Date of Decision: August 2, 2023
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Wholesale Diamond Business
Beneficiary Information
Profession: General Manager
Field: Wholesale Diamond Business
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a wholesale diamond business, sought to employ the beneficiary as its General Manager under the EB-1C classification for multinational executives or managers. 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, did not demonstrate the ability to pay the proffered wage, and failed to prove a qualifying relationship with the beneficiary’s last foreign employer. After the petitioner filed a motion to reopen and reconsider, the Director issued a new decision on the same grounds. The petitioner appealed, but the Administrative Appeals Office (AAO) dismissed the appeal.
Key Issues
The Director’s denial and the AAO’s subsequent dismissal were based on several critical issues:
- Managerial or Executive Capacity: The petitioner failed to establish that the beneficiary would be employed in the United States in a managerial or executive capacity. The job duties provided by the petitioner were contingent on the existence of subordinate managers and other staff, which the petitioner had not yet hired at the time of filing.
- Ability to Pay: The petitioner did not provide adequate evidence to demonstrate its ability to pay the proffered wage.
- Qualifying Relationship: The petitioner did not establish a qualifying relationship with the beneficiary’s last foreign employer, as required for the EB-1C classification.
USCIS Findings
Upon review, the AAO upheld the Director’s decision, noting that the petitioner’s evidence, including an updated organizational chart and new job duty breakdowns, did not address the deficiencies identified in the prior decision. The AAO found that the petitioner did not meet the requirements of a motion to reopen, as the new evidence did not relate to the time of filing. Similarly, the motion to reconsider was dismissed because the petitioner did not demonstrate that the prior decision was based on an incorrect application of law or policy.
Supporting Evidence
The petitioner submitted updated organizational charts, Form W-2 Wage and Tax Statements, and new business documents reflecting staffing and finances in 2022. However, the AAO found that these documents did not sufficiently address the issues raised in the denial, particularly regarding the beneficiary’s role at the time of filing.
Additional Notes
The AAO emphasized that the petitioner did not meet the burden of proof required for the EB-1C classification. The petitioner’s reliance on new evidence that did not pertain to the time of filing, and inconsistencies in job descriptions, further weakened the case.
Conclusion
Final Determination: The motions to reopen and reconsider were dismissed. The petitioner did not provide sufficient evidence to establish the beneficiary’s qualifying managerial or executive role or resolve the issues related to the qualifying relationship and ability to pay.
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