Date of Decision: February 5, 2025
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Advertising and Marketing Consulting
Beneficiary Information
Profession: General Manager
Field: Advertising and Marketing Consulting
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Motion Outcome: Motion to Reopen Dismissed
Case Overview
The petitioner, an advertising and marketing consulting firm, filed a Form I-140 petition seeking to employ the beneficiary as a general manager under the EB-1C immigrant classification for multinational executives or managers.
The Texas Service Center denied the petition, citing failure to establish (1) a qualifying relationship with the beneficiary’s foreign employer, (2) that the U.S. position met the definition of executive capacity, (3) that the beneficiary had qualifying foreign employment, and (4) that the petitioner had the ability to pay the proffered wage. On appeal, the Administrative Appeals Office (AAO) dismissed the case solely on the first ground. The petitioner then filed a motion to reopen. While the AAO accepted that the petitioner had now demonstrated a qualifying relationship, the motion was still dismissed because the remaining issues—particularly the absence of a qualifying U.S. executive role—were not resolved.
Key Issues
The first issue was whether the petitioner had a qualifying relationship with the foreign employer. Initially, discrepancies in the 2022 tax return raised doubts. However, an amended return and supporting documents led the AAO to conclude that, more likely than not, the petitioner had demonstrated a qualifying ownership relationship with the foreign entity. This resolved the issue previously determinative on appeal.
The second issue, however, was fatal: whether the U.S. position met the statutory definition of executive capacity. The petitioner failed to establish that the beneficiary would “direct the management of the organization or a major component or function,” as required under INA § 101(a)(44)(B). The petitioner claimed the beneficiary would oversee directors and field staff, but failed to provide credible evidence regarding the duties or managerial level of these subordinates.
The third issue was the petitioner’s failure to resolve inconsistencies in the organizational structure and staffing records. The organizational chart listed 10 employees, but Form I-140 indicated only five. Moreover, pay records showed limited hours and wages inconsistent with full-time executive or managerial roles. Several employees were referred to as “Human Resources Executive,” a title absent from the organizational chart, raising serious credibility concerns.
The fourth issue involved discrepancies in employment records. The same bank account number appeared across multiple employees’ pay stubs, and one receipt showed a check date nearly a year before the period it was meant to cover. These irregularities, combined with inconsistent job titles, undermined the reliability of the petitioner’s evidence.
The fifth issue was the petitioner’s failure to provide job descriptions for the beneficiary’s subordinates or establish that they occupied managerial or executive roles. Without such evidence, the AAO could not find that the beneficiary would exercise the level of authority required to qualify as an executive.
USCIS Findings
The Administrative Appeals Office dismissed the motion to reopen based on the following findings:
- Although the petitioner successfully demonstrated a qualifying relationship with the foreign entity, this did not overcome the other grounds for denial.
- The petitioner failed to establish that the beneficiary would direct the management of the organization or a major function, as required for executive capacity.
- The record lacked credible job descriptions, staffing records, or payroll documentation to support the existence of subordinate managerial staff.
- The petitioner’s documentation contained inconsistencies, conflicting job titles, and unverifiable pay records, severely undermining its evidentiary credibility.
- The petitioner did not meet the burden of proof under Matter of Ho, 19 I\&N Dec. 582 (BIA 1988), which requires resolution of material inconsistencies in the record.
Supporting Evidence
- Amended 2022 income tax return demonstrating sole membership
- Organizational charts and job offer letters (inconsistent with payroll and Form I-140)
- Payroll records showing limited hours and low salaries
- Letters and statements claiming managerial structure
- RFE responses lacking subordinate job descriptions
Additional Notes
The AAO emphasized that while ownership relationships can sometimes be clarified through amended tax filings and supporting documentation, petitions must satisfy all eligibility criteria. In this case, the petitioner failed to meet the core requirement of demonstrating that the U.S. role qualified as executive. Additionally, inconsistencies and credibility issues regarding staffing structure, subordinate authority, and financial records significantly weakened the case.
Conclusion
Final Determination: Motion to reopen dismissed
Reasoning: Although the petitioner resolved the issue of qualifying ownership, it failed to demonstrate that the beneficiary would serve in an executive capacity in the United States. The absence of credible subordinate structure, conflicting employment records, and insufficient evidence regarding job duties led to dismissal of the motion.
