remanded EB-1C Case: Multinational Management

U.S. Department of Homeland Sorurity 
U.S. citizenship and Immigration Services 
IdentifiSrlng data deletd @ 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
prevent clearly unwmted 
invasion of persod privacy 
 U.S. Citizenship and Immigration 
PUBLIC COP 
JUL 2 1 2005 
Office: CALIFORNIA SERVICE CENTER Date: 
WAC 04 175 50673 
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. 8 1 153(b)(l)(C) 
ON 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 Mer inquiry must be made to that office. 
John F. Grissom, 
&Y 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was initially denied by the Director, California Service 
Center. The matter subsequently came before the Administrative Appeals Office (AAO) on appeal. 
On March 20,2006, the AAO dismissed the appeal. 
On January 9, 2007, the petitioner filed a lawsuit in the United States District Court, Central District 
of California. Prior to the District Court's entry of a ruling regarding the government's motion for 
summary judgment and the petitioner's opposition to said motion and request for summary 
judgment, the petitioner entered settlement negotiations with the government. Settlement was 
reached and filed with the District Court. Pursuant to this settlement agreement, the District Court 
ordered that the action be remanded to U.S. Citizenship and Immigration Services (USCIS) to 
adjudicate the 1-140 petition and the related 1-485 application for the beneficiary. 
The matter is now before the AAO by order of the District Court. Pursuant to the District Court's 
order and the agreed upon settlement agreement with the petitioner, the director's decision to deny 
the 1-140 immi ant visa petition (WAC 04 175 50673) filed by 
 on behalf of 
d the subsequent decision by the AAO to dismiss the appeal of this decision are 
hereby withdrawn. The matter is thereby reinstated, and the 1-1 40 petition will be remanded to the 
director, Nebraska Service Center, where it will be treated as if it had never been adjudicated, with 
no final decision made. 
To fully comply with the settlement agreement, the director is ordered to do the following: 
(1) As indicated, supra, the director must adjudicate the 1-140 petition (WAC 04 175 50673) de 
novo, as if this was the first adjudication of the petition; 
(2) The beneficiary's 1-485 application (WAC-04-175-50640) must also be reopened and 
reconsidered by the director and be adjudicated de novo, as if this was the first adjudication 
of the application; 
(3) The director must issue a request for evidence (WE) providing the petitioner until 
Thursdav. October 22.2009 to submit additional evidence and a legal memoranda or brief 
in support of the 1-140 petition; 
(4) The petitioner must show eligibility at the time of the initial filing of the 1-140 Petition. As 
such, the director will adjudicate the 1-140 Petition based upon the facts as they existed at the 
time of the initial filing of the 1-140 Petition on June 1, 2004. See Matter of Katigbak, 14 
I&N Dec. 45,49 (Cornrn. 1971); 
(5) Pursuant to 8 C.F.R. 4 204.5(g)(2), the petitioner must establish its ability to pay the 
proffered wage fiom the date the petition was filed on June 1,2004 continuing up until such 
time as the beneficiary would obtain lawll permanent resident status. However, in re- 
adjudicating this 1-140 petition, the director will not consider any failure by the petitioner to 
pay the beneficiary while beneficiary was not authorized to be employed in the United States 
following the denial of the petition's 1-140 petition and until such time as the beneficiary is 
again approved for employment authorization pursuant to the settlement agreement. In other 
words, while pay statements may normally be considered as prima facie evidence of a 
petitioner's ability to pay, that evidence cannot be provided by the petitioner in this case for 
the entire period in question given that the beneficiary was without employment 
authorization from August 9, 2005. The director must therefore evaluate instead any other 
material evidence available, e.g., the petitioner's tax returns from 2004 until the present, to 
determine the petitioner's ability to pay the beneficiary's proffered wage of $58,500 per year; 
(6) Immediately upon the reopening and reconsideration of the 1-485 application, the director 
shall reopen and re-adjudicate the beneficiary's application for employment authorization 
(LIN-09-150-5 1546). The director shall also deem the beneficiary to be lawfully present and 
authorized to work as long as (1) he timely applies for renewal of his employment 
authorization, (2) the AAO has not dismissed the appeal of a new USCIS denial of the 
petitioner's I- 140 petition, or (3) the beneficiary has not independently become ineligible for 
Adjustment of Status, for example as a result of a criminal conviction or withdrawal of the I- 
140 petition; and 
(7) If the director again denies the 1-140 petition, the director must accept any properly filed 
appeal of such a denial. 
Furthermore, pursuant to the settlement agreement, USCIS hereby and retroactively reinstates the 
beneficiary into the lawful status that he possessed prior to the denial of the petitioner's immigrant 
visa petition. Pursuant to the Immigration and Nationality Act 8 212(a)(9)(B)(ii), 8 U.S.C. 6 
1 182(a)(9)(B)(ii), the beneficiary will therefore not be deemed to have been unlawhlly present in 
the United States from the date that the petitioner's visa petition was initially denied by the USCIS 
Service Center Director on or about August 9, 2005. In the event that the director again denies the 
petitioner's immigrant visa petition and the petitioner timely appeals that denial to the AAO, USCIS 
hereby recognizes that the beneficiary's lawful status will not be terminated unless and until the 
AAO affirms the denial, unless, prior to the date of such affirmation of a denial, the beneficiary 
departs the United States or is otherwise in compliance with the immigration laws of the United 
States as a result of the filing of a separate and bona fide immigrant or nonimmigrant petition. 
ORDER: 
 The previous decisions of the AAO and the director regarding the petitioner's 1-140 
petition are withdrawn. The 1-140 petition is reinstated. The 1-140 petition and 1-485 
application are remanded to the California Service Center for adjudication de novo 
consistent with the settlement agreement filed with the United States District Court, 
Central District of California.