dismissed EB-1C Case: Retail

identipjino ~c"" ie!Cled '.lJ 
prevent ;;:,.c, -d','larranLed 
invasion of personal privacy 
PUBLIC COpy 
DATE: 
JUL 2 1 lO1' 
OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 USc. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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 1-290B, Notice of Appeal or Motion, 
with a fee of $630, Please be aware that 8 C.F,R, § 103,5(a)(I)(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.usds.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as manager of its retail operation. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(I )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(I )(C), as a 
multinational executive or manager. 
The director denied the petition, finding that the record does not establish that the beneficiary has the requisite 
employment abroad with a qualifying employer prior to his U.S. entry as a nonimmigrant. The director 
pointed out that, while the U.S. employer that previously employed the beneficiary has a qualifying 
relationship with the foreign entity that employed the beneficiary prior to his arrival to the United States, the 
current U.s. petitioner does not have the requisite qualifying relationship with that same foreign employer. 
On appeal, the petitioner disputes the director's decision, claiming that the petitioner is affiliated with a 
foreign entity. The petitioner further contends that the director's decision is unreasonable and contrary to 
congressional intent. 
The primary issue in this proceeding is whether the petitioner is a qualifying organization that is eligible to 
file a Form 1-140 on behalf of the beneficiary. 
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): 
* * * 
(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 I 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 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. 
The regulation at 8 C.F.R. § 204.S(j)(3)(i) requires that the petitioner provide the following initial evidence in 
support of the Form 1-140: 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least one 
Page 3 
year in a managerial or executive capacity by a firm or corporation, or other legal entity, 
or by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a subsidiary 
or affiliate of the firm or corporation, or other legal entity by which the alien was 
employed overseas, in the three years preceding entry as a nonimmigrant, the alien was 
employed by the entity abroad for at least one year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a subsidiary or 
affiliate of the firm or corporation or other legal entity by which the alien was employed 
overseas; and 
(D) The prospective United States employer has been doing business for at least one year. 
In the instant matter the petitioner offered two separate statements, both dated April 28, 2008, in support of 
the Form 1-140. One of the statements referred to the petitioner as a qualifying organization based on the 
petitioner's belief that a qualifying organization is any entity "that is doing business as an employer in the 
United States." Although both statements addressed the beneficiary's qualifications and the requirements for 
the proposed position, neither statement discussed the beneficiary's employment abroad or the petitioner's 
relationship with the beneficiary's foreign employer. 
Accordingly, on December 19, 2008, the director issued a notice requesting additional evidence (RFE). The 
petitioner was instructed to provide evidence establishing the ownership and control of the foreign and U.S. 
entities. When read in conjunction with the statutory provisions in section 203(b)(1 )(C) of the Act, it is clear 
that the "foreign entity" referenced in the RFE is the beneficiary's foreign employer. 
In response, the petitioner provided a statement dated January 12, 2009, which contains a list of the 
beneficiary's nine foreign employers. 
The director determined that the petitioner's response to the RFE failed to establish eligibility for the 
immigration benefit sought and therefore issued a notice of intent to deny (NOlO) dated January 6, 2009. 
That date may be an error on the part of the director, as the January 6, 2009 NOlO refers to the petitioner's 
RFE response in the past tense. The director pointed out that the petitioner failed to comply with RFE 
instructions asking for evidence establishing ownership and control of the foreign and U.S. entities. The 
director acknowledged the petitioner's submission of its tax returns, which contained information about its 
stock distribution. As no evidence was provided with regard to the ownership and control of the foreign 
entity, the director determined that the petitioner failed to establish that the individuals who share ownership 
and control of the beneficiary's U.S. employer are the same individuals who own and control the foreign 
entity. 
In response, the petitioner provided a statement dated April 10, 2009, which addressed the beneficiary's 
employment abroad. Specifically, the petitioner stated that prior to coming to the United States, the 
beneficiary was errlpl'~yj~ 
further pointed out 
where the beneficiary was nrf'V""" 
of business as the be,oetjcl:ary's 
and control either with 
the same line 
U.S. employer, the petitioner did not claim to share common ownership 
The petitioner merely asserted itself as a qualified petitioning entity 
Page 4 
"because change of employers are [sic} are allowed by the regulations." (Emphasis added in original.) The 
petitioner asserted that the American Competitiveness in the Twenty-First Century Act (AC21) allows a 
change of employers such that the new employer, i.e., the petitioner, is able to file a Form 1-140 on behalf of 
the beneficiary despite the fact that it has no qualifying relationship with the beneficiary's foreign employer. 
The petitioner contended that the AC21 provisions apply in the present matter because the proposed position 
is in the same or similar occupation as the beneficiary's position with the prior employer. 
