Date of Decision: January 5, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB1 Extraordinary Ability
Petitioner Information
Profession: Operations Manager
Field: Mobile Retail and Investments
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
- Criterion 1: N/A
- Criterion 2: N/A
- Criterion 3: N/A
- Criterion 4: N/A
- Criterion 5: N/A
- Criterion 6: N/A
- Criterion 7: N/A
- Criterion 8: N/A
Criteria Not Met:
- Criterion 1: Qualifying Relationship – The petitioner failed to demonstrate a qualifying relationship between the petitioner and the beneficiary’s foreign employer.
- Criterion 2: Business Duration – The petitioner did not establish that it had been doing business for at least one year prior to filing the petition.
- Criterion 3: Multinational Entity – The petitioner did not prove it is a multinational entity doing business in the U.S. and at least one other country.
- Criterion 4: Managerial Capacity – The petitioner did not show that the beneficiary’s proposed employment would be in a managerial capacity.
- Criterion 5: Qualifying Employment Abroad – The petitioner did not demonstrate that the beneficiary had qualifying employment abroad in a managerial or executive capacity.
Key Points from the Decision
Awards and Prizes Won: N/A
Published Materials About the Petitioner: N/A
Original Contributions of Major Significance: N/A
Participation as a Judge: N/A
Membership in Associations: N/A
Authorship of Scholarly Articles: N/A
Leading or Critical Role Performed: N/A
Artistic Exhibitions or Showcases: N/A
Evidence of High Salary or Remuneration: N/A
Commercial Successes in the Performing Arts: N/A
Supporting Documentation
- Tax Returns: The petitioner submitted tax returns that conflicted with the ownership scheme, listing different owners than initially claimed.
- Legal Arguments: The director did not adequately review or address the legal arguments presented in the petitioner’s brief.
Conclusion
Final Determination: The director’s decision is withdrawn and the matter is remanded for a new decision.
Reasoning: The director did not adequately explain the deficiencies in the evidence, nor did they provide the petitioner with a meaningful opportunity to challenge the adverse findings. The director incorrectly indicated that the petitioner must submit new evidence to meet the requirements of a motion to reconsider and failed to address the legal arguments properly.
Next Steps: The petitioner should address the noted evidentiary deficiencies, particularly regarding the qualifying relationship and ownership discrepancies, and resubmit the petition with clarified and consistent documentation.
