dismissed EB-1C Case: Mobile Technology

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MATTEROFN- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 13,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a producer of mobile devices, sought to permanently employ the Beneficiary as a 
senior manager , patent licensing , under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(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. 
The Director, Nebraska Service Center, denied the petition, concluding that the evidence of record 
did not establish that: (1) the intending U.S. employer still has a qualifying relationship with the 
Beneficiary's ~ former foreign employer; and (2) the Beneficiary was employed abroad, and will be 
employed in the United States, in a managerial or executive capacity. By the time the Director denied 
the petition, the Petitioner had ceased to exist. a separate but related entity, appealed 
the decision. 
We withdrew the Director's decision and remanded the petition back to the Director for a new decision 
on two issues: (1) whether a qualifying relationship existed between the petitioner and the 
foreign employer between July 2009 and July 2012; and (2) whether the beneficiary qualifies for 
portability under section 204(j) of the Act, 8 U.S.C. § 1154(j). The Director denied the petition a 
second time, finding that a qualifying relationship did exist during the relevant period, but that the 
petition could not be approved because: (I) the original job offer no longer exists and therefore 
section 204(j) of the Act does not apply; and (2) cannot qualify as the Petitioner's 
successor -in-interest. 
The matter is now before us on appeal. In its appeal, asserts that the Director erred 
by disregarding the provisions of section 204(j) of the Act that allow a beneficiary to change 
employers when a Form I-485, Application to Register Permanent Residence or Adjust Status, has 
been pending for more than 180 days. 
Upon de novo review, we will dismiss the appeal. 
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Matter of N- Inc. 
I. LAW 
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 the alien 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. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classizy a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
II. ANALYSIS 
A petition for a multinational manager or executive must be tiled by the U.S. employer that intends 
to employ the beneficiary. See 8 C.P.R. § 204.50)(1). The petition must include a job offer from 
that employer. See 8 C.P.R. § 204.5(j)(5). The key issue in this proceeding is whether the 
petitioner's job offer still exists. For the reasons discussed below, we find that it does not. 
A. Chronology 
The Petitioner, a subsidiary of filed its Form T-140 n~titi<;>n on the 
Beneficiary's behalf on 2013. months later, on 2013, the 
Beneficiary transferred from to a newly incorporated affiliate, This 
transfer resulted from the parent company's decision to stop manufacturing mobile devices and sell 
its mobile device operation to while retaining some of staff 
In a sworn statement signed on 
global human resources manager at 
2013, and notarized the following day, 
stated: 
Effective ... initiated a corporate restructuring 
that will occur over several months, with the ultimate goal of divesting substantially 
all of our parent company's assets and liabilities in our Devices and Services business 
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Matter of N- Inc. 
to Specifically ... those assets and liabilities that were formerly held by 
and that are not being divested to were transferred from 
to on \ .... 
As part of the above-referenced corporate restructuring, employees of who 
are not affiliated with our Devices and Services business became employees of 
also assumed employment liabilities and obligations for 
these employees .... 
assumes all immigration-related obligations, liabilities and 
undertakings arising from or under the attestations made by as well as the 
corresponding assets, on behalf of the employees transferring to 
As a result, operates as a successor-in-interest employer to 
for immigration matters with._respect to the transferring employees. 
On . 2014, finalized its purchase of "substantially all of Devices 
& Services business." The sale resulted in the dissolution of several subsidiaries , 
including the Petitioner 1 and (the Canadian subsidiary that had 
employed the Beneficiary from 2008 to 2012). The Local Share Transfer Agreement which 
formalized the sale in Canada referred to "the Stock and Asset Purchase Agreement ... entered into 
asof : 2013." 