On June 9, 2009, the director issued a decision denying the petition based on the petitioner's failure to 
establish that the beneficiary was employed abroad by a qualifying employer prior to his entry to the United 
States as a nonimmigrant. The director further determined that the provisions of AC21 do not apply in the 
present matter because the petitioner has not established that it is a qualified organization that is eligible to 
file a Form 1-140 on the beneficiary'S behalf pursuant to section 203(b )(1 )(C) of the Act. 
On appeal, the petitioner challenges the director's decision claiming that it is a qualifying organization 
because it has been doing business in the United States for more than one year. The petitioner also refers to 
"several invoices" as evidence of its "active relationship" with a foreign entity and again raises the claim that 
AC21 provisions allow for the beneficiary's change of employment. 
The AAO finds that the petitioner's assertions are contradicted by statutory and regulatory provisions and 
therefore fail to overcome the director's correct basis for denying the petition. 
Contrary to the petitioner's first assertion that doing business in the United States for at least one year renders 
the petitioner a qualifying organization, section 203(b)(I)(C) of the Act and 8 C.F.R. § 204.5G)(3)(i) both 
establish that the criteria that must be met in order to establish eligibility go beyond merely doing business in 
the United States for more than one year. While doing business in the United States for at least one year prior 
to filing the Form 1-140 is clearly among the criteria required to establish eligibility, numerous other factors 
must also be considered. 
Among the key factors that U.S. Citizenship and Immigration Services (USCIS) considers when evaluating a 
petitioner's eligibility is the beneficiary'S employment abroad and whether the petitioner has a qualifying 
relationship with the foreign entity that employed the beneficiary prior to his entry to the United States as a 
nonimmigrant. More specifically, the regulation at 8 C.F.R. § 204.5G)(3)(i)(B) states, in part, the following: 
A) If the alien is outside the United States, in the three years preceding the filing of the 
petition the alien has been employed outside the United States for at least one year in 
a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity[.] 
These provisions clearly indicate that the beneficiary'S employment with the petitioning U.S. entity must be a 
continuation of his or her employment with the entity abroad, regardless of whether the beneficiary is still 
Page 5 
working abroad or is already employed in the United States at the time of filing. The above provisions are in 
line with 8 C.F.R. § 204.5G)(3)(i)(C), which states that the petitioner must establish that it has a qualifYing 
relationship with the beneficiary's foreign employer. 
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)(l)(C) of the 
Act, 8 U.S.c. § I I 53(b)(I)(C); see also 8 C.F.R. § 204.5G)(2) (providing definitions of the terms "affiliate" 
and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5G)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Multinational means that the qualifYing entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In the present matter, the petitioner neither claims nor provides evidence to establish that it has a qualifYing 
relationship with any of the entities that employed the beneficiary abroad. A petitioner cannot establish 
eligibility unless it provides evidence of a qualifYing relationship between itself and the foreign entity where 
the beneficiary was employed abroad. 
Lastly, with regard to the petitioner'S reliance on AC21 to establish eligibility, the AAO notes that the 
beneficiary's new job and the portability considerations of AC21 are separate issues that must be addressed in 
the adjudication of the beneficiary's 1-485 application, not in the adjudication of an 1-140 petition. 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(a)(5)(ii). 
However, the AAO observes that in order 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 204G) of the Act, 
8 U.s.c. § 1154G) (emphasis added). In this matter, the record does not establish the beneficiary's initial 
eligibility for this visa classification. 
Page 6 
Section 204(b) of the Act, 8 U,S,c' § 1154(b), governs USCIS's 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 l153(b )(2) or l153(b )(3) of 
this title, the Attorney General [now Secretary of Homeland Security 1 shall, if he 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. 
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 USCIS 
approve a 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) ofthe Act. 
Congress specifically granted USCIS 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 USCIS "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 USCIS officer pursuant to his or her authority 
under the Act. See generally, § 204 of the Act, 8 U.S.C. § 1154; Matter of Al Wazzan, 25 I&N Dec. 359 
(AAO 2010). Contrary to the petitioner's assertions, a petition is not made "valid" merely through the act of 
filing the petition with USCIS or through the passage of 180 days. 
In summary, the AAO finds that the director properly found the petitioner to be ineligible for the immigration 
benefit it currently seeks, as there is no evidence that the beneficiary was employed in a qualifying capacity 
for the required duration by a foreign entity that shares common ownership and control with the petitioner 
such that the two entities can be found to have a qualifying relationship. Therefore, on the basis of this 
finding of ineligibility, the instant petition cannot be approved. 
As the AAO finds that the petitioner is not a qualifying U.S. employer that is entitled to file a Form 1-140 on 
behalf of the beneficiary, no further issues of eligibility need be addressed at this time. 
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 dism issed.