dismissed EB-1C Case: International Trade

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3000 
Washington, DC 20529 
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 @ U. s. Citizenship 
prevent dearly unw- and I~nmigration 
a%MD Services 
;nvadon 0f ~erscmal ~rlvact 
PUBLIC copy 
Office: CALIFORNIA SERVICE CENTER 
 Date: JUN 1 6 2006 
IN RE: Petitioner: 
Beneficiary: 
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. !j 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
ON BEHALF OF THIRD PARTY: 
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. 
'1 Administrative Appeals Office 
Page 2 
DISCUSSION: The director, California Service Center, initially denied the employment-based visa petition 
but subsequently reopened and approved the petition on motion. Upon later review of the record, however, 
the director found considerable inconsistencies and a lack of evidence that did not warrant approval of the 
petition. The director therefore issued a Notice of Intent to Revoke (NOIR) and ultimately revoked approval 
of the petition. The matter is now before the Administrative Appeals Office (AAO) pursuant to an appeal that 
was filed by a third-party corporation. The third-party appeal will be rejected and the director's revocation 
will be affirmed. 
The petitioner, is a company that incorporated in October 1994 in the State of California. It claims 
to engage in import, export, and international trading.' It seeks to employ the beneficiary as its president. 
Accordingly, it endeavors to classify the beneficiary as an ernployment-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. 
This matter has a lengthy procedural history that will be discussed in detail. The petition was filed on November 
18, 1996 and the director approved the petition on May 1, 1997. The beneficiary filed an 1-485, Application to 
Register Permanent Residence or Adjust Status on May 12, 1997. Citizenship and Immigration Services (CIS), 
formerly the Immigration and Naturalization Service (INS), Los Angeles District Office interviewed the 
beneficiary regarding his 1-485 application on October 28, 1998. Following the interview and a review of the 
beneficiary's alien file, the Los Angeles District Director requested an overseas investigation to confi the 
parentlsubsidiary relationship between the foreign entity and the petitioner. 
Upon review of the totality of the record, including the investigative report, the California Service Center director 
issued an NOIR on March 12, 2004 noting the overseas investigative report and substantial inconsistencies in the 
evidence of record. 
 to the NOR. Instead, the beneficiary and the 
attorneg for his 
 submitted a response in which they argued that = 
and subsequent1 
 beneficiary in the "same or similar occupation" 
for which the 1-140 petition had been approved. Counsel for the beneficiary asserted that the beneficiary was 
entitled to "port" the 1-140 approved on his behalf to. pursuant to the provisions of section 
2046) of the Act, 8 U.S.C. 4 1 154(j), as added by section 106(c) of the American Competitiveness in the Twenty 
First Century Act of 2000 (AC2 1). 
1 
 The petitioner initially claimed to import and export scrap insulated copper wire from scrap motors or used 
motors. As discussed below and in greater detail in the director's Notice of Intent to Revoke and Revocation 
Decision, the record does not contain evidence that the petitioner continues to exist as a viable company. If 
the petitioner's business has been terminated, this fact would constitute grounds for the automatic revocation 
of the petition approval, without notice, retroactive to the date of the original approval. 8 C.F.R. 
8 205.1 (a)(3)(iii)(D). 
2 
 Although counsel indicates in his letter dated April 2, 2004 that he represents the beneficiary with regard to 
the 1-140 revocation proceeding, the G-28 signed by the beneficiary limits counsel's representation solely to 
the 1-485 adjustment application. 
The director ultimately revoked the approval pursuant to section 205 of the Act, 8 U.S.C. $ 1155, observing that 
the petitioner had not responded to the NOIR and the issues of fiaud and misrepresentation outlined therein. In 
addition, the director determined that the petitioner had failed to establish: (1) a qualifying relationship with the 
beneficiary's foreign employer; or (2) that the beneficiary would be employed in a primarily managerial or 
executive capacity for the United States entity. The director also listed the numerous inconsistencies contained in 
the record. 
CIS regulations and precedent specifically limit the filing of an appeal of a revocation to the petitioner or self- 
petitioner. 8 C.F.R. $ 205.2(d); see also Matter of Dabaase, 16 I&N Dec. 720, 721-722 (BIA 1979). In this 
matter, the Form G-28, Notice of Entry of Appearance as Attorney or Representative, that was submitted for 
the record for the 1-140 petition was signed by the president of - not by an authorized 
representative of the petitioner. Even if the beneficiary signed the G-28 andlor I-290B, the beneficiary of a 
visa petition is not a recognized party on appeal.3 See 8 C.F.R. $ 103,2(a)(3). As the beneficiary and his 
employer,, are not recognized parties in this matter, the new employer's counsel would 
not generally be authorized to file the appeal in this matter. 8 C.F.R. $ 205.2(d); 8 C.F.R. $ 
103.3(a)(l)(iii)(B); 8 C.F.R. $ 103.3(a)(2)(v)(A)(l). 
However, given the novel issue raised by counsel on appeal, i.e., that AC21 permits the new employer to have 
legal standing in this proceeding, the AAO must address this as well as any related issues before it can properly 
conclude that the appeal has been improperly filed and must thereby be rejected. To make thls determination, the 
AAO must therefore discuss the following: (1) whether a new employer takes the place of an original petitioner 
in AC21 situations, where the beneficiary's 1-485 has been pending for 180 days or more; (2) whether a petition 
that has been revoked is still "valid" for purposes of 8 U.S.C. $ 2046) as added by section 106(c) of AC21; and 
(3) whether the petition in this matter was properly revoked. 
