dismissed EB-1C Case: Management

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prevent ':ltany Jnwarranted 
invasion of personal priv~y 
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File: Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration SelVices 
Office of Administrative Appeals MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: SEP 1 4 2010 
Petition: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § lI53(b)(1)(C) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § \03.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
jPerry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
Page 2 
DISCUSSION: The preference visa petition was approved on February 21, 1998, Pursuant to infonnation 
discovered during a subsequent review of the matter, the Director, Texas Service Center, detennined that the 
petitioner was not eligible for the immigration benefit sought and, therefore, issued a notice of intent to 
revoke (NO[R) 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, claiming to be a u.S. corporate entity, sought 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)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 11S3(b)(1)(C), as a 
multinational executive or manager. 
Pursuant to an investigation conducted after the petitioner's Form 1-140 was approved, the director detennined 
that the petitioner was not a bona fide u.S. entity conducting business in the United States. As such, the 
director detennined that the petitioner was ineligible to classifY the beneficiary as a multinational manager or 
executive. 
The record shows that subsequent to the approval of a Form [-140 filed on behalf of the beneficiary, the 
Department of State detennined that the entity that filed the Fonn 1-140 was a paper company set up for the 
purpose of facilitating immigration benefits to the beneficiary and members of her family. 
On January 14,2010, U.S. Citizenship and Immigration Services (USCIS) issued a notice of intent to revoke 
the approval of the petition (NOIR) and sent that notice to the petitioner's latest known address of record. The 
petitioner was allowed 33 days in which to respond to the NOIR. The record shows that the beneficiary 
submitted a letter dated February 15, 2010, asking USCIS to grant the petitioner additional time in which to 
respond to the adverse infonnation contained within the NOIR. Although the beneficiary indicated that 
evidence andlor infonnation would be submitted to show why the approval of the petition should not be 
revoked, no further infonnation was provided in the February 15, 2010 letter. The record shows a service 
letter dated February 19,2010, acknowledging receipt of the beneficiary'S correspondence. 
In a notice dated March 17, 2010, the director issued a decision revoking approval of the petition. The 
director's decision was based on the petitioner's failure to respond to the NOIR. 
On appeal, statements are submitted by the beneficiary and by 
company president, both questioning the propriety of the director's 
petition. 
the petitioner's alleged 
decision to revoke approval of the 
As a threshold issue, the AAO notes that the beneficiary of a visa petition is not a recognized party in a 
proceeding. 8 C.F.R. § 103.2(a)(3). As such, it is not clear that the beneficiary was authorized to act on 
behalf of the petitioner by requesting an extension of time in which to respond to the NOIR. The AAO 
further notes that, even if the beneficiary were deemed an authorized representative of the petitioning entity, 
there is no statute or regulation that requires USC[S either to grant an extension oftime in which to respond to 
an NOIR or to respond to the petitioner's request for such an extension. 
Page 3 
[n light of the above, it is noted that a revocation 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 intention to revoke. See Matter of Arias, [9 [&N Dec. 568, 569 (B[A 1988). 
[n the instant matter, the record clearly shows that the petitioner did not respond to a properly issued NO[R. 
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 the NOIR, the record is 
devoid of evidence to establish that the petitioner meets the regulatory filing requirements that are described 
at 8 C.F.R. § 204.5(j)(3)(i) and 8 C.F.R. § 204.5(j)(5), which instruct the petitioner to provide sufficient 
evidence to establish (1) that the beneficiary was employed abroad by a qualifYing foreign entity for at least 
one out of the three years that preceded the filing of the petition; (2) that the petitioner and the beneficiary's 
foreign employer have a qualifYing relationship as defined at 8 C.F.R. § 204.5(j)(2); (3) that the petitioner 
was doing business in a regular, continuous, and systematic manner for at least one year prior to the date the 
petition was filed; and (4) that the beneficiary would be employed by the u.s. petitioner within a qualifYing 
managerial or executive capacity. 
Based on statements that Mr. _ made on appeal, the delay in the issuance of his L-l nonimmigrant visa 
resulted in his coming to the United States for only a brief period of time during which he purportedly 
conducted market research in preparation to conduct business through the u.s. entity. Mr._ stated that 
shortly after the beneficiary's arrival as a BI/B2 nonimmigrant, he returned to the Ukraine and was unable to 
come back to the United States. Based on these statements and in light of the evidence of record, it cannot be 
concluded that the petitioner was doing business in the United States during the time and in the manner 
prescribed by 8 C.F.R. § 204.5(j)(3)(i)(D). The record is also devoid ofajob description of the beneficiary's 
foreign or proposed U.S. employment, thus making it impossible to conclude that she was either employed 
abroad or that she was and would be employed in the United States in a qualifYing managerial or executive 
capacity. Lastly, while the record contains Mr. _s statements describing an alleged qualifYing 
relationship between the foreign and U.S. entities, there is no documentary evidence to substantiate this claim. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Saffici, 22 [&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 [&N Dec. 190 (Reg. Comm. 1972». 
Finally, the AAO will address Mr. _'s attempt to invoke protection under the American 
Competitiveness in the Twenty-First Century Act (AC21), Pub. L. No. 106-313, 114 Stat. 1251 (Oct. 17, 
2000). Section I 06( c) of AC21 amended section 204 of the Act. The "portability provision" at section 204(j) of 
the Act provides that "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." 
Mr. ""s and the beneficiary's references to the provisions of section 204(j) of the Act, however are 
unnecessary, as the statutory benefits of section 106(c) of AC21 apply only in the event that the petitioner can 
establish that the Form [-140 was valid at the time of approval, as it must first be valid in order to "remain 
Page 4 
valid." In light of the above discussion, it is determined by the AAO that the petitioner has failed to establish 
that its Form 1-140 was valid at the time of approval. As such, the statutory benefits of section 1 06( c) of AC21 
do not apply in the present matter. 
USCIS 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. § 24S.I(a). If it is determined that the beneficiary of an 
approved visa petition was not eligible for the classification sought at the time of filing, the director may seek 
to revoke his approval of the petition pursuant to section 205 of the Act, 8 U.S.c. § 1155, for "good and 
sufficient cause." Notwithstanding the USCIS 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 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. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dism issed.