Date of Decision: June 27, 2023
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Pre-Owned Auto Sales
Beneficiary Information
Profession: Chief Executive Officer (CEO)
Field: Pre-Owned Auto Sales
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The petitioner, a business engaged in pre-owned auto sales, sought to employ the beneficiary as its Chief Executive Officer (CEO) under the EB-1C classification for multinational executives or managers. The Director of the Texas Service Center denied the petition, concluding that the petitioner did not establish that the beneficiary had been employed abroad in a managerial or executive capacity for at least one year during the relevant three-year period, nor that the petitioner had a qualifying relationship with the beneficiary’s foreign employer. Additionally, the Director determined that the petitioner had willfully misrepresented material facts concerning the beneficiary’s foreign employment, based on information obtained from outside the record.
Key Issues
The Director’s decision to deny the petition was based on two primary issues:
- The petitioner failed to demonstrate that the beneficiary had at least one year of qualifying employment abroad in a managerial or executive capacity.
- The petitioner did not establish a qualifying relationship with the beneficiary’s claimed foreign employer.
Moreover, the Director made a finding of willful misrepresentation, citing an overseas verification by the U.S. Department of State that allegedly did not confirm the beneficiary’s employment with the foreign company in Venezuela.
USCIS Findings
Upon appeal, the Administrative Appeals Office (AAO) agreed with the Director’s conclusion that the beneficiary did not meet the foreign employment requirement for the EB-1C classification. However, the AAO found that the Director did not provide the petitioner with adequate notice of the derogatory information that led to the finding of willful misrepresentation. The AAO emphasized that, per 8 C.F.R. § 103.2(b)(16)(i), the petitioner must be given an opportunity to rebut any derogatory information before a decision is made.
Supporting Evidence
The petitioner claimed that the beneficiary’s qualifying employment occurred between 2000 and 2002, before her entry into the United States in December 2002. However, the AAO noted that the beneficiary was admitted to the U.S. in a nonimmigrant status (B-2) and did not begin working for the petitioner until August 2007. The petitioner did not provide sufficient evidence to establish that the beneficiary worked abroad for at least one year within the three-year period immediately preceding her entry to the U.S. as a nonimmigrant worker.
Additional Notes
The AAO remanded the case to the Director to ensure the petitioner has an opportunity to address the derogatory information that resulted in the finding of willful misrepresentation. The AAO also indicated that even if the issue of misrepresentation is resolved, the petitioner would still need to establish the beneficiary’s qualifying employment abroad to meet the EB-1C criteria.
Conclusion
Final Determination: The Director’s decision was withdrawn, and the case was remanded for further review. The Director was instructed to issue a new Notice of Intent to Deny (NOID), providing the petitioner an opportunity to rebut the derogatory information before a final decision is made.
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