With regard to the fist issue, counsel for the third party contends that his client, , is the 
''beneficial owner" or "successor employer" of the approved 1-140 petition because the portability provisions 
of AC21 are applicable to this matter. Counsel also asserts that CIS may not deny the adjustment application 
because the application had been pending for more than 180 days at the time it was adjudicated. 
3 
 It is noted for the record that, while the beneficiary does appear to have been an agent for the petitioner, 
there is no evidence in the record that the beneficiary was legally authorized to sign as a representative on 
behalf of the petitioner in this proceeding. Moreover, as noted above, the president of a third party 
corporation signed the 1-140 G-28 and its counsel signed the G-28 and the I-290B; the beneficiary did not 
sign either of these documents. 
4 
Although no appeal lies from the denial of an application for adjustment of status under section 245 of the 
Act, 8 C.F.R. $ 245.2(a)(5)(ii), the beneficiary's purported new job and the portability considerations of 
AC21 are properly addressed by the AAO, provided the review in this matter is limited to the 1-140 petition. 
The issues related to the petition include its continued "validity," the "successor" petitioner construct 
proffered by counsel, and the revocation of the petition itself. 
In general, an alien may acquire permanent resident status in the United States through two legal mechanisms: 
the alien may pick up their approved visa packet at an overseas consulate and be "admitted" to the United 
States for permanent re~idence;~ or, if the alien is already in the United States in a lawhl nonimmigrant or 
parolee status, the alien may "adjust status" to that of an alien admitted for permanent residence. CJ: 9 21 1 of 
the Act, 8 U.S.C. 9 1181 ("Admission of Immigrants into the United States"); 9 245 of the Act, 8 U.S.C. 
9 1255 ("Adjustment of Status of Nonimmigrant to that of Person Admitted for Permanent Residence"). 
Governing adjustment of status, section 245(a) of the Act, 8 U.S.C. 8 1255(a), requires the adjustment 
applicant to have an "approved" petition: 
The status of an alien who was inspected and admitted or paroled into the United States or the 
status of any other alien having an approved petition for classification under subparagraph 
(A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(l) or [sic] may be adjusted by the 
[Secretary of Homeland Security], in his discretion and under such regulations as he may 
prescribe, to that of an alien lawhlly admitted for permanent residence if: 
(i) 
 the alien makes an application for such adjustment, 
(ii) 
 the alien is eligible to receive an immigrant visa and is admissible to the United 
States for permanent residence, and 
(iii) 
 an immigrant visa is immediately available to him at the time his application is filed. 
(Emphasis added.) 
In this matter, as the beneficiary was present in the United States at the time the 1-140 petition was approved, 
he was eligible to and chose to apply to adjust his status in the United States to that of a permanent resident 
instead of pursuing consular processing abroad. Furthermore, based on the record of proceeding, as the 
beneficiary's 1-485 was pending more than 180 days at the time AC21 was enacted and the provisions of 
section 106(c) of this act came into effect on October 17, 2000, it would appear, absent revocation, that the 
approved petition would remain valid with respect to a new position with a different sponsor.6 Pub. L. No. 
106-313, 1 14 Stat. 125 1 (Oct. 17,2000). 
5 
 Counsel asserts on appeal that, if the beneficiary had pursued consular processing instead of applying for 
adjustment of status, he would have become a permanent resident in 1997. There is no evidence in the record 
to support this assertion. However, even assuming hypothetically that the beneficiary had chosen consular 
processing instead, it is quite possible the consular officer abroad would have noticed the same issues of 
ineligibility, denied the immigrant visa application, and referred the matter back to CIS for revocation. 
6 
 It should be noted that at the time AC21 came into effect, legacy INS regulations provided that an alien 
worker could not apply for permanent resident status by filing a Form 1-485, application to adjust status, until 
he or she obtained the approval of the underlying Form 1-140 immigrant visa petition. See 8 C.F.R. 
9 245.2(a)(2)(i) (2000). Therefore, the process under section 106(c) of AC21 was as follows: first, an alien 
Even so, this does not answer the more specific question of whether a new employer may take the place of 
and become the petitioner of an 1-140 petition in AC21 situations. To address this issue, it is important to 
closely analyze section 106(c) of AC21 and determine the interpretation of the statute as intended by 
Congress. Specifically, section 106(c) of AC21 added the following to section 2046) to the Act: 
Job Flexibility for Long Delayed Applicants for Adjustment of Status to Permanent Residence.- 
A petition under subsection (a)(l)(D) [since redesignated section 204(a)(l)(F)] for an 
individual whose application for adjustment of status pursuant to section 245 has been filed and 
remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the 
individual changes jobs or employers if the new job is in the same or a similar occupational 
classification as the job for which the petition was filed. 
American Competitiveness in the Twenty-First Century Act of 2000 (AC2 l), Pub. L. No. 106-3 13, § 106(c), 
1 14 Stat. 125 1, 1254 (Oct. 17,2000); 4 2046) of the Act, 8 U.S.C. 9 1154(j). 
