remanded EB-1C Case: Logistics

U.S. Citizenship 
and Immigration 
Services 
In Re : 19068937 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 2, 2022 
Form 1-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner, a logistics services company, seeks to permanently employ the Beneficiary as its chief 
executive officer (CEO) under the first preference immigrant classification for multinational managers or 
executives. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b )(lXC). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the petitioning organization employed the Beneficiary abroad for at least 
one year during a three-year qualifying period before the filing of the petition. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will remand the matter to the 
Director for the entry of a new decision. 
Section 203(bX1XC) of the Act makes an immigrant visa available to a beneficiary who "has been 
employed for at least 1 year by" the petitioning employer or a related entity "in the 3 years preceding the 
time of the alien's application for classification and admission into the United States under this 
subparagraph," i.e., the filing of the immigrant petition. We will refer to this three-year period as the 
"qualifying period ." 
Because the statutory language does not distinguish between beneficiaries who are already in the United 
States when the immigrant petition is filed, and those who are still abroad, the regulations at 8 C.F.R 
§ 204 .5 (j)(3)(i)(A) and (B) address the two different situations by adjusting the timing of the qualifying 
period. If the beneficiary is outside the United States at the time of filing, then the qualifying period is 
"the three years immediately preceding the filing of the [immigrant] petition ." See 8 C.F.R 
§ 204 .5G)(3)(i)(A). Fora beneficiaiywhois "already in the United States workingforthesameemployer 
or a [related employer]," 8 C.F.R. § 204.5(j)(3)(i)(B) sets the qualifying period as "the three years 
preceding entry as a nonimrnigrant." 
The regulations draw this distinction because, as we stated in an adopted decision: 
In promulgating the implementing regulations, thefonner Immigration and Naturalization 
Service concluded that it was not the intent of Congress to disqualify "nonimmigrant 
managers or executives who have already been transferred to the United States" to w01k 
within the same corporate organization. See 56 Fed. Reg. 30,703, 30,705 (July 5, 1991). 
Thus, the regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) allows USCIS to look beyond the 
three-year period immediately preceding the filing of the I-140 petition, when the 
beneficiary is already working for a qualifying U.S. entity. 
Matter ofS-P-, Inc., AdoptedDecision2018-01, at 3 (AAO Mar. 19, 2018). In that same decision, we 
reasoned that, whether a beneficiary is now in the United States or abroad, the determinative issue is 
whether or not there has been a two-year interruption in that beneficiary 's qualifying employment within 
the larger organization. 
The present case shows the following time line: 
• June 2016 to December 2017: The Petitioner's foreign affiliate employs the Beneficiary. 
• December 2017: The Beneficiary enters the United States as an F-2 spouse of a nonimmigrant 
student. 
• June 2019: While the Beneficiary is still in the United States, the Petitioner files a nonimmigrant 
petition on the Beneficiazy'sbehalf,seekingto change his nonimmigrantstatus fromF-2 to L-lA. 
• August 2019: The Beneficiary begins working for the Petitioner in the United States upon 
approval of the L-lAnonimmigrant petition. 
• September 2020: The Petitioner files an immigrant petition on the Beneficiary's behalf. 
In denying the petition, the Director stated that, because the Beneficiary entered the United States in 
December 2017 but did not change to L-lA nonimmigrant status until September2019, the Beneficiary 
did not enter the United States for the purpose of working for the Petitioner or a related, qualifying 
employer. As a result, the Director stated that the three-year qualifying period must be calculated under 
8 C.F.R. § 204.5(i)(3)(i)(A), "which states that the relevant three-year time period is that which falls 
within the three years prior to the filing of the instant petition," i.e., from September 28, 2017 until 
September 28, 2020. The Director concluded that the Beneficiary could not have been employed abroad 
for at least a year during that period, because he has been in the United States since December 2017. 
We disagree with the Director. The full text of 8 C.F.R. § 204.5(j)(3)(i)(B)requires the Petitioner to 
demonstrate that: 
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 non immigrant, the alien was 
employed by the entity abroad for at least one year in a managerial or executive 
capacity. 
The regulation does not address the manner in which a given beneficiary first enters the United States, 
and there is no dispute that the Beneficiary was working for the Petitioner at the time the Petitioner filed 
the immigrant petition. 
In a 2018 policy memorandum, U.S. Citizenship and Immigration Services (USCIS) stated, with 
regard to L-1 beneficiaries who had initially entered the United States under a different nonimmigrant 
2 
classification, "the proper reference point for determining the one-year foreign employment 
requirement is the date the petitioner files the initial L-1 petition on the beneficiary's behalf, the 
starting point in the alien's application for admission in L-1 status." 1 Although the memorandum 
specifically addresses L-1 nonimmigrant petitions, the same reasoning applies to immigrant petitions 
for multinational managers and executives, because both classifications require calculation of at least 
one year of qualifying employment abroad during a three-year period. 
The same memorandum states: 
By regulation, time a beneficiary spent working in the United States "for" a qualifying 
organization does not count towards the one-year foreign employment requirement; 
however, this time does result in an adjustment of the three-year period (8 CFR 
214.2(l)(l)(ii)(A)). A nonimmigrantin the United States will be considered to have 
been admitted to work "for" the qualifying organization if he or she is employed by 
that organization as a principal beneficiary of an employment-based nonimmigrant 
petition or application. 2 
In this case, the Beneficiary entered the United States as a nonimmigrant in F-2 status in December 
2017, and the Petitioner filed an L-1 petition on the Beneficiary's behalf in June 2019. Following the 
reasoning of the USCIS policy memorandum, the relevant time frame to consider employment abroad 
would be from June 2016 to June 2019. During that three-year period, the Beneficiary was employed 
abroad by a qualifying foreign employer for more than the required one year. 
For the above reasons, we will withdraw the Director's decision and remand the matter for consideration 
of the petition on its merits. 
We also note that there are issues of concern that may bear further inquiry. When the Beneficiary applied 
for his F-2 nonimmigrant visa in November 2017, he described his position with the foreign company as 
"CEO ASSISTANT." This brief description, provided without elaboration on his visa application, raises 
the question of whether the Beneficiary was the CEO, as the Petitioner now asse1ts, or the assistant to an 
unnamed CEO. 
Also, the record contains what purport to be printouts from the foreign employer's website, 
_______ dated April 2019. We have not been able to confirm that this website exists, or 
that it did exist in 2019. This issue raises questions about the extent to which the claims of the petitioning 
employer, and its affiliate abroad, are amenable to verification. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a new 
decision. 
1 USCTS Policy Memorandum PM-602-0167,Satisfying the L-1 I-Year Foreign Employment Requirement; Revisions to 
Chapter 3 2.3 of the Adjudicator's Field Manual (AFM) 3 (Nov. 15, 2018), https://www.uscis.gov/legal-resources/policy­
memoranda. 
2 Id. 
3