dismissed EB-1C Case: Product Marketing And Trade

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
@ Us. Citizenship 
and Immigration 
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FILE. Office: CALIFORNIA SERVlCE CENTER Date: JUN 3 1 2M5 
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. 9 11 53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
~bbert P. Wiemann, Director 
dministrative Appeals Office 
DISCUSSION: The Director, California Service Center, initially approved the employment-based visa 
petition. Upon subsequent review of the record, the director issued a notice of intent to revoke and 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 avers it is a partnership established in the State of California in 1994. It claims to market and 
trade the foreign entity partner's products. The petitioner seeks to employ the beneficiary as its executive 
general manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1 1 53(b)(l)(C), as a multinational executive or manager. 
On August 5, 2003, the director issued a notice of intent to revoke approval of the petition. The director 
determined that the petitioner had not established: (1) that the beneficiary had been employed with a 
qualifying organization in one of the three years prior to filing the petition in a managerial or executive 
capacity; (2) that the beneficiary would be employed in a managerial or executive capacity for the United 
States entity; (3) a qualifying relationship with the beneficiary's foreign employer; or, (4) its ability to pay the 
beneficiary the proffered wage. The director noted that good and sufficient cause existed to revoke the 
petition and afforded the petitioner 30 days to offer evidence in support of the petition and in opposition to the 
proposed revocation. 
On September 1, 2004, the director issued his revocation decision, observing that the documentation 
submitted in rebuttal to Citizenship and Immigration Services (CIS) notice of intent to revoke did not 
overcome the grounds for revocation. The director also noted that the beneficiary had informed CIS that he 
intended to work for a new employer pursuant to AC21.' The director stated that the revocation of this 
petition, absent a finding of fraud, did not affect the disposition of the beneficiary's Form 1-485, Application 
to Register Permanent Residence or Adjust Status. 
On appeal, counsel cites Firstland Int'E, Inc. v. Ashcroft, 377 F.3d 127 (2d Cir. 2004), issued by the United 
States Court of Appeals for the Second Circuit on August 2, 2004. Counsel asserts that CIS does not have the 
authority to revoke a previously approved immigrant visa petition when the alien is already inside the United 
States. Counsel does not dispute the director's determination that the beneficiary is not eligible for this visa 
classification on appeal. 
Section 203(b) of the Act states in pertinent part: 
1 In 2000, Congress passed American Competitiveness in the Twenty-First Century Act (AC21), Pub. L. No. 
106-3 13, 1 14 Stat. 125 1 (Oct. 17, 2000). Section 106(c) of AC2 1 amended section 204 of the Act. The 
"portability provision" at section 204(i) 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." CIS has not issued regulations 
governing this provision. 
(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. 
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. 
9 204.5(i)(5). 
Counsel's only assertion on appeal is in reference to the recent opinion, Firstland Int'I, Inc. v. Ashcroft, 377 
F.3d at 127 (2d Cir. 2004), issued by the United States Court of Appeals for the Second Circuit. The AAO 
acknowledges that in that opinion, the court interpreted the third and fourth sentence of section 205 of the 
Act, 8 U.S.C. $ 1155 (2003), to render the revocation of an approved immigrant petition ineffective where the 
beneficiary of the petition did not receive notice of the revocation before beginning his journey to the United 
States. Firstland, 377 F.3d at 130. Counsel asserts that the reasoning of this opinion must be applied to the 
present matter and accordingly, CIS may not revoke the approval because the beneficiary did not receive 
notice of the revocation before departing for the United States, since he was already in the United States when 
the director issued the revocation.' 
Counsel's assertion illustrates the illogical effects of the Second Circuit's reasoning: In the present matter, 
the beneficiary entered the United States as a nonimmigrant J-1 Exchange Visitor on July 9, 1990, more than 
seven years prior to filing the Form I-140, Immigrant Petition for Alien Worker and more than 14 years prior 
to the revocation of the petition's approval. Accordingly, it was physically impossible for CIS to have 
notified the beneficiary of the revocation before he departed for the United States. In effect, counsel's 
interpretation of Firstland would have created a situation where any alien would have an irrevocable 
immigrant visa petition if the alien simply waited to file the petition after he or she arrived in the United 
States. 
