Date of Decision: September 24, 2018
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1 (Multinational Managers or Executives)
Field of Expertise: Botanical Products and Yew Tree Derivatives
Beneficiary Information
Profession: Chief Executive Officer, Deputy General Manager and Treasurer
Field: Botanical Products and Yew Tree Derivatives
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The Petitioner, a company specializing in products derived from yew trees and other botanical sources, sought to employ the Beneficiary as its Chief Executive Officer (CEO), Deputy General Manager, and Treasurer under the EB-1 classification for multinational executives or managers. This visa classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity.
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not establish that the Beneficiary would be employed in the United States in a managerial or executive capacity. Furthermore, the Petitioner failed to demonstrate that the Beneficiary had been employed abroad in a managerial or executive capacity prior to entering the United States. On appeal, the Petitioner provided additional evidence and argued that the Director’s decision conflicted with prior approvals of nonimmigrant petitions for the Beneficiary. However, the Administrative Appeals Office (AAO) reviewed the case and dismissed the appeal.
Key Issues
The primary issues in this case included:
Managerial or Executive Capacity in the U.S.: The Director determined that the Petitioner did not provide sufficient evidence to demonstrate that the Beneficiary would be employed in a managerial or executive capacity in the United States. The job descriptions provided were too vague and did not clarify the Beneficiary’s specific duties.
Managerial or Executive Capacity Abroad: The Director also found that the Petitioner failed to establish that the Beneficiary had been employed in a managerial or executive capacity abroad, as required by the EB-1 classification.
Doing Business Requirement: The Petitioner did not sufficiently demonstrate that it had been conducting regular, systematic, and continuous business operations in the United States for at least one year prior to filing the petition.
USCIS Findings
The Administrative Appeals Office (AAO) made several key findings:
Inadequate Job Descriptions: The Petitioner provided job descriptions for the Beneficiary that were vague and lacked specific details about the duties and responsibilities required to qualify as executive or managerial. The descriptions included broad statements about leadership and strategic planning but did not provide sufficient detail to demonstrate the executive nature of the role.
Insufficient Staffing and Organizational Structure: The AAO noted that the Petitioner’s organizational chart did not convincingly support the claim that the Beneficiary’s role was primarily managerial or executive. The evidence suggested that the Beneficiary may be involved in day-to-day operational tasks rather than focusing solely on high-level management.
Failure to Meet Doing Business Requirement: The Petitioner failed to demonstrate that it had been regularly conducting business in the United States for at least one year before filing the petition. The evidence provided showed that the company had not been actively engaged in business operations during the required period.
Supporting Evidence
Key evidence considered in this decision included:
Organizational Charts and Job Descriptions: The job descriptions and organizational charts provided by the Petitioner were insufficiently detailed and did not clearly establish the Beneficiary’s role as primarily managerial or executive.
Business Activity Documentation: The Petitioner provided contracts, sales agreements, and other documents, but these were not adequate to prove that the company had been consistently doing business in the United States for the required period.
Additional Notes
The AAO emphasized the importance of providing clear, detailed, and consistent evidence when petitioning for an EB-1 classification. The Petitioner’s failure to demonstrate that the Beneficiary would be employed in a managerial or executive capacity, along with the failure to meet the doing business requirement, were critical factors in the dismissal of the appeal.
Conclusion
Final Determination: The appeal was dismissed. The Petitioner did not establish that the Beneficiary would be employed in a managerial or executive capacity in the United States, nor did it demonstrate that it had been doing business for at least one year prior to filing the petition, leading to the denial of the petition.
