Date of Decision: December 19, 2024
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Cell Phone Retail
Beneficiary Information
Profession: Chief Operating Officer
Field: Cell Phone Retail
Nationality: Not Specified
Summary of Decision
Initial Decision: Approved, then revoked
Appeal Outcome: Dismissed
Motion Outcome: Motion to Reconsider Dismissed
Case Overview
The petitioner, a cell phone retailer, sought to employ the beneficiary as its chief operating officer under the EB-1C classification for multinational executives or managers.
The Nebraska Service Center initially approved the petition but later revoked the approval, concluding that the petitioner had not established that the beneficiary was employed abroad and would work in the United States in a qualifying managerial or executive capacity. The director also determined that the petitioner did not establish its ability to pay the beneficiary’s proffered wage.
The petitioner appealed the revocation, and the Administrative Appeals Office dismissed the appeal based on the qualifying employment issues, reserving the issue of ability to pay. The petitioner then filed a motion to reconsider, which was also dismissed.
Key Issues
The first issue was whether the beneficiary’s employment abroad qualified as managerial or executive. The director identified inconsistencies in the dates of employment abroad. The petitioner provided three different dates for the end of the beneficiary’s foreign employment—September 2014, May 2015, and June 2015. Given that the beneficiary entered the United States on September 14, 2014, only one of these dates could be correct. The conflicting information raised credibility concerns that were not adequately resolved.
The second issue was whether the petitioner sufficiently demonstrated that the beneficiary’s proposed U.S. role met the definition of executive capacity. During a site visit in July 2019, an immigration officer reported that the beneficiary was unable to describe her day-to-day duties, and that the beneficiary’s spouse was performing many of the described executive functions. The petitioner later submitted a written job description, but the Administrative Appeals Office found that it did not sufficiently address concerns regarding the site visit findings.
The third issue was discrepancies in the petitioner’s ownership structure. The petitioner claimed that the beneficiary’s spouse’s father owned the majority of shares when the petition was filed in 2016, but later sold his shares to his son. However, the petitioner did not provide a stock ledger to verify share transactions, and tax returns contained conflicting information about ownership. Some records listed the spouse’s father as majority owner, while others indicated different ownership distributions. The petitioner failed to reconcile these discrepancies with independent evidence.
The fourth issue involved the petitioner’s response to the notice of intent to revoke. The petitioner did not respond in a timely manner but later submitted documentation in October 2023 after requesting a copy of the notice. The director declined to consider the late response, and on appeal, the Administrative Appeals Office reviewed the submission but found that it did not resolve the underlying discrepancies regarding employment abroad, the U.S. role, or ownership.
USCIS Findings
The Administrative Appeals Office upheld the revocation and dismissed the motion to reconsider based on the following findings:
- The petitioner provided inconsistent dates for the beneficiary’s foreign employment, undermining its credibility.
- The petitioner did not provide sufficient evidence to establish that the beneficiary’s role in the U.S. met the definition of executive capacity, particularly given concerns raised during the site visit.
- Ownership records contained discrepancies, and the petitioner failed to provide a stock ledger or other supporting documents to resolve them.
- The petitioner’s response to the notice of intent to revoke was untimely, and the later submission did not sufficiently address the issues in the case.
Supporting Evidence
- Pay records and employment history documents for the beneficiary’s foreign employment
- Organizational chart and job descriptions for the U.S. and foreign entities
- Ownership records, including stock certificates and tax filings
- Site visit report detailing the beneficiary’s responses regarding daily job duties
- Petitioner’s response to the notice of intent to revoke
Additional Notes
The Administrative Appeals Office emphasized that petitioners must provide consistent and verifiable documentation when establishing qualifying employment and business relationships. Discrepancies in employment dates, job responsibilities, and ownership can significantly impact credibility and result in denial or revocation.
Additionally, the office reaffirmed that an executive must primarily direct an organization or an essential function, not simply hold a high-level title. A beneficiary’s inability to describe their executive responsibilities during a site visit can raise concerns about whether they genuinely function in an executive role.
Conclusion
Final Determination: Motion to reconsider dismissed.
Reasoning: The petitioner failed to resolve discrepancies regarding the beneficiary’s qualifying employment abroad, U.S. executive role, and ownership structure. The issues raised in the revocation and appeal were not adequately addressed, and the motion did not establish an incorrect application of law or policy.