Section 212(a)(5)(A)(iv) of the Act, 8 U.S.C. 9 1182(a)(5)(A)(iv), states further: 
Long Delayed Adjustment Applicants- A certification made under clause (i) with respect to 
an individual whose petition is covered by section 2040) shall remain valid with respect to a 
new job accepted by the individual after the individual changes jobs or employers if the new 
job is in the same or a similar occupational classification as the job for which the certification 
was issued. 
Statutory interpretation begins with the language of the statute itself. Pennsylvania Department of Public 
Welfare v. Davenport, 495 U.S. 552 (1990). Statutory language must be given conclusive weight unless the 
legislature expresses an intention to the contrary. Int'l. Brotherhood of Electrical Workers, Local Union No. 
474, AFL-CIO v. NLRB, 814 F.2d 697 (D.C. Cir. 1987). The plain meaning of the statutory language should 
control except in rare cases in which a literal application of the statute will produce a result demonstrably at 
odds with the intent of its drafters, in which case it is the intention of the legislators, rather than the strict 
language, that controls. Samuels, Kramer & Co. v. CIR, 930 F.2d 975 (2d Cir.), cert, denied, 112 S. Ct. 416 
(1991). 
In addition, we are expected to give the words used their ordinary meaning. Chevron, U.S.A., Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837 (1984). We are to construe the language in question in 
harmony with the thrust of related provisions and with the statute as a whole. K Mart Corp. v. Cartier Inc., 
486 U.S. 281, 291 (1988) (holding that construction of language which takes into account the design of the 
statute as a whole is preferred); see also COIT Independence Joint Venture v. Federal Sav. and Loan Ins. 
Corp., 489 U.S. 561 (1989); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). 
obtains an approved employment-based immigrant visa petition; second, the alien files an application to 
adjust status; third, if the adjustment application was not processed within 180 days, the underlying immigrant 
visa petition remained valid even if the alien changed employers or positions, provided the new job was in the 
same or similar occupational classification. 
Counsel asserts that section 106(c) of AC21 is "simple and straightforward, and so long as there is an 
approved 1-140 and the adjustment of status has been pending for over 180 days without having been 
adjudicated, such petition remains valid for a job with a new employer provided that the new job is in the 
same or similar occupation as that for which the petition was filed." As a simple paraphrasing of the statute, 
the AAO concurs with counsel's statement. Absent revocation, the beneficiary would have been eligible for 
adjustment of status with a new employer provided, as counsel points out, that "the new job is in the same or 
similar occupation as that for which the petition was filed." However, critical to section 106(c) of AC21, the 
petition must be "valid" to begin with if it is to "remain valid with respect to a new job." Section 2046) of the 
Act, 8 U.S.C. 8 11546) (emphasis added). 
Contrary to counsel's assertions and as discussed in greater detail below, the statutory language provides no 
benefit or right for a new employer to "substitute" itself for the previous petitioner as a "beneficial owner" or 
"successor employer." The statute simply permits the beneficiary to change jobs and remain eligible to adjust 
based on a prior approved petition if the processing times reach or exceed 180 days. 
On appeal, counsel points to legislative history and asserts that Congress enacted AC21, and more specifically 
section 106(c) of AC21, in an effort to reduce all backlogs of immigration applications and ameliorate the 
negative consequences that these backlogs have on applicants. However, the available legislative history does 
not shed light on Congress's intent in specifically enacting section 106(c) of AC21. While the legislative history 
for AC21 discusses Congressional concerns regarding the nation's economic competitiveness, the shortage of 
skilled technology workers, U.S. job training, and the cap on the number of nonirnmigrant H-1B workers, the 
legislative history does not specifically mention section 106(c) or any concerns regarding backlogs in adjustment 
of status applications. See S. REP. 106-260,2000 WL 622763 at *lo, *23 (April 11,2000). 
In support of his assertion, counsel cites the following comments that Senator Feinstein made in addressing the 
Senate on October 3,2000: 
It is unacceptable that millions of people who have followed our nation's laws, made outstanding 
contributions to our nation, and paid the requisite fess have had to wait months, and even years, 
to obtain the immigration services they need. These processing delays have had a negative 
impact on businesses seeking to employ or retain essential workers. . . . I believe enactment of 
these provisions [as part of the H-1B legislation] will send a strong Congressional directive to 
the INS that timely and efficient service is not merely a goal, but a mandate. 
146 Cong. Rec. S9656 (2000) (quoted phrase in brackets omitted in counsel's brief). 
While counsel's statement regarding the purpose of Public Law 106-31 3 and AC21 may be generally true, it 
should be noted that Senator Feinstein made these comments in regard to "the provisions of S. 2586, the 
'Immigration Services and Infrastructure Improvement Act of 2000."' Id. While the Immigration Services and 
Infrastructure Improvement Act of 2000 was added to and was passed together with AC21 as part of the same 
public law, it technically remains a separate act. In addition, S. 2586 as it was introduced to the Senate on May 
18, 2000 did not contain any provisions that resembled section 106(c) of AC21. S. 2586, 106~ Cong. (May 18, 
2000). Section 106(c) of AC21 was added as an amendment together with S. 2586 on September 28,2000, and 
the Congressional Record does not contain any comments or discussion regarding this specific addition to AC21. 
See 146 Cong. Rec. S9526 (2000). 
