Date of Decision: July 27, 2018
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Business Development
Petitioner Information
Profession: Business Development Director
Field: Enterprise Software Development and Marketing
Nationality: [Nationality not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The petitioner, a company engaged in the development and marketing of enterprise software, sought to permanently employ the beneficiary as its Business Development Director under the EB-1 classification for multinational executives or managers. The petition was initially denied by the Nebraska Service Center, with the Director determining that the petitioner failed to establish that the beneficiary was employed abroad, and would be employed in the United States, in a managerial or executive capacity.
Key Issues
The Director’s decision centered on two main issues:
Qualifying Employment Abroad: The Director concluded that the beneficiary had not been employed in a qualifying managerial or executive capacity for at least one year abroad prior to the petition’s filing.
Executive Capacity in the U.S.: The Director questioned whether the beneficiary’s duties in the U.S. would primarily involve day-to-day sales and marketing tasks rather than higher-level executive functions.
USCIS Findings
Upon appeal, the petitioner argued that the Director overlooked relevant evidence and misapplied the law. The Administrative Appeals Office (AAO) reviewed the case de novo and agreed with the petitioner’s assertions. The AAO found that:
The petitioner had demonstrated that the beneficiary’s role as a Business Development Director involved primarily higher-level business planning and development functions consistent with the statutory definition of executive capacity.
However, the record did not sufficiently establish that the beneficiary had completed at least one year of qualifying employment abroad in an executive capacity. Specifically, the AAO noted that the period of time the beneficiary spent in the United States did not count towards the one-year employment requirement.
Supporting Evidence
The petitioner provided the following evidence to support its claims:
A letter from the foreign affiliate’s CFO confirming the beneficiary’s employment abroad.
Payroll records indicating the beneficiary’s compensation during the relevant period.
An employment agreement detailing the beneficiary’s role and responsibilities.
Despite this evidence, the AAO determined that the petitioner needed to provide additional documentation to demonstrate that the beneficiary had met the one-year employment abroad requirement.
Additional Notes
The AAO emphasized that time spent by the beneficiary in the United States does not count towards the one-year requirement for qualifying employment abroad. The AAO remanded the case to the Director for further review, allowing the petitioner to submit additional evidence.
Conclusion
Final Determination: The Director’s initial decision was withdrawn, and the case was remanded for further review and the issuance of a new decision based on additional evidence that may be submitted by the petitioner.
