remanded EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 19002910 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 24, 2022 
Form 1-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner, a software development company, seeks to permanently employ the Beneficiary as its 
practice manager - data solutions, 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 )(1 )(C). 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that its 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(b)(l)(C) 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. 
§ 204.5(j)(3)(i)(A). For a beneficiary who is "already in the United States working for the same employer 
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 nonimmigrant." 
The regulations draw this distinction because, as we stated in an adopted decision: 
In promulgating the implementing regulations, the former 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 work 
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 of S-P-, Inc., Adopted Decision 2018-01, 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 timeline: 
• May 2015: The Petitioner's foreign subsidiary hires the Beneficiary as a "senior data analyst and 
manager." 
• November 2016: The Beneficiary enters the United States as a B-1 nonimmigrant visitor for 
business. 
• May 2017: While the Beneficiary is still in the United States, the Petitioner files a nonimmigrant 
petition on the Beneficiary's behalf, seeking to change his nonimmigrant status from B-1 to L-lA. 
• June 2017: The Beneficiary begins working for the Petitioner in the United States upon approval 
of the L-lA nonimmigrant petition. 
• August 2020: The Petitioner files an immigrant petition on the Beneficiary's behalf. 
In denying the petition, the Director stated: 
[T]he beneficiary was not approved for an L-1 nonimmigrant visa until June 20 2017, 
almost seven (7) months after the beneficiary's arrival to the United States. Thus, it cannot 
be concluded that the beneficiary entered the United States for the purpose of "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." Accordingly, the beneficiary does not 
fit the criterion described in 8 C.F.R. § 204.5(j)(3)(i)(B) and must have his period of 
employment abroad analyzed under the criterion described at 8 C.F.R. 204.5(j)(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. As the instant petition was filed on August 
06, 2020, and it is well established that the beneficiary was present in the United States 
since prior to August 06, 2017, it cannot be concluded that the beneficiary was employed 
abroad during the relevant three-year time period, regardless of whether or not the 
petitioner is able to provide evidence of the beneficiary's qualifying employment abroad. 
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 
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employed overseas, in the three years preceding entry as a nonimmigrant, 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 
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(1)(l)(ii)(A)). A nonimmigrant in 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 B-1 status in November 
2016, and the Petitioner filed an L-1 petition on the Beneficiary's behalf in May 2017. Following the 
reasoning of the USCIS policy memorandum, the relevant time frame to consider employment abroad 
would be from May 2014 to May 2017. 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. 
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 32.3 of the Adjudicator's Field Manual (AFM) 3 (Nov. 15, 2018), https://www.uscis.gov/legal-resources/policy­
memoranda. 
2 Id. 
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