Even if Senator Feinstein's remarks were meant to include section 106(c) of AC21, it is apparent fi-om her 
comments as well as the statutory language itself that, while the improvements in processing times should be 
considered a mandate, the provisions of the Immigration Services and Infrastructure Improvement Act of 2000 
were meant to facilitate this "goal" and not create an immediate six-month deadline within which to adjudicate 
every non-frivolous employment-based immigrant visa petition and associated adjustment application. 146 
Cong. Rec. S9656 (2000). It does not appear, therefore, that the act was meant to be punitive as counsel infers. 
On the contrary, section 202 of the Immigration Services and Infrastructure Improvement Act of 2000 states that 
one of the main purposes of the act was to provide CIS with the mechanisms it needs to eliminate the current 
backlog in the processing of immigration benefit applications. Pub. L. No. 106-3 13, 5 202(a)(l), 1 14 Stat. 
1251, 1262 (Oct. 17, 2000). In other words, the legislation was meant to assist CIS with its backlog issues, 
which oftentimes have resulted due to legislative changes to the Act, i.e., the increase in filings due to the 
extended amnesty provisions of section 245(i) of the Act. Despite counsel's failure to submit probative 
evidence of congressional intent, the AAO recognizes that the Immigration Services and Infrastructure 
Improvement Act of 2000 provides an important Congressional policy objective, which is that immigration 
benefit applications should be processed within 180 days of the date they are filed. Pub. L. No. 106-313, 5 
202(b), 114 Stat. 1251, 1262 (Oct. 17,2000). 
However, there is no mention in AC21 of the new employer taking the place of the prior petitioner or any 
other language that would support counsel's novel but unsupported theory that the new employer should be 
granted rights as a "beneficial owner" or "successor employer." Section 106(c) states that the underlying 1-140 
petition "shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is 
in the same or a similar occupational classification as the job for which the petition was filed." Pub. L. No. 106- 
313, 5 106(c), 114 Stat. 1251, 1254 (Oct. 17,2000); 4 2046) of the Act, 8 U.S.C. 4 11546). 
Moreover, counsel also argues that section 106(c) "has conferred a right in successor employers to circumvent 
lengthy and expensive procedures of the immigration process which have already been suffered by the 
beneficiary . . . ." Counsel cites Amett v. Kennedy, 94 S. Ct. 1633, 1650 (1974), and states that such successor 
employer rights "cannot be denied without due process of law." 
Again, counsel's assertions are unpersuasive. As discussed above, there is no evidence that Congress intended to 
confer anything more than a benefit to beneficiaries of long delayed adjustment applications. In other words, the 
plain language of the statute indicates that Congress intended to provide the alien, as a "long delayed applicant for 
adjustment," with the ability to change jobs if the individual's 1-45 took 180 days or more to process. Section 
106(c) of AC21 does not mention the rights of a subsequent employer and does not provide other employers with 
the ability to take over already adjudicated immigrant petitions. While counsel's argument of "successor 
employers" is creative, he fails to show that the statutory language confers any employment rights to subsequent 
employers and fails to explain how this legal construct was arrived at given that there is no mention of 
employment rights conferred to new employers under AC21 in either the statute or the legislative history, supra. 
Page 8 
Counsel's citation of Justice Powell's concurring opinion regarding employment rights in Arnett v. Kennedy is 
also unpersuasive. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the Amett v. Kennedy decision. Specifically, Amett v. Kennedy dealt with the 
employment discharge dispute of a non-probationary federal employee protected by 5 U.S.C. 7501 (a) (repealed 
1978). See Arnett v. Kennedy, 94 S. Ct. 1633, 1650 (1 974). The concurring opinion in Amett v. Kennedy relates 
specifically to whether an employee has a legitimate "property" or "liberty" interest within the meaning of the 
Fifth or Fourteenth Amendment; it makes no mention of any due process rights that would be granted to a 
"successor employer" under that statute. In the present case, counsel merely alludes to the right of a "successor 
employer" without demonstrating how such a right might arise fiom a statute that makes no mention of 
"successor employer" rights. It thus remains unclear how the beneficiary has been granted a legitimate claim 
of entitlement under AC21 and is thereby entitled to a constitutional guarantee of procedural due process similar 
to that granted under 5 U.S.C. 4 750 1 (a) (repealed 1978). 
In conclusion, counsel has failed to show that the passage of AC21 granted any rights, much less benefits, to 
subsequent employers of aliens eligible for the job portability provisions of section 106(c). Based on a review of 
the statute and legislative history, the AAO must reject counsel's unsupported legal construct of "successor 
employers," which would entitle these "beneficial owner[s]" to replace the original 1-140 petitioner as an affected 
party in these proceedings. 
The second issue in this proceeding is whether a petition that has been revoked is still valid for purposes of 8 
U.S.C. 
 2040) as added by section 106(c) of AC21. 
As discussed above, it is recognized that, as the 1-140 was initially approved and as the 1-485 was pending more 
than 180 days at the time AC21 was enacted on October 17, 2000, section 106(c) would normally apply in this 
case. However, section 106(c) does not specifically address the issue of a revoked petition and whether it would 
"remain valid" with respect to a new position with a different employer. 
