dismissed EB-1C Case: Retail

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
Date: AUG 2 82001Office: VERMONT SERVICE CENTER
EAC 03021 51641
PUBLICCOPY
identifyingdata dele"Ledto
reventclearly unwarr~nted
invasionof personalpnvacy
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:
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 .
. ~~r-Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the employment-based visa petition. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or
executive pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ I 153(b)(I)(C). The petitioner is a corporation organized under the laws of the Commonwealth of
Massachusetts that is operating as a convenience store and a money remittance agency. According to counsel,
prior to the denial of the instant petition, the petitioning entity was sold and the beneficiary, with his wife,
began operating a new business in the State of Connecticut. Under the present petition, the petitioner sought
to employ the beneficiary as its president.)
On August 7, 2006, the director issued a notice of intent to deny, noting that the petitioner had not
demonstrated the beneficiary's eligibility for classification as a multinational manager or executive. In
response, counsel contended that Citizenship and Immigration Services (CIS) imposed a higher evidentiary
standard of proof on the petitioner. Counsel also stated that pursuant to AC21 2, the beneficiary "qualifies to
port to new employment as an employee and/or as a self-employed individual."
In a decision dated October 4, 2006, the director denied the petition concluding that the petitioner had not
demonstrated that the beneficiary had been or would be employed by either the foreign or United States
entities in a primarily managerial or executive capacity.
On appeal, counsel maintains the beneficiary's eligibility for the requested immigrant visa classification,
stating that the petitioner had provided a list of job duties sufficient to establish the beneficiary's former and
proposed employment in a primarily managerial or executive capacity. Counsel challenges the director's
review of the petition, again claiming that CIS failed to apply the "preponderance of the evidence" standard.
Counsel takes issue with CIS' failure to address AC21 and the beneficiary's eligibility to transfer to new
employment while the 1-140 petition was pending.
Section 203(b) of the Act states, in pertinent part:
(I) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who
are aliens described in any of the following subparagraphs (A) through (C):
1 On December 26, 2001, the petitioner filed its first 1-140 immigrant petition seeking employment of the
beneficiary as its president. Citizenship and Immigration Services denied the petition on July 30, 2002.
Despite certification under the penalty of perjury, the petitioner indicated in Part Four of the most recently
filed Form 1-140 that the beneficiary had not previously had an immigrant visa petition filed on his behalf.
2 In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act (AC21), Pub. L.
No. 106-313, 114 Stat. 1251 (Oct. 172000). Section 106(c) of AC21 amended section 204 of the Act. The
"portability provision" at section 2040) 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 of a similar occupational classification as the job for which the petition was filed." CIS has not issued
regulations governing this provision.
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* * *
(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 or 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(bXl)(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, which 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.
The record does not contain evidence that the beneficiary qualifies for this visa classification. Based on the
limited record of proceeding, the petitioner had not established that the beneficiary's former or proposed
employment with the foreign or petitioning entities was in a primarily managerial or executive capacity. The
initial evidence provided by the petitioner in its September 20, 2002 le.tter broadly stated the job duties
associated with the beneficiary's proposed employment as president of the petitioning entity and only briefly
identified the beneficiary's position of commercial manager in the foreign entity without mentioning any
~elated managerial or executive responsibilities. Reciting the beneficiary's vague job responsibilities or
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the
beneficiary's daily job duties. The petitioner has failed to answer a critical question in this case: What does
the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the true nature of the
employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d.
Cir. 1990).
Additionally, counsel failed to address the beneficiary's former and proposed employment in the petitioning
entity following the director's request in his August 7, 2006 notice of intent to deny. Rather, counsel focused
only the beneficiary's purportedly eligibility under AC21 to port to new employment with the new
Connecticut-based company. Failure to submit requested evidence that precludes a material line of inquiry
shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). Accordingly, the petitioner failed to offer
a sufficient description that the beneficiary's employment in either the foreign or petitioning entity was
comprised of primarily managerial or executive job duties.