B. Identit)~ of the Petitioner and Successorship-in- Interest 
Throughout this proceeding, has maintained that it is the successor-in-interest to 
at least for immigration purposes. However, we need not 
explore the successorship issue 
in greater depth. While there is precedent allowing a successor-in-interest to use a labor certification 
that pertains to the prior entity, 1 has cited no authority to show that a successor-in­
interest can take the place of the prior company within the context of an EB 1 Multi-National 
Executive or Manager petition that has already been filed. A 2009 memorandum addresses this: 
Successor-in-interest determinations are principally relevant to the continuing validity 
of a labor certification . . .. An employer seeking to classify the alien as an EB I 
Multi-National Executive or Manager ... must tile a new 1-140 petition and establish 
the alien 's eligibility under the requested category's specific eligibility requirements. 
lvfemorandum from Donald Neufeld, Acting Associate Director; Domestic Operations. USCIS. HQ 
70/6.2. AD 09-37, Successor-in Interest Determinations in Adjudication of Form I-140 Petitions : 
Adjudicator's Field Manual (A FM) Update to Chapter 2 2. 2 (b )(5) G4 D09-3 7) I 0 (August 6, 2009). 
http :!/www. usc is. gov/laws/policy-memoranda. 
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Matter of Dial Auto Repair Shop. Inc., 19 I&N Dec. 481 (Comm 'r 1986). 
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Matter of N- Inc. 
The quoted passage was also incorporated into the Adjudicator's Field Manual at chapter 
22.2(b)(5)(D). has, at various times, cited and quoted other parts of the Neufeld 
memorandum, but has not addressed the above passage or shown why it does not apply to this case. 
cannot nullify or supersede USCIS' own policy guidance with a sworn statement 
declaring that 
responsibility for all of 
is the successor-in-interest to with authority to assume 
then-pending immigration filings. 
For the above reasons, we do not recognize as the successor-in-interest to 
C. Portability 
Section 204G) of the Act reads as follows: 
Job flexibility for long delayed applicants for adjustment of status to permanent 
residence- A petition under subsection (a)(l )(D) [later redesignated (a)(l )(F)] for an 
individual whose application for adjustment of status pursuant to section 245 has been 
tiled 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. 
asserts that the dissolution of the petitioning company and the sale of its assets to 
are not disqualifying factors, because the final sale occurred 186 days after the Petitioner tiled 
the petition and the Beneficiary, on the same day, filed a Form I-485 adjustment application. 
maintains that the sale and dissolution are moot because of the portability provisions of 
section 204G) of the Act. 
The Director, in the denial notice, noted that "job offers in Form I-140 petitions are prospective," with 
eligibility resting on a petitioner's bona fide intention to employ a beneficiary upon approval of the 
petition, and the beneficiary's corresponding bona fide intention to work for that petitioner. The 
Director found that offer to employ the Beneficiary "more likely than not expired on 
or 
about December 21, 2013," when transferred the Beneficiary to with the 
expectation that would soon cease to exist. That transfer occurred 2 months after the 
adjustment application's filing date, well before the 180 days needed to trigger portability. The 
Director also noted that, under the terms of the 2009 Neufeld memorandum, supra,' 
must file a new petition" if it intends to employ the Beneficiary. 
quotes a passage from the Neufeld memorandum, supra at 10, that reads: "in cases 
where an alien is eligible for AC21 'portability' pursuant to INA 204(j), a successor entity need not 
file a new petition on the alien's behalf." also cites a memorandum from William 
R. Yates, Associate Director for Operations, USCIS, HQPRD 70/6.2.8-P, Interim Guidance for 
Processing Form I-140 Employment-Based Immigrant Petitions and Form 1-485 aniH-1 B Petitions 
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Matter of N- Inc. 
Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public 
Law 106-313) (May 12, 2005), http://www.uscis.gov/laws/policy-memoranda. The Yates 
memorandum indicates that beneficiaries of multinational manager or executive petitions can port to 
' new jobs, even with unrelated employers (see id. at 5), and that the change of employment can occur 
less than 180 days after filing (see id. at 6). contends that this memorandum 
"categorically negates the Adjudicating Officer requirement, there 
must continue to be a 
job offer on day 180." 
