dismissed EB-1C Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-P-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 27, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a manufacturer of tissue paper products, seeks to permanently employ the Beneficiary 
as a technical director-product development and plant manager under the first preference EB-1 
immigrant classification for multinational executives or managers. See Immigration and Nationality 
Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. 
employer to permanently transfer a qualified foreign employee to the United States to work in an 
executive or managerial capacity. A qualified employee must have worked for a related foreign entity 
for one year in the three years preceding the filing of the petition or preceding his or her admission to 
work for the Petitioner as a nonimmigrant. This decision addresses some finer points of this "one-in­
three" rule. 
The Director of the Nebraska Service Center denied the petition, and a subsequent motion to 
reconsider, concluding that the record did not establish, as required, that the petitioning organization 
employed the Beneficiary abroad for at least one year during the three years preceding his September 
2014 entry to work for the Petitioner as a nonimmigrant. In particular, the Director found that there had 
been an interruption of approximately four years between the Beneficiary's foreign employment 
with the Petitioner's affiliate and his U.S. employment with the Petitioner. The Director declined to 
look to the three-year period preceding the Beneficiary's earlier entry to work for the Petitioner in 2008 
because the Beneficiary had later worked for an umelated U.S. employer for several years prior to 
returning to the Petitioner in 2014. 
On appeal, the Petitioner asserts its eligibility for this classification because, as required by the plain 
language of the regulations, the Beneficiary worked for the Petitioner's overseas affiliate 
immediately before he initially entered the United States in 2008 to work for the Petitioner. The 
Petitioner maintains that the regulations do not preclude a post-entry interruption in employment as 
·long as the Beneficiary is working for the Petitioner as a nonimmigrant at the time of filing the EB-1 
petition. 
Upon de novo review, we will dismiss the appeal. 
Matter of S-P-, Inc. 
I. LEGAL FRAMEWORK 
Multinational managers and executives who have been employed outside of the United States for at 
least one year may immigrate to the United States to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. If the 
beneficiary is outside the United States, the petitioner must demonstrate that the beneficiary's one year 
of qualifying foreign employment occurred within the three years immediately preceding the filing of 
the petition. If the beneficiary already works in the United States for the petitioner, or its affiliate or 
subsidiary at the time of filing, the petitioner must demonstrate that the beneficiary's year of foreign 
employment occurred in the three years preceding his or her entry as a nonimmigrant. See 8 C.F.R. 
§ 204.5G)(3)(i). 
II. DISCUSSION 
The Beneficiary in this case currently works for the Petitioner as a nonimmigrant and therefore the 
Petitioner must show that his foreign employment occurred in the three years preceding his entry as 
a nonimmigrant. At issue is whether we should look at the three-year period preceding his initial 
entry to work for the Petitioner, or the three-year period preceding his entry to work for the 
Petitioner after an extended period of employment with a different U.S. employer. The Beneficiary 
worked for the Petitioner's affiliate in Indonesia for more than one year, until January 2008, when he 
entered the United States to work for the Petitioner. He ceased employment with the Petitioner in 
September 2010, and his next documented employment was with an unrelated U.S. employer from 
April 2011 to July 2014. Thereafter, the Beneficiary departed the United States, butreturned in 
September 2014 to work for the Petitioner. 
The Director determined that the Petitioner did not establish that the Beneficiary had been employed 
abroad in a qualifying managerial or executive capacity 1 for at least one year during the three years 
preceding his entry to the United States to commence employment with the Petitioner in September 
2014, because of the intervening years spent working for an unrelated company. 
On appeal, the Petitioner points to the plain language of 8 C.F.R. § 204.5(j)(3)(i)(B) and asserts that 
the relevant three-year period was prior to the Beneficiary's first nonimmigrant entry in 2008, and 
that a subsequent change ofU.S. employers does not disqualify the Beneficiary from the immigrant 
classification that the Petitioner seeks on his behalf. 
We disagree. Statutes and regulations must be read as a whole, and interpretations should be 
consistent with the plain purpose of the Act. Under the Petitioner's interpretation of 8 C.F.R. 
§ 204.5(j)(3)(i)(B), any beneficiary who had worked as a manager or executive for a qualifying 
foreign entity for one year during the three years preceding entry would remain eligible indefinitely 
1 
The record shows that the Beneficiary worked as a quality control deputy general manager for the Petitioner's affiliate 
in Indonesia for more than one year, until January 2008. Whether the Beneficiary was employed in a qualifying capacity 
abroad is not at issue in this case. 
