dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 17446507 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 02, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, an information technology services and consulting company, seeks to permanently 
employ the Beneficiary as its "Vice President - Technology" under the fust preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b )(1 )(C), 8 U.S.C. § 1 l 53(b )(1 )(C). 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish, as required, that: (1) the Beneficiary's U.S. employment would be in a managerial or 
executive capacity , and (2) the Beneficiary was employed by the foreign employer in a managerial or 
executive position for at least one year in the three years preceding the date the petition was filed or 
his entry into the United States as a qualifying nonimmigrant. The Petitioner filed an appeal, which 
we summarily dismissed. The Petitioner then filed a motion to reopen and a motion to reconsider , both 
of which we dismissed . The matter is now before us again on a motion to reopen and a motion to 
reconsider. 
On motion, the Petitioner contends our previous summary dismissal of its appeal was in error, asserting 
that its appeal contained a brief setting forth claimed erroneous conclusions of law. The Petitioner 
states that it is "clear and obvious" that we overlooked the brief submitted on appeal and dismissed it 
"without even identifying the legal basis for the denial." The Petitioner asserts that we should "set 
aside our procedural postures" and approve the petition. 
Upon review, we affirm our previous motion decision and the petition will remain denied. 1 As the 
Petitioner would need to demonstrate the Beneficiary's eligibility for the benefit sought for us to grant 
either motion, we will therefore dismiss the motions as it has not established said eligibility. See 8 
C.F.R. § 103.5(a)(2); 8 C.F.R. § 103.5(a)(3) . 
1 As discussed in our previous decision, the issue before us at that time was whether the Petitioner had either submitted 
new facts supported by documentary evidence sufficient to warrant reopening our previous summary dismissal and/or 
established that our decision to summarily dismiss the appeal was based on an incorrect application of law or policy. 
However , in support of that motion the Petitioner did not contest our summary dismissal decision or claim that it was based 
on an incorrect application of law or policy . As such, our previous decision was correct based on the facts and assertions 
on the record at that time. See 8 C.F.R. § 103.5(a)(4). 
I. FOREIGN EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY FOR AT 
LEAST ONE YEAR 
The sole issue we will discuss is whether the Petitioner established that the Beneficiary was employed 
abroad for at least one year in the three years preceding the date the petition was filed or his entry into 
the United States as a nonimmigrant working for an affiliate or subsidiary of his foreign employer (in 
this matter the Petitioner). 2 Since this issue is dis positive of the Petitioner's motion, we decline to 
reach and hereby reserve its arguments with respect to whether the Beneficiary would be employed in 
a managerial or executive capacity in the United States or whether he was employed abroad 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). 
The regulation at 8 C.F.R. § 204.5(j)(3)(i) states that the Petitioner must demonstrate that: 
(A) If the alien is outside the United States, in the three years immediately preceding 
the filing of the petition the alien has been employed outside the United States for at 
least one year in a managerial or executive capacity by a firm or corporation, or other 
legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(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, the Director noted that the Petitioner's support and response letters did not 
identify the specific dates of the Beneficiary's foreign employment but indicated that the supporting 
evidence reflected that his foreign employment was from June 2016 to July 2017. For instance, the 
Petitioner pointed to submitted foreign paystubs dated from June 2016 through August 201 7. The 
Director concluded that the Beneficiary had been in the United States on a B-2 nonimmigrant visitor's 
visa for time periods reducing his claimed foreign employment to less than the required one year. 
On motion, the Petitioner does not specifically address this ground for denial in its brief stating only that 
we should "approve the underlying Form I-140 petition based solely on the merits." However, the 
Petitioner does provide several attachments, including a prior appeal brief: asserting that the Beneficiary 
"was employed in the overseas entity from June 1, 2016, through July 27, 2017 (the date he entered the 
US on a valid non-immigrant visa)." In the brief, the Petitioner also points to affidavits (also attached 
on motion) within which the Beneficiary and foreign employer both state that the Beneficiary's travel to 
the United States during his claimed foreign employment was "brief and innocent and did not interrupt 
his "continuous employment" with the overseas employer." 
2 The petition was filed on October 23. 2017. 
2 
As a preliminary matter, the Petitioner made conflicting statements on the record that leave substantial 
uncertainty as to the Beneficiary's actual time-period of foreign employment. For example, the 
Petitioner states in its appeal brief (now provided on motion) that he was employed abroad from June 1, 
2016, through July 27, 2017. However, an affidavit from the chairman and chief executive officer of 
the Petitioner dated in November 2019 states that the Beneficiary was employed abroad as vice president 
from June 1, 2016, to August 30, 2017, while a separate affidavit from the Beneficiary dated in October 
2019 indicates his foreign employment was again from June 1, 2016, through July 27, 2017. Another 
letter from the Petitioner dated in November 2019, also provided on motion, states that the Beneficiary 
"served as Vice President at [the foreign employer] from June 1, 2017 through July 15, 2017." In 
addition, as noted by the Director, the Petitioner did not specifically articulate the Beneficiary's time of 
foreign employment in support of the petition or in response to the Director's request for evidence (RFE), 
despite the Director's direct request in the RFE, but did submit foreign paystubs dating from June 2016 
through August 2017. Further still, the Petitioner states on motion that the Beneficiary was not 
"transferred to the US operations" until September 1, 201 7, thereby suggesting his foreign employment 
extended until this time. 
