by striking the Section 205 of the Act now reads: 
The Secretary of Homeland Security may, at any ime, for what he deems to be good and 
sufficient cause, revoke the approval of any petitio approved by him under section 1154 of 
this title. Such revocation shall be effective as of th f date of approval of any such petition. 
Furthermore, section 5304(d) of Public Law 108-458 es that the amendment made by section 5304(c) 
took effect on the date of enactment and that the of section 205 applies to revocations under 
section 205 of the Act made before, on, or the amended statute specifically 
applies to the present matter and counsel's 
The director initially approved the present petition on 26, 2001. On January 31, 2002, the 
beneficiary filed a Form 1-485, Application to Register Pe or Adjust Status. On October 22, 
2003, the director issued correspondence to the evidence in support of the 
Form 1-485 application. In response, on submitted a letter dated 
November 3, 2003 in which he indicated due to the September 
11, 2001 terrorist attacks in New York business, a liquor 
store, was damaged due to an be completed in 
November 2003. Based on this notifying 
the petitioner of CIS'S intent to 
stated the following: 
The AAO notes that counsel failed to address the director's 
discussed below. 
It has now come to the attention of this office the beneficiary is not working for the 
instant petitioning entity for which he was . . . . [The beneficiary] admits that the 
business of the instant petitioning entity was majority owner and for which he 
received this service's approval was wake of the terrorist attacks of 
September 11, 2001, in New York frame more than two-and-a-half 
months prior to the approval of the a second company of which he 
claims ownership and inactive due to a recent 
conflagration. currently working for any 
business entity in the United States. 
grounds for revoking approval of the petition, as 
In a response dated April 1,2004, the petitioner's prior co sserted that, on or about August 10,2001, the 
petitioner filed an additional Form 1-129, Petition for immigrant Worker, seeking to classify the 
beneficiary as an L-1 intracompany transferee and provi rmation about the beneficiary's liquor store. 
Counsel submitted documentation to show that the bene quor store was damaged by fire on or about 
April 19,2003. Counsel asserted that, despite the fact eficiary's liquor store closed due to the fire, 
he continued to perform the duties of an executive o the company. Counsel indicated that the 
beneficiary intended to reopen his store in "late [S] 04. Counsel did not address whether the 
petitioner continued to operate after the September 11 st attacks in New York City. On August 6, 
2004, counsel submitted a second letter to correct se the initial response, and to report that the 
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that, according to the opinion in Firstland Int'l, Inc. v. As crojFt, 377 F.3d 127 (2d Cir. 2004), the director 
lacks authority to revoke the present petition. As discussed counsel's argument no longer has merit. 
Upon review, the petitioner has not established eligibi the requested immigrant visa and the director 
properly revoked approval for good and sufficient cau reviously noted, the statute and the regulation 
at 8 C.F.R. 204.50) provide strict requirements that oner must satisfy prior to the approval of this 
immigrant visa petition. Upon review, the petitioner atisfied many of the enumerated evidentiary 
requirements. Contrary to 8 C.F.R. 5 204.5(j)(3)(i)( tioner has not established that it was "doing 
business" at the time of filing, or thereafter continue ess, in a regular, systematic, and continuous 
manner. Furthermore, the petitioner has not es t the beneficiary is primarily performing 
managerial or executive duties, contrary to 8 C.F. 5). Although the petitioner claims that the 
beneficiary has continued to act as a manager or ex e petitioner's liquor store went inactive, the 
petitioner has submitted a vague statement of the purportedly performed by the beneficiary. 
Rather than providing an account of the beneficiar ties, the description of the duties serves to 
paraphrase the statutory definitions. See 5 10 B) of the Act, 8 U.S.C. 5 1101(a)(44). 
Conclusory assertions regarding the beneficiary's ity are not sufficient. Merely repeating 
the language of the statute or regulations does n ner's burden of proof. Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N. s, the petition may not be approved and 
the appeal will be dismissed. 
Finally, beyond the decision of the director, the petitioner s not submitted evidence of the current financial 
status of the United States operation and there is no that the petitioner can pay the beneficiary's 
proffered salary. 8 C.F.R. 5 204.5(g)(2). For this the petition may not be approved and the 
appeal will be dismissed. 
An application or petition that fails to comply with the tec requirements of the law may be denied by 
the AAO even if the Service Center does not identify all for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
Based on the foregoing, the AAO will affirm the director's dftcision and dismiss the appeal.