sustained EB-1C Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re: 22023035 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 12, 2023 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a software development and services company, seeks to permanently employ the 
Beneficiary as a senior project manager 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)(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 record did not 
establish that the Beneficiary had at least one year of employment with a qualifying entity abroad in 
the three-year period preceding his admission to the United States to work for the Petitioner in a 
nonimmigrant status. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will sustain the appeal. 
Section 203(b)(l)(C) of the Act makes an immigrant visa available to a beneficiary who "has been 
employed for at least one year" by the petitioning employer or a related entity abroad "in the three 
years preceding the time of the alien's application for classification and admission into the United 
States under this subparagraph. " We will refer to this three-year period as the "qualifying period ." 
In addressing this qualifying period of employment abroad, 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. However, the regulations at 8 C.F.R. § 204.5(j)(3)(i)(A) and (B) provide 
different reference points for purposes of calculating the relevant 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 multinational organization. 
The record demonstrates that the Beneficiary has been continuously employed within the Petitioner's 
multinational organization since December 2010, with the following timeline: 
• December 2010 through December 2014: The Beneficiary was employed by the Petitioner's 
Indian subsidiary in a managerial capacity. 
• December 2014 to September 201 7: The Petitioner employed the Beneficiary in the United States 
as an L-lA nonirnrnigrant intracompany transferee. 
• September 2017 to February 2018: The Beneficiary returned to his employment with the 
Petitioner's Indian subsidiary. 
• February 2018: The Beneficiary returned to the United States in L-lA nonimmigrant status to 
resume his employment with the Petitioner in a managerial capacity. 
• June 2020: The Petitioner filed this immigrant petition with evidence that it had continued to 
employ the Beneficiary pursuant to the approved L- lA petition. 
In denying the petition, the Director referenced 8 C.F.R. § 204.5(j)(3)(i)(B) and stated: 
[T]he beneficiary last entered the U.S. on February 12, 2018 in L-1 nonimmigrant status 
to work for the petitioner. Therefore, the beneficiary must have one year of experience 
abroad working for the same employer or a subsidiary between February 12, 2015 through 
February 12, 2018. From February 12, 2015, to September 2017, the beneficiary was 
working for the petitioner. The beneficiary only has 6 months of work experience abroad 
working for [the Indian subsidiary] from September 2017 to February 2018. 
The Director determined that, because the Beneficiary returned to India to work for the Petitioner's 
subsidiary in 2017, he must re-establish his one year of qualifying employment abroad and can no longer 
rely on his employment with the Petitioner's subsidiary between December 2010 and December 2014. 
We conclude that the Director applied an overly restrictive interpretation of 8 C.F.R. § 204.5(j)(3)(i)(B) 
based on the facts presented here. 
Statutes and regulations must be read as a whole, and interpretations should be consistent with the 
purpose of the Act. As we emphasized in Matter of S-P-, both the statute and the regulations focus on 
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the continuity of a given beneficiary's employment with the same multinational organization . 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 1-140 petition when the beneficiary is already working for a 
qualifying U.S. entity. Without such a provision, a beneficiary employed in the United States by a 
qualifying organization in a nonimmigrant status for more than two years would not be eligible for 
immigrant classification as a multinational manager or executive. 
Unlike the facts presented in Matter of S-P-, where the beneficiary had a lengthy interruption in their 
employment within the petitioner's multinational organization that made them ineligible for 
classification under 203(b)(l)(C) of the Act, the record here establishes that the Beneficiary has been 
continuously employed by foreign and U.S. entities within the same multinational organization since 
December 2010. He established his qualifying period of employment abroad between December 
2010 and December 2014. Neither the Beneficiary's period of stay in L-lA nonimmigrant 
classification nor his temporary transfer back to the Petitioner's Indian subsidiary is considered 
interruptive. As such, we can continue to reach back to the period preceding his initial entry to the 
United States in L-lA status in December 2014 in calculating whether he meets the foreign 
employment requirement. A more restrictive interpretation of 8 C.F.R. § 204.5(j)(3)(i)(B) would 
result in a determination that is not consistent with the purpose of the statute and regulations. 1 
Therefore, the Director's determination that the Beneficiary's L-1 entry in February 2018 is the 
appropriate reference point for calculating the qualifying three-year timeframe is incorrect; the 
Beneficiary's entire time-period in the United States as an L-1 nonimmigrant was spent working for the 
Petitioner. This period spent in L-lA status is not interruptive of the previously accrued period of foreign 
employment and does not disqualify him from eligibility for this immigrant classification. The record 
reflects the statutory and regulatory requirements have been satisfied with respect to the Beneficiary's 
qualifying employment abroad. Accordingly, the Director's decision is withdrawn. 
As we have withdrawn the sole grounds for denial, and the record establishes, by a preponderance of 
the evidence, that all other eligibility requirements for the requested classification have been met, we 
will sustain the appeal. 
ORDER: The appeal is sustained. 
1 This interpretation of 8 C.F.R. § 204.5U)(3)(i)(B) is supported by USCIS policy guidance . See generally, 2 USCIS Policy 
Manual L.6(G) , https://www.uscis.gov /policy-m anual (addressing the one-year foreign employment requirement 
applicable to adjudication ofL-1 nonimmigrant petitions) . Although the Director disregarded the L-1 policy as irrelevant 
to this matter , we find it instructive. Similar 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 referenced L-1 policy states that 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 results 
in an adjustment of the 3-year period , in that the running of the three-year period is tolled while a beneficiary is working 
for a qualifying U.S. entity. Id. 
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