The Petitioner and Beneficiary provided yet other assertions regarding the Beneficiary's time of foreign 
employment in support of its first motion, leaving even further ambiguity. For instance, the Petitioner 
stated in support of its first set of motions, for the first time on the record, that the Beneficiary's foreign 
employment also included his time as "Director- Technology" for the foreign employer beginning in 
September 2014 up until date the petition was filed in October 2017. The Petitioner also emphasized 
the Beneficiary's ownership of 12% of the foreign employer's shares beginning in March 2013. 
However, questionably, this asserted foreign employment prior to June 1, 2016 is not discussed in 
support of the current motions. 
The Beneficiary further indicated in Part 3 of his Form I-485, Application to Register Permanent 
Residence or Adjust Status that he was employed by j t as "Director- Technology 
Division" from July 10, 2014, to May 28, 2016, prior to beginning employment with the foreign 
employer as vice president- technology on June 1, 2016. Similarly, the Beneficiary's G-325A, 
Biographic Information reflected that the Beneficiary was employed by.__ ______ ___, as director 
technology from July 2014 to May 2016 and again indicated that he began his employment with the 
foreign emplorr in June 2016. The Beneficiary's statements as to his foreign employment withl I 
I prior to June 2016 in the 1-485 and the G-325A directly conflict with the Petitioner's 
assertions submitted in support of its first set of motions regarding his claimed employment with the 
foreign employer prior to June 2016. 
Therefore, in sum, the Petitioner has submitted a confusing array of assertions with respect to the time­
period of the Beneficiary's foreign employment, as well as his claimed foreign employers and positions 
prior to June 1, 2016. These discrepancies leaves substantial ambiguity as to the Beneficiary's actual 
asserted time of foreign employment and whether he was employed for more than one year in the three 
years preceding the date the petition was filed or his entry into the United States as a nonimmigrant. The 
Petitioner must resolve inconsistencies with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Unresolved material inconsistencies may 
lead us to reevaluate the reliability and sufficiency of other evidence submitted in support of the 
requested immigration benefit. Id. As such, due to the Petitioner's conflicting statements and evidence 
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as to the Beneficiary's foreign employment, it has not demonstrated the Beneficiary's required one year 
of qualifying foreign employment as necessary to establish his eligibility. 
Regardless, we will briefly address the Beneficiary's primary assertion with respect to the Beneficiary's 
foreign employment provided on motion; namely, that he was employed by the foreign employer for 
more than one year from June 1, 2016, through July 27, 2017, and that his travel to the United States 
during this time was "brief and innocent and did not interrupt his "continuous employment" with the 
overseas employer." 
The applicable regulations are clear, the Petitioner must demonstrate that the Beneficiary was employed 
"outside the United States" for at least one year or "overseas [ emphasis added] ... for at least one year" 
in the three years preceding the date the petition was filed or his entry as a nonimmigrant to work for a 
subsidiary or affiliate of the foreign employer (in this case the Petitioner). See 8 C.F.R. § 
204.5(j)(3)(i)(A) and (B). As such, 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. 
First, the Beneficiary's presence in the United States after July 27, 2017, cannot be considered working 
for the same employer or a subsidiary or affiliate of the foreign employer. The Petitioner states, and 
our records reflect, that the Beneficiary entered the United States on a B-2 nonimmigrant visitor's visa 
for the purposes of tourism, not an employment-based immigration visa. Therefore, the Petitioner was 
required to demonstrate the Beneficiary's foreign employment for one year in the three years prior to 
the date the petition was filed on October 23, 2017. 
United States Citizenship and Immigration Service (USCIS) records, which the Petitioner does not 
dispute, reflect that the Beneficiary was not employed overseas for the required one year in the three 
years preceding the date the petition was filed from October 23, 2014, to October 23, 2017. These 
records show that the Beneficiary entered the United States on a B-2 nonimmigrant visa during his 
claimed period of foreign employment for the following time periods: 1) from June 1, 2016, to July 27, 
2016 (56 days); 2) from January 7, 2017, to January 17, 2017 (11 days); and 3) from March 14, 2017, to 
March 19, 2017 ( 6 days). 3 The Beneficiary spent a total of 73 days in the United States during his 
asserted foreign employment from June 1, 2016, to July 27, 2017. Therefore, even if we accept the 
Beneficiary's foreign employment during the asserted period, this amounts to only 349 days employed 
outside the United States during the qualifying three-year period. Once again, the Beneficiary's time in 
the United States cannot count towards the minimally required one year of foreign employment outside 
the United States during the applicable three-year qualifying period. See 8 C.F.R. § 204.5(j)(3)(i)(B). 4 
Therefore, we agree with the Director's conclusion that the Petitioner did not establish that the 
Beneficiary was employed overseas for the required one year in the three years preceding the date the 
petition was filed. The Petitioner must demonstrate the Beneficiary's eligibility for the benefit sought 
3 We note that the Petitioner does not dispute these entries and exits included in USCTS records as they are listed in a letter 
submitted in support of its first set of motions. 
4 For the sake of clarity, this would also include any time the Beneficiary was claimed to be employed by the foreign 
employer in the United States after July 27, 2017, until the petition was filed on October 23, 2017, if our focus turns to the 
this time period. 
4 
for us to grant either motion, since it has not done so, we must dismiss the motions. See 8 C.F.R. 
§ 103.5(a)(2); 8 C.F.R. § 103.5(a)(3). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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