Date of Decision: October 2, 2018
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1 (Multinational Managers or Executives)
Field of Expertise: Executive Management
Beneficiary Information
Profession: Chief Executive Officer (CEO)
Field: Executive Management
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The Petitioner, a computer software services business, sought to employ the Beneficiary as its Chief Executive Officer (CEO) under the EB-1 classification for multinational executives or managers. This classification allows a U.S. employer to transfer a qualified foreign employee to the United States to work in an executive or managerial capacity.
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not establish that the Beneficiary would be employed in an executive capacity in the United States. Additionally, the Director questioned the Petitioner’s ability to pay the Beneficiary’s proffered wage. While the Petitioner submitted additional evidence on appeal that satisfied the wage issue, the appeal was ultimately dismissed because the Petitioner failed to overcome the remaining grounds for denial related to the executive capacity of the Beneficiary’s role.
Key Issues
The primary issues in this case included:
U.S. Employment in an Executive Capacity: The Director determined that the Petitioner did not provide sufficient evidence that the Beneficiary’s duties in the U.S. would meet the statutory definition of executive capacity. The provided job descriptions were too general and lacked the detail necessary to demonstrate that the Beneficiary would be primarily engaged in executive duties.
Organizational Structure and Staffing: The Petitioner’s organizational structure raised concerns about whether the Beneficiary would be adequately supported by subordinate staff to perform primarily executive functions, or whether he would be involved in operational tasks that do not qualify as executive duties.
USCIS Findings
The Administrative Appeals Office (AAO) made several key findings:
The Petitioner’s job descriptions for the Beneficiary were found to be insufficiently detailed, with many of the duties described being too vague or generalized to establish that the Beneficiary would be performing executive tasks. The AAO emphasized that merely paraphrasing the statutory definition of “executive capacity” is not enough to meet the burden of proof.
The evidence suggested that the Beneficiary would be primarily engaged in providing services to business partners under joint venture agreements, rather than performing executive duties for the Petitioner itself. This undermined the claim that the Beneficiary’s role was primarily executive in nature.
The Petitioner failed to provide consistent and clear evidence of its staffing levels and the scope of the Beneficiary’s responsibilities. The AAO noted that the Petitioner did not demonstrate that it had a sufficient number of employees to relieve the Beneficiary from day-to-day operational tasks.
Supporting Evidence
Key evidence considered in this decision included:
Job Descriptions: The descriptions provided were found to lack the specificity required to establish that the Beneficiary’s duties would be primarily executive.
Organizational Charts: The charts and supporting documents were inconsistent, with the Petitioner unable to clearly demonstrate how the Beneficiary’s role fit within the organizational structure.
Contractual Agreements: The agreements provided indicated that the Beneficiary’s role might involve more operational duties related to the company’s joint ventures than executive duties for the Petitioner itself.
Additional Notes
The AAO highlighted the importance of providing detailed, consistent, and clear evidence when petitioning for an EB-1 classification. In this case, the Petitioner’s failure to demonstrate that the Beneficiary’s duties in the U.S. would be primarily executive in nature was a key factor in the dismissal of the appeal. The AAO also stressed that a senior title alone does not automatically qualify a position as executive; the actual duties performed are crucial in determining eligibility.
Conclusion
Final Determination: The appeal was dismissed. The Petitioner did not sufficiently establish that the Beneficiary would be employed in an executive capacity in the United States, leading to the denial of the petition.
