sustained EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services· 
MATTER OF A-S- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 19,~2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a software company, seeks to permanently employ the Beneficiary as an information 
technology (IT) client services and engineering manager under the ,first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Beneficiary had 
not accrued, as required, one year of qualifying work abroad during the three years "preceding [his] 
entry [into the United States] as a nonimmigrant." 1 8 C.F.R. § 204.5(j)(3)(i)(B). 
To determine whether the Beneficiary has satisfied the one year foreign employment requirement, 
we must determine when, for the purposes of this petition, the Beneficiary entered "as a 
nonimmigrant" to work for the Petitioner. Upon de novo review, we will sustain the appeal. 
On August 11, 2014, the Petitioner filed its petition. The Petitioner indicated that the Beneficiary 
held "intermittent L-lA visa status" between February 2011 and August 2013. Although the 
Beneficiary's L-1A nonimmigrant status was valid throughout that time, his position was based at 
the Petitioner's Canadian affiliate and he actually spent the majority of his time abroad, making only 
brief, occasional visits to the United States.2 In August 2013, the Petitioner promoted the 
Beneficiary to the proffered U.S.-based position. Based on that job offer and under his existing L-
1A nonimmigrant status, the Beneficiary entered the United States on August 12, 2013, and since 
then has mostly worked in the United States as the Petitioner's employee. 
Therefore, the Petitioner considered August 12, 2013, to be the date of the Beneficiary's entry as a 
nonimmigrant, such that the three year period in which to accrue qualifying foreign employment 
would run from August 2010 to August 2013. In contrast, the Director concluded that the three year 
1 
The record substantiates the managerial nature of the Beneficiary's employment abroad from August 20 I 0 to August 
2013. 
2 The Beneficiary made 17 trips to the United States during the relevant period. The longest visit was only 12 days, and 
most lasted less than a week. In total, he spent 117 days in the United States over a period of approximately 2.5 years. 
Matter of A-S-
period ran from February 2008 until the Beneficiary's initial entry into the United States as an L-lA 
nonimmigrant on February 6, 2011. 
The statute plainly indicates that the relevant three-year period in which a beneficiary must have one 
year of managerial or executive employment abroad is "preceding the time of the alien's application 
for classification and admission into the United States under this subparagraph .... " Section 
203(b)(1)(C) of the Act. The statute, however, is silent with regard to those who have already 
entered the United States in a nonimmigrant classification. In promulgating the relevant regulations, 
the former Immigration and Naturalization Service concluded that Congress had not intended to 
disqualifY employees who had already been transferred to the United States to work within the same 
business organization. See 56 Fed. Reg. 30703, 30705 (July 5, 1991) ("The Service does not feel 
that Congress intended that nonimmigrant managers or executives who have already been transferred 
to the United States should be excluded from this classification."). 
We construe relevant statutes and regulations as a whole and consistent with the plain purpose of the 
Act. Here, we must interpret the regulatory phrase "entry as a nonimmigrant" 3 in a manner 
consistent with the text and purpose of the statute. For this reason, we disagree with the Director 
that such "entry" must necessarily refer to a beneficiary's first-ever nonimmigrant entry, because 
that might include an irrelevant entry (for example, as a tourist or student) that could have taken 
place years before that beneficiary began working for the employing organization. At the same time, 
we do not necessarily construe the relevant "entry" as the most recent entry before the immigrant 
petition filing. Otherwise, an individual who had already worked for the U.S. company for more 
than two years could effectively be disqualified by a short trip abroad, because that individual did 
not work abroad for at least one out of the preceding three years. Neither of these outcomes would 
be consistent with the purpose of the statute, to facilitate the transfer of senior talent within a 
multinational organization. 
When considering beneficiaries who work in the United States only intermittently, achieving an 
outcome consistent with the statute's purpose requires consideration of factors such as the 
beneficiary's source of remuneration, place of residence, primary worksite, and the frequency and 
duration of their entries to the United States.4 We find that, where a beneficiary was previously 
employed abroad and made only brief, occasional visits to the United States in a work-authorized 
status during the qualifying period, the beneficiary's "entry as a nonimmigrant" occurred when the 
beneficiary began working exclusively or primarily in the United States for the petitioner or a related 
U.S. employer. 
3 8 C.F.R. § 204.5(j)(3)(i)(B). 
4 
These same factors are relevant in determining whether L-1 beneficiaries who reside abroad and commute to the United 
States for part-time employment, and for those engaged in seasonal or intermittent employment, are eligible for 
exceptions to the 5- and 7-year limits on stay applicable to that nonimmigrant classification. Cf 8 C.F.R. 
§ 214.2(1)( 12)(ii) (requiring L-1 petitioners to submit evidence such as a beneficiary's arrival and departure records, 
copies of tax returns, and records of employment abroad when seeking an exception to the L-1 limitation on stay). 
2 
Matter of A-S-
Here, the Beneficiary's first relevant entry to work for the Petitioner as a nonimmigrant was on 
August 12, 2013. This date coincides with the Beneficiary's promotion to his current U.S.-based 
position. During the roughly 2.5 years between February 6, 2011, and August 12, 2013, the 
Beneficiary had an approved L-1A nonimmigrant visa to facilitate his brief intermittent visits to the 
United States, but he spent 87% of his time (801 out of 918 days) working for the Petitioner's 
affiliate outside the United States. Accordingly, the Beneficiary has satisfied the one year foreign 
employment requirement. 
ORDER: The appeal is sustained. 
Cite as Matter of A-S- Inc., ID# 96470 (AAO July 19, 2017) 
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