Date of Decision: August 8, 2024
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Software Implementation and Consulting
Beneficiary Information
Profession: Chief Executive Officer
Field: Software Implementation and Consulting
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Director’s Decision Withdrawn, Case Remanded
Case Overview
The petitioner, a software implementation and consulting company, sought to employ the beneficiary as its chief executive officer under the EB-1C classification for multinational executives or managers.
The Texas Service Center denied the petition, concluding that the petitioner did not establish a qualifying relationship with the beneficiary’s foreign employer. The decision was based on a determination that the submitted evidence failed to demonstrate that the U.S. petitioner and the foreign entity were related as parent and subsidiary or affiliates.
On appeal, the petitioner argued that the director failed to consider all relevant documentation, including evidence demonstrating a parent-subsidiary relationship. The Administrative Appeals Office conducted a de novo review and determined that the director’s decision lacked sufficient explanation and failed to address key evidence submitted by the petitioner. As a result, the director’s decision was withdrawn, and the case was remanded for further consideration.
Key Issues
The primary issue in this appeal was whether the petitioner sufficiently demonstrated a qualifying relationship between the U.S. and foreign entities. The director’s decision focused primarily on the definition of “affiliate” and determined that the petitioner did not establish that both entities were owned and controlled by the same individuals in the same proportions. However, the director did not address the petitioner’s claim that it qualified as a subsidiary of the foreign entity.
The Administrative Appeals Office found that the director’s decision did not fully analyze the petitioner’s arguments or evaluate all relevant documentation. Additionally, the record contained inconsistencies regarding the foreign entity’s ownership, as different documents showed conflicting ownership percentages for the beneficiary and other stakeholders.
The director’s decision also failed to properly acknowledge or explain deficiencies in the petitioner’s membership structure. The petitioner initially submitted an operating agreement listing specific ownership percentages but later provided an amended tax filing that contradicted earlier ownership claims. The director did not issue a request for evidence to allow the petitioner to clarify these inconsistencies before issuing the denial.
USCIS Findings
The Administrative Appeals Office determined that the director’s decision was incomplete and insufficient for proper review. The decision failed to address all relevant aspects of the petitioner’s claim, including the possibility that the entities were related as parent and subsidiary.
The office also noted concerns about inconsistencies in the petitioner’s documentation, particularly regarding ownership distribution in the U.S. and foreign entities. The petitioner’s amended tax records did not align with earlier partnership agreements, and the membership certificates provided were inconsistent with the reported ownership percentages.
Since these issues were not adequately addressed in the initial decision, the Administrative Appeals Office withdrew the denial and remanded the case for further review. The Texas Service Center was directed to issue a request for evidence to allow the petitioner to submit additional documentation clarifying ownership and control.
Supporting Evidence
- Shareholder list for the foreign entity, dated July 30, 2019, showing ownership percentages
- Petitioner’s amended and restated operating agreement, dated February 18, 2021
- 2022 IRS Form 1120, Schedule G, listing ownership percentages for the petitioner
- Texas Franchise Tax Public Information Reports for 2021 and 2022
- Membership certificates for the petitioner, showing conflicting ownership interests
- Payroll and financial records for the U.S. entity
Additional Notes
The Administrative Appeals Office emphasized the importance of clear and consistent documentation in demonstrating a qualifying relationship between U.S. and foreign entities. The petitioner must submit verifiable evidence to establish ownership and control at the time of filing, as well as any changes in ownership that occurred afterward.
The Texas Service Center was instructed to issue a new decision that fully evaluates the petitioner’s arguments and all relevant evidence. If the director denies the petition again, the decision must provide a comprehensive explanation of the reasons for denial.
Conclusion
Final Determination: The denial was withdrawn, and the case was remanded for further review.
Reasoning: The director’s decision did not fully address the petitioner’s claims or consider all relevant evidence, requiring a remand for further adjudication.