Moreover, the sale of the petitioning entity in 2004 severed any existing qualifying relationship between the
petitioner and the beneficiary's foreign employer. In order to establish eligibility for classification as a
multinational manager or executive for immigrant visa purposes, the petitioner must establish that it maintains
a qualifying relationship with the beneficiary's foreign employer; the foreign corporation or other legal entity
;...
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that employed the beneficiary must continue to exist and have a qualifying relationship with the petitioner at
the time the immigrant petition is filed. 8 C.F.R. § 204.5(j)(3)(i)(C). A multinational manager or executive is
one 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." Section 203(b)(1)(C) of the Act,
8 U.S.c. § 1153(bXl)(C).
Furthermore, counsel's claim that CIS imposed a higher standard of proof on the petitioner is not persuasive.
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of
each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence,
Matter of E-M- also stated that "[t]ruth is to be determined not by the quantity of evidence alone but by its
quality."!d. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the
director must examine each piece of evidence for relevance, probative value, and credibility, both individually
and within the context of the totality of the evidence, to determine whether the fact to be proven is probably
true.
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible
evidence that leads the director to believe that the claim is "probably true" or "more likely than not," the
applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 V.S. 421 (1987)
(defining "more likely than not" as a greater than 50 percent probability of something occurring). If the
director can articulate a material doubt, it is appropriate for the director to either request additional evidence
or, if that doubt leads the director to believe that the claim is probably not true, deny the application or
petition.
Here, the submitted evidence is not probative and credible. As noted previously, the record of proceeding
contains limited documentation on the job duties performed by the beneficiary in the foreign or petitioning
entities, thus restricting the analysis of whether the beneficiary occupied a primarily managerial or executive
position in either organization. The director's decision will be affirmed.
Furthermore, counsel contends that based on section I06(c) of AC2 I, the underlying immigrant visa petition
should remain valid to allow the beneficiary to port to new employment as the application for adjustment of
status was pending for more than 180 days. Of note, the beneficiary's new job and the portability
considerations of AC2 I are separate issues that must be addressed in the adjudication' of the beneficiary's 1­
485 application, not in the 1-140 decision. No appeal lies from the denial of an application for adjustment of
status under section 245 of the Act, 8 C.F.R. § 245.2(aX5)(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 204(j) of the Act, 8 V.S.C.
§ 1154(j) (emphasis added). In this matter, the record does not establish the beneficiary's initial eligibility for
this visa classification.
Section 204(b) of the Act, 8 U.S.c. § I I54(b), governs CIS' authority to approve an immigrant visa petition
and grant immigrant status:
After an investigation of the facts in each case, and after consultation with the Secretary of
Labor with respect to petitions to accord a status under section 1153(b)(2) or 1153(b)(3) of
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Page 5
this title, the Attorney General [now Secretary of Homeland Security] shall, ifhe determines
that the facts stated in the petition are true and that the alien in behalf of whom the petition is
made is ... eligible for preference under subsection (a) or (b) of section 1153 of this title,
approve the petition and forward one copy thereof to the Department of State. The Secretary
of State shall then authorize the consular officer concerned to grant the preference status.
Accordingly, pursuant to the statutory framework for the granting of immigrant status, any United States
employer desiring and intending to employ an alien "entitled" to immigrant classification under the Act "may
file" a petition for classification. Section 204(a)(1)(F) of the Act. However, section 204(b) of the Act
mandates that CIS approve that petition only after investigating the facts in each case, determining that the
facts stated in the petition are true and that the alien is eligible for the requested classification, and consulting
with the Secretary of Labor when required. Section 204(b) of the Act. Congress specifically granted CIS the
sole authority to approve an immigrant visa petition; an alien may not adjust status or be granted immigrant
status by the Department of State until CIS "approves" the petition.