Citing an August 4, 2003 memorandum from William R. Yates, counsel argues on appeal that "so long as the 
original offer of employment is bona fide and the employer had the intent at the time the 1-140 was approved to 
employ the beneficiary upon adjustment, it does not matter that the petition has been revoked." Counsel also 
asserts that, even when the original petitioner commits hud, "so long as the initial offer of employment was bona 
fide and the initial employer had the intent at the time the 1-140 was approved to employ the beneficiary upon 
adjustment, the job flexibility and portability provisions of AC21 apply." 
Upon review, counsel's assertions are not persuasive. The operative language in section 106(c) is the 
following phrase: "A petition . . . shall remain valid with respect to a new job if the individual changes jobs or 
employers . . . ." The term "valid" is not defined by the statute, nor does the congressional record provide any 
guidance as to its meaning or to situations in which an 1-140 petition is re~oked.~ See S. REP. 106-260; see 
- - -- 
7 
 CIS has not as yet published any regulations governing the application of section 106(c) of AC21. The 
agency has offered guidance on this provision in the form of two policy memoranda and has amended the 
Adjudicator Field Manual (AFM) to account for the law. Neither the memoranda nor the AFM define the 
term "valid." See Memorandum from William R. Yates, Acting Assoc. Dir. for Operations, CIS, Continuing 
also H.R. REP. 106-1 048. Critical to section 106(c) of AC21, however, the petition again must be "valid" to 
begin with if it is to "remain valid with respect to a new job." Section 2046) of the Act, 8 U.S.C. 9 11546) 
(emphasis added). 
Although counsel points to CIS memoranda as well as to comments made by Senator Feinstein to assert that 
the AAO should construe section 106(c) in a light favorable to the beneficiary and his new employer, counsel 
does not discuss the actual language of the statute. As indicated above, statutory interpretation begins with 
the language of the statute itself. Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552. 
We are expected to give the words used in the statute their ordinary meaning. Chevron, U.S.A., Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837. Furthermore, we are to construe the language in question in 
harmony with the thrust of related provisions and with the statute as a whole. K Mart Corp. v. Cartier Inc., 
486 U.S. at 291 (again, holding that construction of language which takes into account the design of the 
statute as a whole is preferred); see also COIT Independence Joint Venture v. Federal Sav. and Loan Ins. 
Corp., 489 U.S. 561; Matter of W-F-, 21 I&N Dec. 503. 
Contrary to the ordinary meaning of the word, counsel's position that section 106(c) applies in this matter 
would have CIS construe the term "valid" to include revoked and patently fraudulent petitions. See Webster's 
New College Dictionary 121 8 (2001) (defining "valid" as "well-grounded," "producing the desired results," or 
"legally sound and effective.") As an approved petition is required for CIS to approve an application for 
adjustment of status, supra, it is extremely doubtful that Congress intended the term "valid" to include 
petitions that are fraudulent or ultimately revoked. 4 245(a) of the Act, 8 U.S.C. $ 1255(a) 
Moreover, in passing AC21, Congress did not address the issue of 1-140 revocations or amend section 205 of 
the Act, 8 U.S.C. 9 1155, to restrict CIS authority in revoking previously approved petitions. Specifically, 
section 205 of the Act, 8 U.S.C. 1155, states: "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 
11 54 of this title. Such revocation shall be effective as of the date of approval of such petition."8 
Validity of Form 1-140 Petition in accordance with Section 106(c) of the American Competitiveness in the 
Twenty-First Century Act of 2000, HQCIS 7016.2.8-P (August 4, 2003); Memorandum from Michael A. 
Pearson, Executive Assoc. Cornrn., Office of Field Operations, INS (now CIS), Initial Guidance for 
Processing H-IB Petitions as Afected by the American Competitiveness in the Twenty-First Century Act 
(Public Law 106-313) and Related Legislation, HQCIS 7016.2.8-P (June 19, 2001); see also !j 20.2(c) of the 
AFM. However, with regard to revocations of 1-140 petitions, the August 4, 2003 memorandum from 
William R. Yates states that, if an "approval of the Form 1-140 is revoked, . . . the approved Form 1-140 is no 
longer valid with respect to a new offer of employment and the Form 1-485 may be denied." Memorandum 
from William R. Yates, Acting Assoc. Dir. for Operations, CIS, Continuing Validity of Form 1-140 Petition in 
accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000, 
HQCIS 7016.2.8-P (August 4,2003); $ 20.2(c) of the AFM. 
8 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to this matter, section 
5304(c) of Public Law 108-458 amended section 205 of the Act by striking "Attorney General" and inserting 
In addtion, 8 C.F.R. § 204.5(n)(3) stated at the time and continues to read: "Validity of approved petitions. 
Unless revoked under section 203(e) or 205 of the Act, an employment-based petition is valid indefinitely." 8 
C.F.R. 9 204.5(n)(3) (2000); 8 C.F.R. 
 204.5(n)(3) (2005) (emphasis added). It therefore follows that, if an 
approved petition is revoked, it is no longer considered valid. If Congress wanted to change this regulation and 
have revoked petitions be considered valid, it could have done so through AC21 or later in 2004 when it amended 
section 205 of the Act. As Congress chose not to define the term "valid" in passing AC21 or in revisiting 
revocation authority in the INA and as the congressional record fails to provide any guidance as to its meaning in 
revocation situations, it thereby follows that 8 C.F.R. $ 204.5(n)(3) comports with Congressional intent. It is 
presumed that Congress is aware of CIS regulations at the time it passes a law. See Goodyear Atomic Coy. V. 
