dismissed EB-1C Case: Used Clothing Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-U-C- INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 15.2018 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner. a used clothing exporter. seeks to permanently employ the Beneficiary as its general 
manager of operations under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(I )(C). 
8 U .S.C. § 1153(b )(I )(C). This classification allows a U.S. employer to pctmancntly transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition. concluding that the record did not 
establish. as required. that the Petitioner shares a qualifying relationship with a foreign business 
entity that employed the Beneficiary abroad. 
On appeal. the Petitioner submits a brieC emphasizing that at the time it filed this petition. the 
Beneficiary had a previously approved immigrant petition and a Form 1-485. Application to Register 
Permanent Residence or Adjust Status. which had been pending for more than 180 days. The 
Petitioner asserts that the Director should have adjudicated the petition as a request f()f a 
determination on whether the Petitioner's job offer constitutes .. same or similar .. employment as that 
offered in the previously approved petition. and whether the new employment is authorized under 
the job portability provisions at section 204(j) of the Act. 8 U.S.C. § 1154(j). The Petitioner 
maintains that, under the circumstances. it does not need to establish that it meets all eligibility 
requirements under section 203(b)( I )(C) of the Act. including the qualifying relationship 
requirement. 
Upon de no\'0 review. we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who. in the three years preceding the tiling of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity. and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)( I )(C) of the Act. 
The Form I-140. Immigrant Petition for Alien Worker. must include a statement from an authorized 
otlicial of the petitioning United States employer which demonstrates that the beneficiary has been 
Maller ofA-U-( ·-Inc. 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States tor the same 
employer or a subsidiary or atliliate of the foreign employer. and that the prospective U.S. employer has 
been doing business tor at least one year. ,)'ee 8 C'.f.R. § 204.5(j)(3). 
II. ANALYSIS 
A. Qualifying Relationship 
The Director denied the petition based on a finding that the Petitioner did not establish that it has a 
qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations. a petitioner must shm\ 
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 
t;enerally section 203(b )(I )(C) of the Act; 8 C .F.R. § 204.5(j)(3 )(i)(C ). 
However. throughout this proceeding, the Petitioner has acknowledged that it does not share a 
qualifying relationship with the Beneficiary's last employer abroad or with any foreign entity. Instead 
the Petitioner stated that it tiled this petition because the Beneficiary intended to seek authorization to 
work tor the Petitioner under the ·job portability" provision of section 204(j) of the Act. 
Section 204(j) of the Act provides that: 
A petition under subsection (a)( I )(D) tor an individual whose application for adjustment of 
status pursuant to section 245 has been tiled 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 tiled. 
The record shows that the Beneficiary of this petition is also the Beneficiary of a previously-tiled 
Form 1-140 petition from an unrelated employer (T-R-. Inc.). On .January 26. 2011. T-R-. Inc. tiled 
its petition, and the Beneficiary concurrently tiled his Form 1-485, Application to Register 
Permanent Residence or Adjust Status. On August 27. 2012. atler the previous petition and Form 1-
485 had been pending for more than 180 days, the Petitioner tiled the petition that is novv on appeal. 
On appeal, the Petitioner asserts that because of the uncertainty of the agency guidance contained in 
a 2005 U.S. Citizenship and Immigration Services (USCIS) memorandum. it tiled this I-140 petition 
solely as a mechanism for seeking a determination of the Beneficiary's eligibility for job portability 
2 
Matter of A-U-C-Ine. 
under section 2040) of the Act.
1 
See USCIS Policy Memorandum HQPRD 70/6.2.8-P. lnlerim 
Guidance fhr Processing Form 1-f.IO Employmeni-Based lnunigrant Pelilions and Form 1--1?\5 and 
H-1 B Petitions Affected hy the American Competitiveness in the Twenly-Firsl ( 'entw)' Acl of 200 
(AC21) (Puhlic Law I 06-313) (May 12, 2005), https://www.uscis.gov/laws/policy-memoranda. The 
Petitioner acknowledges that this petition "may not have been necessary." 
The 2005 memorandum did not suggest that the tiling of a new immigrant petition was required for a 
determination under section 204(j) of the Act. Rather. the memorandum explained that a 
determination on portability is made within the context of adjudication of a Reneticimf s adjustment 
application. 2 which is not appealable. !d. at 3 (directing ofticcrs when to '·adjudicate the adjustment 
of status application to determine if the new position is the same or similar occupational 
classification for 1-140 portability purposes"} 3 There is no agency guidance that allows for the 
approval of an immigrant petition where. as here. the statutory requirements t<.x the requested 
immigrant classification have not been met. Consequently, the Director properly limited his 
decision to a determination on the merits of the petition. and our review is similarly limited. For the 
reasons explained above. the Petitioner has not established that it shares a qualifying relationship 
with any foreign entity. including the company in Pakistan that employed the Beneficiary during the 
three years preceding his entry into the United States. The Director correctly denied the petition on 
this basis. and the Petitioner has not overcome this determination on appeal. 
B. Foreign Employment in a Managerial Capacity 
If the Beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate. then the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) requires the Petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
that. in the three years preceding entry as a nonimmigrant. the Beneficiary was employed by the 
entity abroad for at least one year in a managerial or executive capacity. 
The Petitioner does not share a qualifying relationship with a foreign entity and therefore cannot 
establish that the Beneficiary was employed as a manager or executive for a qualifying foreign entity 
prior to his entry to the United States. For this additional reason. the petition may not be approved. 
III. CONCLUSION 
The appeal is dismissed as the Petitioner did not establish that it shares a qualifying relationship with 
the Beneficiary's foreign employer and did not provide required evidence to demonstrate that the 
1 
As of January 17. 2017, USC IS requires a Benetlciary to submit a Form 1-485 Supplement J. Contlnnation of Bona 
Fide Job Offer or Request for Job Portability Under INA Section 204(i), in order to seek job pm1ability under section 
204(j) of the Act. 
2 We note that the Bcnetlciary subsequently filed his request for portability to employment with the Petitioner on a Form 
1-485 Supplement J, and the agency adjudicated that request on October 20, 2017. 
' As noted. portability determinations under section 204(j) of the Act are now made based on a Form 1-485 Supplement 
J, and such determinations are not appealable. 
Ma/ler of A-U-C- Inc. 
Beneficiary was employed by a related entity abroad for at least one year in a managerial or 
executive capacity in the three years preceding his entry to the United States as a nonimmigrant. 
ORDER: The appeal is dismissed. 
Cite as Matter ofA-U-C- Inc .. ID# 962305 (AAO Feb. 15. 2018) 
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