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Matter ofS-P-, Inc. 
for immigrant multinational classification, as long as he or she was initially admitted to work for the 
multinational organization and eventually returned to its employ prior to filing the immigrant 
petition. We decline to construe the statute and regulations as establishing a more lenient standard 
for a beneficiary already in the United States than for one seeking admission from abroad. A single 
nonimmigrant entry to work for the petitioner does not permanently qualify a beneficiary for EB-1 
classification, regardless of the passage of time and changes of employment that occur after that 
entry. 
According to the statute, the relevant period during which a beneficiary must have had one year of 
managerial or executive employment abroad is the three years "preceding the time of the alien's 
application for classification and admission into the United States under this subparagraph." Section 
203(b )(1 )(C) of the Act. The statute, however, is silent with regard to those who have already been 
admitted to the United States in a nonimmigrant classification. In promulgating the implementing 
regulations, the former Immigration and Naturalization Service concluded that it was not the intent 
of Congress to disqualify employees who had already been transferred to the United States to work 
within the same corporate group. See 56 Fed. Reg. 30703, 30705 (July 5, 1991 ). Thus, the 
regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) allows U.S. Citizenship and Immigration Services to look 
beyond the three-year period immediately preceding the filing of the I-140 petition when the 
beneficiary is already employed by a qualifying U.S. entity. Without such a provision, a beneficiary 
employed in the United States by a qualifying organization in a nonimmigrant status for more than 
two years would not be eligible for immigrant classification as a multinational manager or executive. 
That said, both the statute and the regulations focus on the continuity of the beneficiary's 
employment with the same multinational organization. This is consistent with the purpose of the 
.intracompany transferee visa classification, to facilitate the transfer of multinational businesses' key 
personnel. 2 The statute and regulations clearly sever eligibility for this multinational visa 
classification for a beneficiary who is outside the United States if there was an interruption longer 
than two years in employment with the petitioner's multinational organization during the three years 
prior·to filing the immigrant visa petition. Such a beneficiary, regardless of earlier employment, 
cannot establish one year of qualifying employment in the three years prior to the filing of the 
petition. That beneficiary would require additional qualifying employment abroad, adding up to at 
least one year during the three years prior to filing, before a U.S. petitioner could file an EB-1 
petition on his or her behalf. 
We construe the statute and regulations to apply the same rule whether the interruption occurred 
during the three years prior to the beneficiary's admission as a nonimmigrant or after his or her entry 
to the United States. A beneficiary who worked as a manager or executive for a qualifying 
multinational organization for one year or longer, but who then left the organization for a period of 
two years or longer, is ineligible for this immigrant visa classification. To cure the interruption in 
2 
"[T]he need of multinational business to transfer key personnel around the world as non immigrants is paralleled in this 
category to allow a basis upon which these individuals may immigrate." See H.R. Rep. No. I 01-723 ( 1990), reprinted in 
1990 U.S.C.C.A.N. 6710,6739, 1990 WL 200418 (Leg. Hist.). 
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Matter ofS-P-, Inc. 
employment, such a beneficiary would require an additional year of qualifying employment abroad 
before he or she could once again qualify. 
We agree with the Petitioner that a period of employment with a different U.S. employer would not 
automatically disqualify a beneficiary. However, a break in qualifying employment longer than two 
years will interrupt a beneficiary's continuity of employment with the petitioner's multinational 
organization. Such breaks may include, but are not limited to, intervening employment with a 
different U.S. employer or periods of stay in a nonimmigrant status without work authorization. 
In this case, the Beneficiary was admitted to the United States to work for the Petitioner in H -1 B 
nonimmigrant status, left its employ for nearly four years to work for an unrelated U.S. employer, 
and then returned to work for the Petitioner. Although he resumed employment with the Petitioner 
after that interruption, he can no longer establish eligibility based on the three-year period of 
employment that immediately preceded his 2008 admission to the United States. As a result, the 
appropriate reference point is the date on which the Beneficiary entered the United States to begin 
working for the Petitioner, which is September 2014 (his U.S. employment with the Petitioner began 
shortly afterward in October 2014). 
III. CONCLUSION 
As the Beneficiary was not employed for at least one year by a qualifying foreign entity between 
September 2011 and September 2014, the Petitioner cannot establish his eligibility as a multinational 
manager or executive as ofthe petition's filing date on November 12, 2014. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-P-, Inc., ID# 16796 (AAO July 27, 2017) 
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