remanded EB-1C Case: Cruise Line Industry

U.S. Department of Homeland Security 
20 Mass. Avc.. N.W.. Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
FILE: m Office: CALIFORNIA SERVICE CENTER Date: 
WAC 02 173 501 83 
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. $ 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center, approved the instant employment-based petition on 
May 29,2003. On February 26, 2004, the director issued a Government Motion to ReopenlNotice of lntent to 
Deny. On April 9, 2004, the director issued a decision denying the petition and certified his decision to the 
Administrative Appeals Office (AAO) for review. The petition will be remanded to the California Service 
Center. 
The petitioner is a corporation incorporated under the laws of Bermuda in May 1999. Its United States 
headquarters are located in the State of California. It operates a number of cruise ships. The petitioner seeks 
to permanently employ the beneficiary as its Production Shows Coordinator. Accordingly, the petitioner 
endeavors to classify the beneficiary as an immigrant as a multinational executive or manager pursuant to 
section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(C). 
Section 203(b) of the Act states in pertinent part: 
(1) 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 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 and 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(b)(l)(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 that 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. See 8 C.F.R. 
204.5(i)(5). 
The procedural history of this matter is complex and requires a brief recitation of past actions on the part of 
the petitioner and Citizenship and Immigration Services (CIS) to understand the director's certification of the 
matter to the AAO: 
Page 3 
In October 1996, the beneficiary was approved for admittance into the United States as a 
nonimmigrant under an L-1B specialized knowledge intracompany transferee classification. 
In March 2001 the beneficiary's extension as a specialized knowledge employee expired. 
In June 2001, the beneficiary was approved for admittance into the United States as a 
nonimmigrant under an L- 1 A managerial or executive intracompany transferee classification. 
The beneficiary's classification as a managerial or executive intracompany transferee expired 
in March 2004. 
On or about April 30, 2002, the petitioner filed a Form 1-140, Immigrant Petition for Alien 
Worker, (WAC 02 1 73 50 1 83, the petition subject to this certification) seeking an immigrant 
visa for the beneficiary. On August 20, 2002, the director requested further evidence on 
several issues, including the issue of the beneficiary's foreign employment prior to entering 
the United States as a nonimmigrant. The petitioner responded on or about November 11, 
2002. The director denied the petition on April 21,2003. 
On May 22, 2003 the petitioner filed a Form I-290B, Notice of Appeal. The petitioner 
submitted a brief requesting that the director reopen and reconsider his decision. On 
February 26, 2004, the director dismissed the request to reopen and reconsider his prior 
decision, stating that: (U.S. Citizenship and Immigration Services [CIS]) records indicate that 
the petition was approved on May 29, 2003." The director detertnined that the petitioner's 
motion to reopen or reconsider was moot. 
In addition to dismissing the petitioner's motion to reopen or reconsider, the director issued a 
"Government Motion to Reopen/Notice of Intent lo Deny," also on February 26, 2004. On 
March 26, 2004 the petitioner responded to the director's notice of intent to deny. On April 9, 
2004, the director issued his decision denying the petition and certified the matter to the 
AAO. The director's denial was based on the petitioner's failure to establish that the 
beneficiary had been employed for one year prior to entering the United States as a 
nonimmigrant in a managerial or executive capacity, a requirement for this visa classification. 
See 8 C.F.R. fj 204.5(j)(3)(i)(B). 
Counsel for the petitioner submits a brief for the AAO's consideration on certification 
In this matter, the director improperly issued a motion to reopen pursuant to the regulation at 8 C.F.R. 9 
103.5(a), rather than issuing a notice of intent to revoke pursuant to 8 C.F.R. fj 205.2(b).' 
Generally speaking, a CIS motion to reopen with an intent to deny is reserved for applications, such as 
Form 1-539, Application to ExtendIChange Nonimmigrant Status; Form 1-90, Application to Replace 
Permanent Resident Card; or Form 1-765, Application for Employment Authorization. Although a service 
motion to reopen with a notice of intent ro deny follows similar procedural actions to a notice of intent to 
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Following approval of an immigrant visa petition, the director must revoke approval of 'the petition in 
accordance with the statute and regulations. Specifically, section 205 of the Act, 8 U.S.C. tj 1155 (2005) 
states: 
The Secretary of Homeland Security 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 1 154 of 
this title. Such revocation shall be effective as of the date of approval of any such petition. 
