dismissed EB-1C Case: Hardware Tools

' 
U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
' PUBLICCopy 
identifying data deleted to 
prevht clearly unwmted 
invasion of personal privacy 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 0 1 2007 
WAC 97 1 18 53777 
IN RE: 
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. fj 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. 
Robert pG P. iemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was approved on May 3, 1997. 
 Pursuant'to information 
discovered during a subsequent review of the matter, the Director, California Service Center determined that 
the petitioner was no longer eligible for the immigration benefit sought and, therefore, issued a notice of 
intent to revoke (NOIR) the approval of the petition. The director 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 California corporation engaged in the import, export, distribution, and sale of hardware 
. 
 tools. In a letter dated March 18, 1997, which was submitted in support of the petitioner's Form 1-140, the 
petitioner stated that it was a subsidiary of Sisha Company Limited, located in China. The petitioner seeks to 
employ the beneficiary as its vice 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. fj 1153(b)(l)(C), as a multinational executive or manager. 
Pursuant to an-investigation conducted after the petitloner's Form I- 140 was approved, the d~rector determined 
that the petitioner failed to maintain a qualifying relationship with the foreign entity and, therefore, became 
ineligible to classify the beneficiary as a multinational manager or executive. 
The record shows that on July 3, 2001, an investigation was conducted via phone contact with representatives 
of the petitioning entity's claimed parent company. That investigation revealed that the parentlsubsidiary 
relationship between the U.S. petitioner and the foreign entity had been severed in 1999 when the foreign 
entity relinquished its controlling interest over the U.S. petitioner. The record further shows that on July 10, 
2001, the Los Angeles District Office returned the petition to the Citizenship and Immigration Services (CIS) 
for review for possible revocation. A letter dated July 10, 2001 was issued in an effort to notify the 
beneficiary of the further review and possible revocation. 
 ' 
On July 7, 2005, CIS issued an NOIR and sent it to the petitioner's latest attorney of record. However, CIS 
did not receive a response addressing the ground of ineligibility cited in the notice. 
Accordingly, on December 28, 2005, the director issued a decision revoking approval of the petition. The 
director noted the petitioner's failure to respond to the NOIR and indicated that the petitioner failed to 
overcome the grounds cited therein. 
On appeal, counsel claims that the petitioner was unable to respond to the NOIR because it did not receive the 
said notice. 
However, the regulation at 8 C.F.R. § 292.5(a) states the following with regard to serving notices upon the 
attorney or representative of record: 
Whenever a person is required by any of the provisions of this chapter to give or be given 
notice; to serve or be sewed with any paper other than a warrant of arrest or a subpoena; to 
make a motion; to file or submit an application or other document; or to perform or waive the 
performance of any act, such notice, service, motion, filing, submission, performance, or 
waiver shall be given by or to, served by or upon, made by, or requested of the attorney or 
representative of record, or the person himself if unrepresented. 
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The record shows that the law firm that represented the petitioner at the time of the filing and approval of the 
petitioner's Form 1-140 did not withdraw its representation before CIS. Accordingly, CIS properly sent the 
NOIR to the petitioner's attorney of record at the address previously provided. As such, CIS cannot be faulted 
for any delay in the petitioner's receipt of the properly issued notice.' 
Counsel further disputes the underlying basis for ineligbility as cited in the NOIR, stating that the foreign 
entity did not sell its controlling interest of the foreign entity until September of 1999, two years after 
approval of the petitioner's Form 1-140. However, a revocaiion will generally 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 intent to revoke. See Matter of Arias, 19 I&N Dec. 568,569 (BIA 1988). 
In the instant matter, the record clearly shows the lack of the petitioner's response to a properly issued NOIR. 
Therefore, revocation of the approval based on the petitioner's failure to respond was warranted. 
Furthermore, even if the AAO were to overlook the petitioner's failure to respond to CIS'S NOR and consider 
counsel's statements with regard to the underlying ground for ineligibility, a revocation would nevertheless be 
warranted based on counsel's statements confirming the fact that the petitioner's qualifjing relationship with 
the foreign entity was severed in 1999. 
CIS regulations affirmatively require an alien to establish eligibility for an immigrant visa at the time an 
application for adjustment of status is filed. 8 C.F.R. 8 245.1(a). If the beneficiary of an approved visa 
petition is no longer eligible for the classification sought, the director may seek to revoke his approval of the 
petition pursuant to section 205 of the Act, 8 U.S.C. 8 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 of Hawaii, Ltd. v. Feldman, 
736 F.2d 1305 (9th Cir. 1984). 
In the present matter, there is no documentation showing that an immigrant visa was issued as a result of the 
petitioner's approved Form 1-140. Therefore, the petitioner's burden to maintain eligibility for the benefit 
sought continued well beyond 1997 and certainly did not terminate simply because the Form 1-140 was 
approved. To the contrary, the foreign entity's sale of its controlling interests in the petitioning entity 
terminated the required qualifying relationship and, therefore, rendered the petitioner ineligible to classify the 
beneficiary as a multinational manager or executive. 
' Although no ~neffective assistance of counsel claim was made in this case, there is insufficient evidence in the record to 
support such a claim even if it was made. Any appeal or motion based upon a claim of ineffective assistance of counsel 
requires: (1) that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the 
agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did 
or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be 
informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the appeal or motion 
reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of 
counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd, 857 
F.2d 10 (1st Cir. 1988). 
Page 4 
Additionally, counsel draws the AAO's attention to a recent opinion, Firstland Int'l, Inc. v. Ashcroft, 377 F.3d 
127 (2d Cir. 2004), issued by the United States Court of Appeals for the Second Circuit on August 2, 2004. 
In that opinion, the court in Firstland interpreted the third and fourth sentence of section 205 of the Act, 8 
U.S.C. 5 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 begnning his journey to the United 
States. Firstland, 377 F.3d at 130. Counsel asserts that the reasoning of this opinion must be applied to the 
present matter and accordingly, CIS may not revoke the approval because the beneficiary did not receive 
notice of the revocation before departing for the United States, since he was already in the United States when 
the director issued the rev~cation.~ 
According to the record of proceeding, the petitioner lives in California; thus, this case did not arise in the 
Second Circuit. 
 Firstland was never a binding precedent for this case. 
 Moreover, even as. a merely 
persuasive precedent, 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 strilung 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. 
Finally, counsel's argument that the petitioner's Form 1-140 should not have been automatically revoked is 
irrelevant, as the petition in the instant matter was not, in fact, revoked automatically. As previously 
discussed, CIS properly issued an NOIR pursuant to 8 C.F.R. 5 205.2 and only issued the final notice of 
revocation after concluding that the petitioner failed to respond to the adverse information cited therein. Any 
revocation that stems from a properly issued notice of intent cannot be deemed automatic. 
In visa petition proceedings, the burden of proving eligbility 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. 
Accordingly, the AAO affirms the director's decision to revoke the approval of the petitioner's Form 1-140. 
Counsel's arguments illustrate the illogical effects of the Second Circuit's reasoning: In the present matter, the 
beneficiary has resided in the United States as a nonirnrnigrant L-1A intracompany transferee since November 1995, two 
years prior to the filing of the Form 1-140 immigrant petition and nearly ten years prior to the revocation of the petition's 
approval. Accordingly, it was physically impossible for CIS to have notified the beneficiary of the revocation before he 
departed for the United States. In effect, counsel's interpretation of Firstland would have created a situation where any 
alien would have an irrevocable immigrant visa petition if the alien simply waited to file the petition after he or she 
arrived in the United'States. 
1,. - 
Page 5 
ORDER: The appeal is dismissed.