dismissed EB-1C Case: Unknown

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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
COPY 
File: Office: CALIFORNIA SERVICE CENTER 
WAC 98 075 56233 
WAY l 6 2006 
Date: 
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) 
IN 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 hrther inquiry must be made to that office. 
P 
drninistrative ~~p/eals Office 
DISCUSSION: The preference visa petition was initially approved by the Director, California Service 
Center. On further review of the record, the director determined that the petitioner was not eligible for the 
benefit sought. Accordingly, the director properly served the petitioner with two notices of his intention to 
revoke the approval of the preference visa petition, and his reasons therefore. The director ultimately revoked 
the approval of the petition. The matter was then certified to the Administrative Appeals Office (AAO) for 
review. The AAO will affm the decision of the director. 
After issuing two separate notices of his intent to revoke the approval of the petition, the director issued a 
revocation on November 3, 2004. The director's decision was based on the following findings: 1) the 
petitioner failed to establish that the beneficiary would be employed in a managerial or executive capacity; 2) 
the petitioner was dissolved on August 27, 2003 and is therefore no longer doing business; and 3) the 
petitioner failed to establish a qualifying relationship with the foreign entity. Based on the dissolution of the 
petitioning entity, the director automatically revoked the approval of the employment-based petition pursuant 
to 8 C.F.R. 5 205.1(a)(3)(iii)(D). 
Although the petitioner filed an appeal seeking to have the director's decision reviewed and overturned by the 
AAO, the AAO lacks jurisdiction in the case of an automatic revocation. See Matter of Zaidan, 19 I&N Dec. 
297 (BIA 1985). The precedent decision noted that 8 C.F.R. 5 205.2 allows for an appeal of a decision of the 
district director revoking approval of a visa petition on any ground other than those listed in 8 C.F.R. 8 205.1. 
Id. However, the Board of Immigration Appeals determined that there is no such provision for appellate 
review when a petition is automatically revoked pursuant to 8 C.F.R. 205.1. Id. As the approval in the 
instant matter was revoked pursuant to 8 C.F.R. 5 205.1(a)(3)(iii)(D), the petitioner cannot seek to appeal this 
decision. The appeal will be rejected under a separate decision. 
As there is no appeal available in the instant matter, the director certified the decision to the AAO, to ensure 
that the decision receives appellate review. See 8 C.F.R. 103.4(a). 
Counsel disputes the director's conclusions stating that the approved Form 1-140 remains valid pursuant to the 
provisions of section 204(j) of the ~ct.' However, 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 I- 
485 application, not in the Form 1-140 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. 245.2(a)(5)(ii). 
The AAO fkther 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 2046) of the Act, 8 U.S.C. § 11540') 
I 
 In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act (AC21), Pub. L. No. 106- 
3 13, 114 Stat. 1251 (Oct. 17,2000). Section 106(c) of AC21 amended section 204 of the Act. The "portability provision 
at section 204Cj) 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. 
(emphasis added). In the instant matter, as discussed in the director's decision, the record does not establish 
the beneficiary's initial. eligibility for this visa classification. 
Section 204(b) of the Act, 8 U.S.C. § 1154(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 
this title, the Attorney General [now Secretary of Homeland Security] 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. 
Section 205 of the Act, 8 U.S.C. 8 1155, states: "The Attorney General 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 204." 
Accordingly, pursuant to the statutory kamework 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)(l)(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, 9 204 of the Act, 8 U.S.C. § 1 154. A petition is not made "valid" merely through the act of filing 
the petition with CIS or through the passage of 180 days. Further, if the director determines that an invalid 
petition was improvidently approved, the director may revoke the approval as a matter of discretion pursuant 
to section 205 of the Act. To interpret this provision in any other manner would subvert the statutory scheme 
of the U.S. immigration laws. 
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. Although 
counsel's assertions rely heavily on the assumed intent of Congress to ameliorate the affects of CIS backlogs, 
counsel's construction of section 106(c) 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 was ultimately revoked. Section 106(c) of AC21 does not repeal or modify section 204(b) or 
section 245 of the Act, which require CIS to approve a petition prior to granting immigrant status or 
adjustment of status. Nor does section 106(c) of AC21 repeal or modify Section 205 of the Act, which allows 
the director to revoke approval, as a matter of discretion, when she finds good and sufficient cause to do so. 
The beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Matter of Ho, 19 I&N 
Dec. 582, 589 (BIA 1988) (citing Tongatapu Woodcraft ofHawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984)). By itself, the 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. Id. at 590. Accordingly, this 
revoked petition cannot be deemed to have been "valid" for purposes of section 106(c) of AC21. 
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. 3 1361. Here, that burden has not been met. 
ORDER: 
 The decision of the director is affirmed.