Page 3 of the same memorandum instructs adjudicators to "[r]eview the pending 1-140 petition to 
determine if the preponderance of the evidence establishes that the case is approvable or would have 
been approvable had it been adjudicated within 180 days." To resolve this somewhat ambiguous 
wording, the Department of Homeland Security (DHS) recently published a final rule relating to job 
portability under section 204(j) ofthe Act, U.S.C. § 1154(j). The rule, effective January 17, 2017, is 
not yet in effect at the time of this 'writing, but even if it were, it would not change the outcome of 
this decision. The preamble to the final rule states: "In final 8 CFR 245.25(a)(2)(ii)(A) and (B), 
DHS reaffirms that a qualifying immigrant visa petition _has to be approved before DHS examines a 
portability request under INA 204(j)." 81 Fed. Reg. 82398, 82419 (Nov. 18, 2016). The new 
regulation at 8 C.F.R. § 245.25(a)(2)(ii)(B)(2) reads, in part: "The pending petition will be approved 
if it was eligible for approval at the time of filing and until the alien's adjustment of status 
application has been pending for 180 days." As noted in the preamble, this regulation "reaffirms" 
existing policy rather than sets forth a new policy that will not apply before January 17, 2017. 
The preamble also states: 
Consistent with current policy and practice, DHS will review the pending petition to 
tletermine whether the preponderance of the evidence establishes that the petition is 
approvable or would have been approvable had it been adjudicated before the 
associated application for adjustment of status has been pending for 180 days or 
more. 
Jd. at 82420. Under the above reasoning, examining the validity of the job offer after the filing date, 
but before the passage of 180 days, is"[ c ]onsistent with current policy and practice." 
The final rule and its preamble do hot directly address the issue of the retraction or termination of a 
job offer, but the preamble does indicate that "DHS ... will deny a Form 1-140 petition if DHS 
receives the written withdrawal request, or a business termination occurs, before the associated 
application for adjustment of status has been pending for 180 days." 81 Fed. Reg. 82420 (Nov. 18, 
2016). 
In this instance, original job offer no longer existed 180 days after the date of filing. 
The Beneficiary transferred from to on months 
after the petition's filing date. At that time, arrangements for the sale and dissolution of 
were already underway. The Beneficiary's transfer occurred for the very reason that everyone 
involved knew that the company would soon cease to exist as a result of the sale. The 
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Matter of N- Inc. 
Petitionee has not established that, after the Beneficiary had a bona fide 
intention to return to or that had a bona .fide intention to re-hire her. The 
original job offer described in the petition ceased to exist long before the critical 180-day mark, even 
if continued to exist, on paper, for a few days after the 180th day. 
Furthermore, executed its purchase agreement to buy "substantially all of 
Devices & Services business " on weeks before had even filed this 
petition. on appeal , states that the Director did not consider "the possibility of 
protracted negotiations, the deal not coming to ultimate fruition, or any other delay common to 
mergers and acquisitions." In point of fact, the deal did come to fruition. 
In any employment-based immigrant petition, there is always some possibility that, due to 
unforeseen circumstances , the beneficiary will not end up working for the petitioning U.s: employer. 
USCIS does not deny petitions because a given job offer might, hypothetically , fall through. On the 
same basis , we will not find that job offer remained valid even after the impending 
sale had been announced and the Beneficiary had been transferred to All 
parties involved had an intention and an expectation that the transfer would be permanent and that 
would soon cease to exist. Those expectations proved correct. Although any number of 
factors could have prevented that result, none actually did. 
This disqualifying change of circumstances occurred well before 180 days after the petition's filing 
date of 2013. The petition had been pending for onl) months when the Beneficiary 
transferred from the Petitioner, to and less than a week later, a 
official executed the sworn statement quoted elsewhere in this decision. 
For the above reasons, we find that the original job offer effectively ceased to exist nonths after 
the petition's filing date and for this reason , section 204(j) of the Act does not apply here. We also 
find that the Petitioner no longer exists, and that policy documents quo,ted above explicitly state that 
claims of successorship-in-interest do not allow substitution of petitioners within EB 1 multinational 
manager or executive proceedings. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above reasons. In visa petttJOn 
proceedings, tHe burden of proving eligibility for the benefit sought remains with the petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361. Here , that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of N-Ine ., ID# 129916 (AAO Jan. 13, 2017) 
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