Miller, 486 U.S. 174, 184-85 (1988). 
Pursuant to the plain language of section 205 of the Act and 8 C.F.R. 
 204,5(n)(3), when the approval of the 
petition in this matter was revoked, it was retroactively revoked to the date of its original approval. The petition 
was therefore never valid. Accordingly, the petition could not "remain valid" with regard to a new position with a 
different employer under section 106(c) of AC21. Considering the INA as a whole, it would thus severely 
undermine the immigration laws of the United States to find that a petition is "valid" when the approval of that 
petition was revoked. It would be irrational to believe that Congress intended to throw out the entire statutorily 
mandated scheme regulating immigrant visas whenever that scheme requires more than 180 days to effectuate. 
Moreover, as discussed in greater detail below, the petition in the present matter was filed on behalf of an 
alien who was not "entitled" to the classification and the petition was ultimately revoked. Section 106(c) of 
AC21 does not repeal or modify sections 204(b) or 245 of the Act, which require applicants to have an 
approved petition prior to being granted immigrant status or adjustment of status, nor did it repeal or modify 
section 205 of the Act to grant any immunity from revocation, as proposed by counsel. Accordingly, this 
petition cannot be deemed to have been "valid" for purposes of section 106(c) of AC21. 
In conclusion and as a final note on this issue, while section 106(c) did not create any right to immunity or 
protection from section 205 of the Act, it is recognized that, absent revocation, this section does provide 
adjustment of status applicants with a restricted benefit to change jobs assuming the underlying 1-140 is bona fide 
and valid. Again, however, section 106(c) is based on the underlying assumptions that the 1-140 petition had 
been approved and had not been revoked. Despite the time it may have taken CIS to revoke a petition, it is 
assumed that, whether the petition was processed within six months or six years, any problems and issues would 
be found before the 1-485 adjustment application was adjudicated, as was the case in the instant petition. 
Contrary to the assertions of counsel, for the reasons discussed above, there is no evidence that Congress intended 
"Secretary of Homeland Security" and by striking the final two sentences requiring that notice of revocation 
be sent to the petitioner and the Secretary of State. 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, in revisiting the revocation provisions of the INA following the enactment of AC21, 
instead of weakening CIS authority to revoke previously approved petitions, Congress has instead reaffirmed 
and strengthened this administrative power. 
Page 11 
section 106(c) of AC21 to convey a right to an automatically approved 1-140 petition or protection from section 
205 revocation simply based on the passage of time. 
The third issue in this proceeding is whether the petition in this matter was properly revoked. On appeal, counsel 
for the third party questions whether the revocation of Si Wei, Inc.'s 1-140 petition was arbitrary and capricious 
and based upon unsupported and irrelevant conclusions. 
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 of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 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. 3 245.1 (a). If the beneficiary of an approved visa 
petition was ineligible or 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. 3 1155, for "good and sufficient ca~se."~ 
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). 
As previously indicated, the petitioner in this matter endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(l)(C) of the Act, 8 U.S.C. fj 1153(b)(l)(C), as a 
multinational executive or manager. Specifically, 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): 
* * * 
9 
On appeal, counsel infers that a petition may only be revoked when a finding of fraud or misrepresentation 
has been entered. 
 Section 205 of the Act, however, clearly indicates that a finding of fraud or 
misrepresentation is not required; a revocation only requires "good and sufficient cause," which includes but 
does not require fraud or misrepresentation. 8 U.S.C. 3 1155. By itself, a director's realization that a petition 
was incorrectly approved is good and sufficient cause for the issuance of a notice of intent to revoke an 
immigrant petition. Matter ofHo, 19 I&N Dec. 582,590 (BIA 1988). 
(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 aff~liate 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. 9 204.56)(5). 
To assess the petitioner's eligibility to classify the beneficiary as a multinational manager or executive, the 
AAO must first address whether the petitioner has established a qualifying relationship with the beneficiary's 
foreign employer. In order to qualify for this visa classification, the petitioner must establish that a qualifylng 
relationship exists between the United States and foreign entities in that the petitioning company is the same 
employer or an affiliate or subsidiary of the foreign entity. See section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. § 204.56)(2) states in pertinent part: 
Aflliate 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 qualifylng 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 an October 25, 1996 letter appended to the petition, the petitioner initially stated: is one of the 
branch companies of of P.R. China since January 1995." The 
petitioner submitted its Articles of Incorporation showing that it was incorporated in October 1994 and was 
authorized to issue 1,000,000 s 
 k certificate number 1 
showing 100,000 shares issued to 1 1, 1995. The record 
also contains an October 25, 19 letterhead and bearing 
the chop of the ity indicates that the 
foreign entity holds 100,000 of the petitioner's shares representing 100 percent of the petitioner's total shares 
issued. 
On this limited information regarding the qualifying relationship between the beneficiary's foreign employer 
and the petitioner, the director approved the petition. 