The regulation at 8 C.F.R. fj 205.2 provides that a CIS officer may revoke approval of an immigrant petition 
following notice to the petitioner of the intent to revoke and after providing the petitioner with an 
"opportunity to offer evidence in support of the petition . . . and in opposition to the grounds alleged for 
revocation of the approval." Pursuant to Matter of Estime, 19 I&N Dec. 450 (BIA 1987), the director's notice 
of intent to revoke must include a specific statement of the facts and supporting evidence underlying the 
proposed action. Similarly, the petitioner must be advised of derogatory evidence of which he is unaware, 
and must be provided with an opportunity to rebut the evidence and submit supporting documentation. Id. at 
451. Further, where a notice of intent to revoke "is based on an unsupported statement or an unstated 
presumption, or where the petitioner is unaware and has not been advised of derogatory evidence, revocation 
of the visa petition cannot be sustained, even if the petitioner did not respond to the notice of intention to 
revoke." Id. at 452. 
With regard to a director's decision to revoke, the regulation at 8 C.F.R. 3 205.2(c) further indicates: 
If, upon reconsideration, the approval previously granted is revoked, the director shall 
provide the petitioner or the self-petitioner with a written notification of the decision that 
explains the specific reasons for the revocation. 
In the instant matter, as the director did not issue a notice of intent to revoke, the decision of the director will 
be withdrawn and the matter will be remanded to the California Service Center for additional action. 
The matter is remanded to provide counsel the opportunity to submit a new legal argument, as well. Counsel 
should note that her reliance on the following two memoranda is misplaced and not on point: Memorandum 
0- ~ssistant Commissioner for Adjudications, INS. C021 4~-P, (January 13, 1989) 
m; and ssociate Director for Operations USCTS HQOPRD 
error," as discussed in thnd the 
pecifically apply to nonimmigrant petitions. The "gross 
error" standard has been incorporated into the regulations for the revocation of a nonimmigrant L-IA petition. 
See 8 C.F.R. tj 214.2(1)(9)(iii)(5). The "material error" standard discussed in the more recent is 
administrative in nature, applies only to nonimmigrant extensions, and is not based on law or regulation. As 
revoke, the revocation of an immigrant visa petition is governed by a specific legal standard. See section 205 
of the Act. 
Page 5 
the present case involves the statutory revocation of an immigrant visa petition, neither standard applies in 
this matter. In the context of immigrant visa petition proceedings, the director should disregard any argument 
proffered by counsel that is based on these two memoranda. 
With regard to the similarity of the eligibility criteria, the AAO acknowledges that both the immigrant and 
nonimmigrant visa classifications rely on the same definitions of managerial and executive capacity. See $5 
10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. 9 1 101(a)(44). Although the statutory definitions for managerial 
and executive capacity are the same, the question of overall eligibility requires a comprehensive review of all 
of the provisions, not just the definitions of managerial and executive capacity. There are significant 
differences between the L-1A nonimmigrant visa classification, which allows an alien to enter the United 
States temporarily for no more than seven years, and a Form 1-140 immigrant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. C$ $9 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also 9 3 16 of the 
Act, 8 U.S.C. 5 1427. 
It must be noted that many Form 1-140 immigrant petitions are denied after CIS approves prior nonimmigrant 
Form 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA 
US v. US Dept. ofJustice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 
1103 (E.D.N.Y. 1989). Because CIS spends less time reviewing Form 1-129 nonimmigrant petitions than 
Fonn 1-140 immigrant petitions, some nonimmigrant Ll-A petitions are simply approved in error. Q Datu 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see rxlso 8 C.F.R. 5 214.2(1)(14)(i)(requiring no supporting 
documentation to fiie a petition to extend an L-I A petition's validity). 
Finally, each petition is a separate record of proceeding and receives an independent review. Set! 8 C.F.K. 
tj 103.8(d). In making a determination of statutory eligibility, CIS is limited to the information contained in 
the record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(iiI. Moreover, counsel should note that the AAO is not 
required to approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology Internutional, 19 I&N 
Dec. at 597. 
The director's decisiov will be withdrawn and the matter will be remanded to the director for further review 
and a decision consistent with the foregoing. Upon entry of a new decision, the director's decision shall be 
certified to the AAO for review, regardless of whether the decision is favorable or adverse to the petiticner. 
ORDER: The petition is remanded to the director for the issuance of a notice of intent to revoke and the 
entry of new decision that shall be certified to the AAO upon completion.