Date of Decision: May 30, 2018
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Freight Forwarding
Beneficiary Information
Profession: General Director
Field: Freight Forwarding
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a freight forwarding company, filed a Form I-140 petition to permanently employ the beneficiary as its General Director under the EB-1 category 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 a managerial or executive capacity.
Key Issues
The Texas Service Center denied the petition on four key grounds:
The petitioner failed to establish its ability to pay the beneficiary’s proffered wage.
The petitioner did not demonstrate that the beneficiary was employed abroad in a managerial or executive capacity.
The petitioner failed to show that the beneficiary would be employed in the U.S. in a managerial or executive capacity.
The petitioner did not provide sufficient evidence of a qualifying relationship between the U.S. employer and the beneficiary’s foreign employer.
USCIS Findings
The AAO upheld the decision of the Texas Service Center, focusing on several critical issues:
Ability to Pay: The petitioner did not have the financial capacity to pay the beneficiary’s wage at the time of filing the petition, which is a requirement under 8 C.F.R. § 204.5(g)(2).
Qualifying Relationship: The petitioner provided inconsistent evidence regarding the ownership and control of the U.S. and foreign entities, which led to the conclusion that a qualifying relationship was not established.
Executive Capacity: The petitioner failed to provide sufficient details about the beneficiary’s duties both abroad and in the U.S., leaving doubts about whether the beneficiary was, or would be, employed in an executive capacity as defined by section 101(a)(44) of the Act.
Supporting Evidence
The petitioner submitted various documents, including IRS tax returns, payroll records, and organizational charts. However, these documents revealed inconsistencies, particularly regarding the ownership structure of the companies and the actual duties performed by the beneficiary. The petitioner’s failure to resolve these discrepancies or provide detailed job descriptions further weakened their case.
Additional Notes
The AAO noted that the petitioner’s inability to address the discrepancies in the evidence provided—such as conflicting ownership claims and insufficient documentation of the beneficiary’s executive role—significantly impacted the decision. For future petitions, the AAO advised that the petitioner must submit clear and consistent evidence to establish eligibility.
Conclusion
Final Determination: The AAO dismissed the appeal, affirming the denial of the petition. The petitioner failed to demonstrate the ability to pay the beneficiary’s wage, establish a qualifying relationship with the foreign employer, or prove that the beneficiary was, or would be, employed in an executive capacity.
