Date of Decision: September 13, 2018
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Business Management in Cleaning Services
Beneficiary Information
Profession: Chief Executive Officer (CEO)
Field: Cleaning Services Management
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a provider of cleaning services, sought to permanently employ the beneficiary as its Chief Executive Officer (CEO) under the EB-1 immigrant classification for multinational executives or managers. This classification, under Section 203(b)(1)(C) of the Immigration and Nationality Act, permits a U.S. employer to transfer a qualified foreign employee to the United States to work in an executive or managerial capacity. However, the petition was denied by the Director of the Texas Service Center due to the petitioner’s inability to demonstrate its ability to pay the beneficiary’s proffered wage. The petitioner’s subsequent motion to reopen and reconsider was also denied, and the appeal was dismissed.
Key Issues
The primary issue in this case was whether the petitioner could demonstrate its ability to pay the beneficiary’s proffered wage at the time the petition was filed. The Director concluded that the petitioner did not meet this requirement, as its financial documents showed negative net income and insufficient current assets to cover the beneficiary’s wage. Additionally, concerns were raised regarding whether the beneficiary would be employed in a true managerial or executive capacity in the United States, given the petitioner’s diminished staffing levels.
USCIS Findings
Ability to Pay: The petitioner failed to provide sufficient evidence that it had the financial ability to pay the beneficiary’s proffered wage of $36,802.64 per year at the time of filing. The petitioner’s 2014 and 2015 federal tax returns indicated negative net income and insufficient net current assets. The petitioner attempted to rely on the financial resources of its foreign parent entity, but USCIS regulations do not allow the use of a foreign entity’s assets to demonstrate the petitioner’s ability to pay.
Managerial or Executive Capacity: Although not the primary basis for the initial denial, information provided by the petitioner raised concerns about whether the beneficiary would be employed in a managerial or executive capacity. The petitioner indicated that several managerial positions had been terminated, and the beneficiary’s spouse, who would continue working with the organization, would be working fewer hours due to health issues. This raised questions about whether the beneficiary would need to take on additional operational duties, potentially undermining the claim that the role would be primarily managerial or executive.
Supporting Evidence
The petitioner submitted various financial documents, including tax returns, a letter from the foreign parent entity, and the beneficiary’s tax return. However, these documents did not adequately demonstrate the petitioner’s ability to pay the proffered wage. The petitioner’s reliance on the financial strength of its foreign parent company was deemed insufficient, as U.S. regulations require the petitioner itself to prove its ability to pay.
Additional Notes
This case highlights the importance of providing clear and sufficient evidence of a petitioner’s financial capability when filing for EB-1 classification. It also underscores the need to maintain a clear organizational structure that supports the beneficiary’s role as primarily managerial or executive, especially when staffing levels are reduced.
Conclusion
Final Determination: The appeal was dismissed as the petitioner failed to establish its ability to pay the beneficiary’s proffered wage and raised concerns about whether the beneficiary would be employed in a managerial or executive capacity. This decision serves as a reminder of the stringent requirements for demonstrating financial capability and the need for a well-documented managerial or executive role in EB-1 petitions.