Based on an October 28, 1998 interview with the beneficiary in conjunction with the beneficiary's 1-485 
application and subsequent review of the beneficiary's alien file, the district director observed that: the 
beneficiary had entered the United States on September 30, 1996 with an L-1A nonimmigrant intracompany 
to substantiate the existence of the foreign entity and any United States subsidiaries of the foreign entity. The 
district director in his request to the overseas office indicated that fraud was suspected. 
The overseas investigator interviewed the beneficiary on July 6, 2000 on the premises of the 
in China. 
 The beneficiary claimed his United States subsidiary 
. ad that- was his business partner. 
The investi ator noted that the beneficiary amended his statement to indicate that 
his United States company was 
As a result of the investigation and an in-depth review of the files relating to this proceeding, the director 
lo It is noted for the record that the petitioner failed to provide evidence of the beneficiary's employment 
11 
The California Service Center director thoroughly details the numerous inconsistencies contained in this 
record, details the investigator's report by repeating it verbatim, and details the several letters and documents 
in support of the petition by repeating them verbatim. The AAO only highlights the inconsistencies that 
submitted in support of a qualifying relationship, the complete results of the overseas investigation, and the 
numerous inconsistencies in the record regarding the petitioner's claimed organizational structure, its 
purported associated enterprises, its claims of doing business under various names, and the very nature of its 
business. The director requested in the NOR, among other things, evidence that the claimed foreign parent 
company paid for the stock issued and that the petitioner, as presented in the 1-140, continued to operate as a 
viable, ongoing business concern, as opposed to a front or paper entity or agent in the United States. 
The petitioner, . did not respond to the NOIR. As previously noted, a director's decision to revoke 
the approval of a petition will be affirmed on appeal when a petitioner fails to offer a timely explanation or 
rebuttal to a properly issued notice of intent to revoke. Matter of Arias, 19 I&N Dec. at 569. 
Instead. the beneficiarv indicated in a March 3 1. 2004 statement that he was one of the major shareholders of 
matter, and owned 
claimed ownership 
in the petitioner.'2 
The director revoked the approval after detennining that: (1) the petitioner had not responded to the NOIR; (2) 
even if the beneficiary's statement was considered, as one of the petitioner's purported officials, the statement 
acknowledged the circumstances surrounding the inconsistencies and misrepresentations of the petition; and, (3) 
the beneficiary's belated attempt to make a deficient petition comply with CIS requirements was unacceptable 
under Matter of Izummi, 22 I&N Bec. 169, 176 (Assoc. Cornm. 1998). 
On appeal, counsel for the beneficiary questions whether the revocation of 
 I- 140 petition was 
arbitrary and capricious and based upon unsupported and irrelevant conclusions. As the director noted, the 
beneficiary's co~nsel'~ does not represent the petitioner, the affected party in these proceedings. See 8 C.F.R. 
033(a)(l)(iii)(B). 
 The MO is compelled to note, however, that the director thoroughly discusses the 
inconsistencies in the documentation submitted in support of the petition and the law applicable to the issue of 
qualifying relationship and the revocation of the approval of this petition. Moreover, the MO observes that the 
petitioner did not present evidence that the foreign entity actually invested funds in the petitioner, even though the 
required the issuance of the Notice of Intent to Revoke and will not repeat the numerous problems recognized 
and detailed by the director. 
12 
 A brochure submitted as part of the record indicates that the beneficiary was the general manager of the 
but this document does not provide any information regarding the ownership of this 
hip with either the petitioner or the 
- 
l3 As indicated previously, while counsel may represent the beneficiary with regard to the 1-485 adjustment 
application, there is no evidence that counsel represents the beneficiary, or more importantly, Si Wei, Inc. 
with regard to the 1-1 40 revocation proceeding. 
Page 15 
director requested this evidence and such evidence should have been available to the beneficiary as the individual 
associated with the foreign entity's investment. Failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). The AAO 
concludes that the director's NOlR and decision were properly issued for "good and sufficient causet' and were 
based on the facts and law applicable to those facts. The petitioner has submitted no evidence to overcome the 
director's decision on this issue. 
Second, to further assess the petitioner's eligibility to classify the beneficiary as a multinational manager or 
executive, the AAO must also address whether the petitioner has established that the beneficiary will be 
employed in a managerial or executive capacity for the United States entity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. manages the organization, or a department, subdivision, function, or 
component of the organization; 
11. 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
iii. 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
iv. 
 exercises discretion over the day to day operations of the activity or function 
for which the employee has authority. 
 A first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. 
 directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
. . . 
111. 
 exercises wide latitude in discretionary decision making; and 
iv. 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In an October 25, 1996 letter appended to the petition, the petitioner indicated that the beneficiary's major job 
functions for the petitioner would include: 
1. To direct and manage overall operations of our USA branch company; 
2. To develop and implement company management system; 
3. To develop and expand the markets in USA and North America; 
4. To coordinate between USA branch company and China main company; 
5. To negotiate and sign up major buyinglselling and joint venture contracts; 
6. To conduct personnel authority as to hire/fire and assign proper jobs of the US entity[.] 
[The beneficiary] shall report directly to China main company periodically. 
The petitioner also listed the names of four of its employees and brief descriptions of their job duties. The list 
did not include the beneficiary. 
We hereby confirm the permanent employment offer to [the beneficiary] with our USA 
branch. [The beneficiary] has been working for ' which is one 
of our USA branch companies under his L-1A working visa status since August 1996. As 
President of our USA branch, he has successfully established the management system of this 
US operation and lead [sic] our USA operation on to a very potential direction. We believe 
that [the beneficiary] shall be a valuable asset to our organization. 