Therefore, to be considered "valid" in harmony with the thrust of the related provisions and with the statute as
a whole, the petition must have been filed for an alien that is "entitled" to the requested classification and that
petition must have been "approved" by a CIS officer pursuant to his or her authority under the Act. See
generally, § 204 of the Act, 8 U.S.c. § 1154. A petition is not made "valid" merely through the act of filing
the petition with CIS or through the passage of 180 days. And if the approval of a petition is ultimately
revoked, the revocation serves as the CIS notice that the petition was not valid. To interpret this provision in
any other manner would subvert the statutory scheme of the U.S. immigration laws.3
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 I06(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
3 The problematic issues presented by this case are primarily the result of immigration procedures that have
arisen since the enactment of section 106(c) of AC21. CIS implemented the "concurrent filing" process on
July 31, 2002 whereby an employer may file an employment-based immigrant visa petition and an application
for adjustment of status for the alien beneficiary at the same time. See 8 C.F.R. § 245.2(a)(2)(B) (2004); see
also 67 Fed. Reg. 49561 (July 31,2002). CIS implemented the concurrent filing process as a convenience for
aliens and their U.S. employers; CIS in no way suggested that an unadjudicated 1-140 could be the basis for 1­
485 approval under the portability provisions of section 106(c). Prior to this date, only immediate relatives
and family-based preference cases could concurrently file a visa petition and an adjustment application.
Accordingly, at the time that Congress enacted AC21, no alien could assert that a denied or unadjudicated
immigrant visa petition "shall remain valid" through the passage of 180 days, since the application for
adjustment could not be filed until after the petition was approved by CIS. It is presumed that Congress is
aware of INS regulations at the time it passes a law. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
184-85(1988).
I J
Page 6
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 as
the beneficiary was not shown to have been employed by the foreign entity as a manager or executive or to
occupy a primarily managerial or executive position in the United States entity. Section 106(c) of AC21 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 AC21.
The AAO notes for the record that even under counsel's interpretation of § I06(c) of AC21, the original
immigrant visa petition would not remain valid with respect to the beneficiary's new employment. Section
I06(c) of AC21 states, in relevant part, that in the case of a filed application for adjustment of status under
section 245 of the Act that has remained unadjudicated for 180 days or more, the underlying petition under
section 204(a)(1)(F) of the Act "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 wasfiled. " (emphasis added).
When determining whether similarities exist between the beneficiary's employment in the petitioning entity
and his present employment, CIS will review the descriptions offered for each position, and consider whether
the job duties associated with each position are "the same or [ 1simi1ar." Statutory interpretation begins with
the language of the statute itself. Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552
(1990). Where the language of a statute is clear on its face, there is no need in inquire into Congressional
intent. INSv. Phinpathya, 464 U.S. 183 (1984).
Here, the original position offered to the beneficiary as president of the petitioning entity was said to comprise
such responsibilities as: directing the commercial and day-to-day operations of the company; preparing and
maintaining the annual budget, expenditures, and financial documentation; making personnel decisions;
developing diversification and marketing plans; supervising staff members; setting and maintaining
objectives; and acting as a liaison between stockholders, directors, and managers. In contrast, the job duties
related to the beneficiary's new employment include: managing the organization; preparing and negotiating
purchase contracts; determining inventory; ordering supplies; making bank deposits; performing bookkeeping
functions; ensuring the company's adherence to state and federal regulations; interacting with customers; and
resolving service issues. Especially relevant are the beneficiary's additional tasks of initiating money
remittances to overseas locations and making travel arrangement for clients. The AAO notes that these tasks
involve the performance of the services offered by the new company, which is operating as a travel and
money remittance agency. Also, the beneficiary is noted as being the sole employee of his present employer.
A review of the job duties associated with the beneficiary's current position restricts a finding that he would
be employed in the same or similar occupational classification as his former employment in the petitioning
entity. While the beneficiary was assigned the title of president of each organization, the related job duties
differ significantly, particularly with respect to his performance of the travel and money remittance services
offered by his present United States employer. In his current employment, and as the sole employee, the
beneficiary is personally performing significantly more non-managerial and non-executive tasks that are
essential to the operation of the organization. Accordingly, based on the representations made for the
...."..
1
beneficiary's former and present employment in the two United States companies, the beneficiary's new job
would not be deemed to be in the same or similar occupational classification as the job for which the
immigrant visa petition was filed.
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. Here, that burden has not been met.
ORDER: The appeal is dismissed.