dismissed EB-1C Case: Marketing

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBtlC COpy 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
INRE: 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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner subsequently filed a motion to reconsider, which the director dismissed. The matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a United States corporation that seeks to employ the beneficiary as its vice president of 
membership and marketing. 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. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner did not have a qualifying 
relationship with the beneficiary's foreign employer at the time the Form 1-140 was filed and that it is 
therefore ineligible for the immigration benefit sought in the present matter. 
On motion, counsel argued that the director abused his discretion by making a decision that is not in accord 
with statutory or regulatory mandates. Counsel further contended that there is no legal requirement for a 
qualifying relationship to exist at the time of filing the petition. 
In a decision dated July 21, 2009, the director dismissed the motion, concluding that the petitioner failed to 
cite to precedent decisions that establish that the prior decision was incorrect based upon the evidence of 
record at the time of the initial decision. 
On appeal, counsel reasserts the arguments previously made on motion, focusing on the petitioner's continued 
multinational presence through its various foreign subsidiaries. Counsel also refers to a service memorandum 
that discusses the Adjudicators Field Manual, which specifically requires that the petitioner be doing business 
through at least one qualifying organization abroad. Counsel persists in her original argument, contending 
that the petitioner is not required to maintain a qualifying relationship with the beneficiary's foreign employer 
at the time the Form 1-140 is filed. 
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): 
* * * 
(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 affiliate 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. 
.. 
Page 3 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
Here, the petitioner filed a motion to reconsider. Based on the content of counsel's brief, the director 
determined that the petitioner's submissions were insufficient to meet the requirements of 8 C.F.R. § 
103.5(a)(3), which states the following, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or USCIS policy. A motion to reconsider a decision on an application or 
petition must, when filed, also establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 
In reviewing the regulatory provisions concerning the filing of a motion to reconsider, the AAO finds that the 
director did not err in dismissing the motion. In her brief, counsel cited to case law that set a legal standard 
for determining what is deemed to be an abuse of discretion and referred to a memorandum in an attempt to 
contradict the propriety of the director's decision. However, neither citation met the requirements of a motion 
to reconsider. Merely asserting that the director's decision amounted to an abuse of discretion is not 
persuasive in light of a decision that was firmly based on the director's interpretation of relevant statutory 
provisions. Furthermore, with regard to counsel's reference to a memorandum, the AAO notes that USCIS 
memoranda merely articulate internal guidelines for service personnel; they do not establish judicially 
enforceable rights. An agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th 
Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th Cir.1987)). 
Lastly, the AAO notes that even if the petitioner's motion to reconsider had been granted, the petition would 
nevertheless have been denied based on the fact that counsel's brief did not overcome the petitioner's 
ineligibility in that counsel failed to establish that the petitioner had a qualifying relationship with the 
beneficiary's foreign employer at the time the Form 1-140 was filed. To establish a "qualifying relationship" 
under the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the 
proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent 
and subsidiary" or as "affiliates." See generally § 203(b)(1 )(C) of the Act, 8 U.S.C. § 1153(b)(1 )(C); see also 
8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The primary basis for counsel's dispute is the assertion that there is no statutory or regulatory provision that 
requires the petitioner to establish the existence of a qualifying relationship between the petitioner and the 
beneficiary's foreign employer at the time of filing the petition. Counsel is incorrect. The regulations 
pertaining to the filing of an 1-140 petition under section 203(b)(1 )(C) of the Act expressly state that the 
petitioner must establish the beneficiary's "prospective employer in the United States is the same employer or 
a subsidiary or affiliate of the firm or corporation or other legal entity" which employed the beneficiary 
abroad. 8 C.F.R. § 204.5(j)(3)(i)(C). Thus, if the petitioner does not operate abroad through an affiliate or 
subsidiary, the record must show that the petitioner and the beneficiary's foreign employer are the "same 
employer" in the immigrant context. See 8 C.F.R. § 204.5(j)(3)(C). The regulation'S use of the word "is" 
prescribes that the relationship between the petitioner and the beneficiary's foreign employer must exist in the 
present, i.e., at the time of filing the petition, and it must continue to exist until such time as the beneficiary is 
Page 4 
granted an immigrant visa or adjusts status to that of a permanent resident of the United States. The 
petitioner's burden of establishing eligibility for the benefit sought is not discharged until the immigrant visa 
is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
In direct contradiction to the express language in the relevant regulatory provision, counsel's reasoning 
focuses on the petitioner's circumstances prior to the filing of the Form 1-140, thereby suggesting that 
eligibility need not be present at the time of filing the petition so long as the petitioner established that it met 
the relevant regulatory provisions at some time in the past. This line of reasoning suggests that once a 
qualifying relationship is established as having existed, the petitioner can continue relying on that old 
qualifying relationship for a petition filed in the future, even if the relationship ceases to exist prior to the time 
of filing, as is the case in the present matter. The AAO cannot agree with counsel's interpretation. Precedent 
case law specifically requires that each petitioner establish its eligibility at the time of filing the petition. 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
The facts presented by the petitioner in this matter indicate that the circumstances that would have rendered 
the petitioner eligible for the immigration benefit sought did not occur contemporaneously with the filing of 
the Form 1-140. Rather, by the time the petitioner filed the Form 1-140, it was longer eligible for the 
immigration benefit it was seeking because of the termination of the petitioner's ownership interest in the 
beneficiary's foreign employer. It would be factually impossible for the petitioner to establish an ongoing 
qualifying relationship with a foreign entity with which the petitioner does not share common ownership and 
control. 
In this matter, it is recognized that the petitioner continues to conduct business in two or more countries, one 
of which is the United States. However, the issue here is not whether the petitioner meets the definition of 
multinational under 8 C.F.R. § 204.5(j)(2), but whether it maintained (at the time the petition was filed) and 
continues to maintain a qualifying relationship with the separate legal entity that employed the beneficiary 
abroad. As the petitioner did not have a qualifying relationship with the beneficiary's foreign employer at the 
time the Form 1-140 was filed, the director could not have approved this petition. 
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 dismissed.