In a February 16, 1997 response to a request for additional evidence, the petitioner again listed several 
employees and their job titles. The list of employees and positions does not correspond to the initial list of 
employees and job duties. The director's initial approval of the petition was based on the vague and 
nonspecific description of the beneficiary's job duties and questionable evidence relating to the petitioner's 
employees. 
In the director's March 12, 2004 NOR, the director detailed the evidence supplied in support of the petition, 
noting inconsistencies regarding the petitioner's organizational structure contained in documentation 
submitted in support of the beneficiary's 1-485 application. The director determined that the petitioner's 
description of the beneficiary's duties lacked specificity regarding the type of duties the beneficiary 
performed and the managers he supervised. The director determined that the record did not contain sufficient 
evidence to establish that the beneficiary had been and would be working in an executive or managerial 
capacity. 
As previously noted, the petitioner did not respond to the director's NOIR. See Matter of Arias, 19 I&N Dec. 
at 569. The beneficiary did not address the issue of managerial or executive capacity in his statement. The 
director determined that: (1) the petitioner had not responded to the NOIR; (2) even if the beneficiary's statement 
was considered, as one of the petitioner's purported officials, the statement acknowledged the circumstances 
surrounding the inconsistencies and misrepresentations of the petition; and, (3) the beneficiary's belated attempt 
to make a deficient petition comply with CIS requirements was unacceptable under Matter of Izummi, 22 I&N 
Dec. at 176. 
On appeal, counsel for the beneficiary questions whether the revocation of 
 1-140 petition was 
arbitrary and capricious and based upon unsupported and irrelevant conclusions. Again, as the director noted, 
the beneficiary's counsel does not represent the petitioner, the affected party in these proceedings. See 8 
C.F.R. !j 103.3(a)(l)(iii)(B). Moreover, other than the vague descriptions provided by the petitioner, the 
record lacks any evidence that the beneficiary's duties for the petitioner were or would be primarily 
managerial or executive. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Cornm. 1972). The initial description of the beneficiary's duties for the petitioner simply 
paraphrased the statutory requirements of both managerial and executive capacity. See section 
101 (a)(44)(A)(iii) and 101 (a)(44)(B)(i)(ii) of the Act. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Regardless, for the reasons detailed above, the director's revocation was proper and his decision will be 
affirmed. 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). Because the petitioner failed to respond to the NOIR, the director's decision to revoke approval was 
proper. Accordingly, the approval is revoked, retroactive to the date of the original approval. See 9 205 of 
the Act ("Such revocation shall be effective as of the date of approval of any such petition."). 
As a final note, although the 1-140 petition is referenced andlor reviewed for the purpose of assessing and 
comparing a beneficiary's new job under the portability considerations of AC21 to that of the sponsored position, 
the AAO finds that the eligibility of this new position is a separate issue that is part of the adjudication of the 
beneficiary's 1-485 application, not the 1-140 revocation decision.14 As previously noted, no appeal lies from the 
denial of an application for adjustment of status under section 245 of the Act, 8 C.F.R. !j 245.2(a)(5)(ii). 
l4 The AAO observes for the record, however, that., the beneficiary's purported new 
employer, does not provide a description of the beneficiary's existing or proposed duties. Thus, even if the 
eligibility of the new position were subject to review as part of the appeal of the 1-140 revocation, the 
In conclusion and for the reasons stated above, the AAO finds that (1) AC21 did not grant any rights or benefits 
to in this matter such that it could be considered a "successor employer" or "beneficial 
owner" of the instant 1-140 petition; (2) the revoked petition in this matter cannot be deemed to have been "valid" 
for purposes of section 106(c) of AC21; and (3) the 1-140 petition was 
beneficiary has no recognized claim under section 106(c) of AC21 and, as 
 not the 
petitioner and is thereby not a recognized party in this matter, neither it 
instant appeal. 8 C.F.R. $ 205.2(d); 8 C.F.R. 9 103.3(a)(l)(iii)(B); 8 C.F.R. 9 103.3(a)(2)(v)(A)(l). The appeal 
must therefore be rejected. 
Finally, regarding counsel's request for oral argument, the regulations provide that the "affected party" must 
explain in writing why oral argument is necessary. 8 C.F.R. 5 103.3@)(1). Furthermore, CIS has the sole 
authority to grant or deny a request for oral argument and will grant oral argument only in cases involving unique 
factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. $ 103.3@). In this instance, 
counsel simply stated that novel issues are present in this proceeding and asserted that jurisdiction is with the 
AAO. Even if counsel persuaded this office why he could not adequately address the issues in this matter in 
writing, as explained and for the reasons stated herein, counsel is not and does not represent an affected party in 
this proceeding. Therefore, the request for an oral argument fi-om counsel for an unaffected party is not properly 
received and must be denied. 
Even if the appeal had been properly filed, the petition would 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. 
$ 136 1. Here, that burden has not been met. 
ORDER: The appeal is rejected. The decision of the director is affumed. 
information in the record is not adequate to establish that the beneficiary's assignment for the new employer 
is in the same or similar occupational classification as the job for which the petition was filed.