According to the record of proceeding, the petitioner is located in the State of California; thus, this matter did 
not arise in the Second Circuit and Firstland was never a binding precedent. Even as a merely persuasive 
precedent, moreover, Firstland is no longer good law. 
On December 17, 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, - Stat. - (2004). Specifically relating to this matter, section 5304(c) 
of Public Law 108-458 amends section 205 of the Act by striking "Attorney General" and inserting "Secretary 
of Homeland Security" and by striking the final two sentences. Section 205 of the Act now reads: 
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 1154 of this title. Such revocation shall be effective as 
of the date of approval of any such petition. 
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, the amended statute specifically 
applies to the present matter and counsel's Firstland argument no longer has merit. 
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). 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
immigration Appeals has stated: 
In Mutter 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 i988)(citing Mutter of Estinze, 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. fj 245.1(a). If the beneficiary of an approved visa 
petition is no longer eligible for the classification sought or if the petition was approved in error, the director 
may seek to revoke his approval of the petition pursuant to section 205 of the Act, 8 U.S.C. 5 1155, for "good 
and sufficient cause." 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 ofHawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
Page 5 
In this matter, the director raised four separate issues in the notice of intent to revoke, based on the eligibility 
requirements set by the applicable statute and regulations. See generally, section 203(b)(l)(C) of the Act; 
8 C.F.R. tj 204.56). The director informed the petitioner that the record of proceeding: (1) did not contain any 
substantive evidence that the beneficiary had been employed in a managerial or executive capacity for the 
foreign entity for one year prior to the beneficiary's entry into the United States as a nonimmigrant; (2) did not 
contain a substantive description of the beneficiary's duties for the United States entity and showed that the 
beneficiary was the petitioner's sole employee; and, (3) did not demonstrate that a qualifying relationship 
exists with the overseas company, The director also determined that the record did not demonstrate the 
petitioner's ability to pay the proffered wage, contrary to the requirements of 8 C.F.R. $ 204.5(g)(2). 
The record does not contain evidence that the beneficiary qualifies for this visa classification. Based on the 
record of proceeding, the director's initial approval of this petition was contrary to the statute and plainly in error. 
Here, the petitioner failed to offer substantive evidence in explanation or rebuttal to the four issues raised in the 
director's properly issued notice of intention to revoke. The director's decision will be affirmed. 
Of note, the beneficiary's new job and the portability considerations of AC2 1 are separate issues that must be 
addressed in the adjudication of the beneficiary's 1-485 application, not in the 1-1 40 revocation decision. No 
appeal lies from the denial of an application for adjustment of status under section 245 of the Act, 8 C.F.R. 
g 245.2(a)(5)(ii). 
However, the AAO observes that for the portability provisions to apply, the underlying petition must be 
"valid" to begin with if it is to "remain valid with respect to a new job." Section 204Cj) of the Act, 8 U.S.C. 
5 1 154Cj) (emphasis added). Considering the statute as a whole, it would severely undermine the immigration 
laws of the United States to find that a petition is "valid" when that petition was never approved or, even if it 
was approved, if it was filed on behalf of an alien that was never "entitled" to the requested visa classification. 
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. It would also be 
absurd to suppose that Congress enacted a statute that would encourage large numbers of ineligible aliens to 
file immigrant visa petitions, if the legislation was actually meant to be an impetus for CIS to reduce its 
backlogs. To construe section 106(c) to include unadjudicated, denied, and revoked petitions would create a 
situation where ineligible aliens would gain a "valid" visa simply by filing frivolous visa petitions and 
adjustment applications, thereby increasing CIS backlogs, in the hopes that the application might remain 
unadjudicated for 180 days. 
In the present matter, the petition was filed on behalf of an alien who was not "entitled" to the classification 
and the petition's approval was ultimately revoked pursuant to the statutory authority of CIS. Section 106(c) 
of AC2 1 does not repeal or modify section 204(b), section 205, or section 245 of the Act, which all require an 
approved petition prior to CIS granting immigrant status or adjustment of status and further provide that CIS 
may revoke the approval at any time for good and sufficient cause. Accordingly, this petition cannot be 
deemed to have been "valid" for purposes of section 106(c) of AC2 1. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
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ORDER: The appeal is dismissed.