dismissed EB-1C Case: Property Management

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FILE: Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: 
NOV 2 3 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. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision ofthe 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. 
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)(1)(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.ulcis.gov 
-Page 2 
DISCUSSION: The director, Texas Service Center, initially approved the employment-based visa petition 
on December 8, 2006. Upon later review of the record the director determined that the petitioner was not 
eligible for the benefit sought and therefore issued a Notice of Intent to Revoke (NOIR). The director 
ultimately revoked approval of the petition on April 15, 2008. The petitioner subsequently filed an appeal 
before the Administrative Appeals Office (AAO) where the appeal was dismissed in a decision dated April 2, 
2009. The matter is now before the AAO on motion to reopen and reconsider. The petitioner's motion to 
reopen will be dismissed due to the petitioner's failure to meet the requirements of 8 C.F.R. § 103.5(a)(2). 
The motion to reconsider will be granted and counsel's statements will be considered in a full discussion 
below. However, the underlying decision dismissing the appeal will be affirmed. 
The petitioner is a limited liability company formed under the laws of the State of Florida. It seeks to employ the 
beneficiary as its general manager. Accordingly, it 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. 
Upon review and after providing proper notice, the director ultimately revoked the approval pursuant to section 
205 of the Act, 8 U.S.C. § 1155. The director's decision was based on two conclusions regarding the petitioner's 
eligibility: 1) the petitioner failed to establish that the beneficiary will be employed in a primarily managerial or 
executive position in the United States; and 2) the petitioner failed to establish that it had been doing business for 
at least one year prior to the filing of the petition on November 14, 2005. 
On appeal, the petitioner disputed both grounds cited in the revocation. The AAO reviewed the record in its 
entirety and affirmed the director's conclusion. With regard to the first ground, the AAO found that the 
petitioner failed to establish that the beneficiary would perform primarily managerial or executive job duties. 
Rather, the AAO found that portions of the beneficiary's job description listed broad job responsibilities that 
were ambiguous as to the true nature of the underlying tasks, while other tasks that were attributed to the 
beneficiary'S proposed position were administrative, operational, and more indicative of· a first-line 
supervisor, as no evidence had been provided to establish that the beneficiary'S subordinates were managerial, 
supervisory, or professional employees. 
With regard to the second ground for revocation, the AAO found that the petitioner failed to submit evidence 
establishing that it received payments from rent and property management. The AAO noted that merely 
providing signed property management agreements or evidence of wages paid to contractors and employees 
was insufficient to establish that the petitioner had been engaged in the regular, systematic, and continuous 
provision of a service. Accordingly, the AAO concluded that the petitioner failed to provide evidence to 
establish that it met the provisions of 8 C.F.R. § 204.5U)(3)(i)(D), which states that the petitioner must show 
that it had been doing business for at least one year prior to filing the Form 1-140. 
On motion, counsel does not address either of the two grounds that formed the basis for the decision to revoke 
the petition. Rather, counsel argues that it is improper for U.S. Citizenship and Immigration Services (USCIS) 
to revisit the issue of the petitioner's eligibility for the employment-based visa sought on behalf of the 
beneficiary when the beneficiary has already been granted permanent resident status. Counsel further asserts 
that if the beneficiary was not eligible for permanent resident status, the proper means to remedy the error is 
to commence the process for rescinding the approval of the beneficiary'S application for adjustment of status 
in accordance with section 246 of the Act, thereby requiring USCIS to meet the clear, convincing, and 
unequivocal burden of proof. Counsel's argument overlooks the possibility that revocation of a visa petition 
Page 3 
may serve as a basis for rescinding the approval of an application for adjustment of status. Thus, revocation 
of the visa petition in the present matter is not an isolated procedure that deals solely with the issue of 
eligibility for the employment-based visa classification. Rather, the revocation will be treated as a 
preliminary step to the overall rescission process based on the reasoning that if the beneficiary is found to be 
ineligible for an employment-based visa classification, the erroneous approval of such visa classification 
cannot serve as a basis for granting the beneficiary's application for permanent resident status. 
As stated in the AAO's earlier decision, with regard to the revocation on notice of an immigrant petition under 
section 205 of the Act, the Board of Immigration Appeals has stated: 
In Matter 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 1988) (citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
USCIS 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. § 245.l(a). If the beneficiary of an approved visa 
petition was ineligible or is no longer eligible for the classification sought, 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." 
By itself, a director's realization that a petition was incorrectly approved is good and sufficient cause for the 
issuance of a notice of intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. at 590. 
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 the present matter, counsel focuses on the ninth circuit court finding in the above cited case, which she 
interprets to mean that a petitioner's eligibility is no longer an issue once the beneficiary of the employment­
based visa petition adjusts his or her status to that of a permanent resident. Counsel's interpretation presumes 
that eligibility for the employment-based visa had been properly established. Such is not the case with the 
current petitioner where both the director and the AAO (in its prior decision) outlined specific reasons 
showing why the petition had been erroneously approved. Here, the AAO notes an important distinction 
between the beneficiary of an employment-based visa petition who obtains permanent resident status on the 
basis of an approved petition and the beneficiary of an employment-based visa petition who obtains 
permanent resident status on some other basis. While both beneficiaries may derive the same immigration 
benefit, the beneficiary in the latter scenario does not need an approved employment-based visa petition in 
order to obtain that benefit. Thus, in that case, eligibility for the underlying visa petition does not playa 
pivotal role. In the present matter, the record indicates that the beneficiary's permanent resident status was 
based solely on an approved Form 1-140. Therefore, establishing eligibility for the underlying employment­
based visa petition is a crucial step in the overall process of adjusting the beneficiary's status to that of a 
permanent resident. As such, while the petitioner does not have the burden of maintaining eligibility after the 
, 
Page 4 
immigrant visa is issued, the petitioner cannot claim to have a valid visa petition if it failed to establish that it 
met the eligibility requirements at the time of filing and continued to meet such requirements through the date 
the beneficiary's status was adjusted to that of a permanent resident. Contrary to counsel's assertion, the 
issue of eligibility for the employment-based immigrant petition does not become irrelevant merely because 
an adjustment of status application was erroneously approved on the basis of a petition where eligibility had 
not been established. Such a visa petition would be deemed invalid and USCIS would be justified III 
reevaluating any subsequent benefits derived from the invalid visa petition. 
In summary, USCIS has determined that the petitioner failed to establish eligibility on two grounds. The 
AAO has since affirmed the director's findings in the decision issued on April 2, 2009. Although counsel 
generally disputes the propriety of issuing any adverse findings regarding the petitioner's eligibility for the 
immigrant visa petition given the beneficiary'S adjustment of status, the actual grounds for revocation have 
not been disputed or overcome on motion. 
Accordingly, the revocation will remain undisturbed for the above stated reasons, with each considered as an 
independent and alternative basis for denial. 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 motion is dismissed.