Date of Decision: September 24, 2018
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Real Estate Development
Beneficiary Information
Profession: Managing Director/President
Field: Real Estate Development
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a real estate development company, sought to permanently employ the beneficiary as its Managing Director/President under the EB-1 immigrant classification for multinational executives or managers. This classification, under Section 203(b)(1)(C) of the Immigration and Nationality Act, allows a U.S. employer to transfer a qualified foreign employee to the United States to work in an executive or managerial capacity. The petition was denied by the Director of the Texas Service Center on three main grounds: the inability to establish that the beneficiary would be employed in a managerial or executive capacity in the United States, insufficient evidence that the beneficiary was employed in a managerial or executive capacity abroad, and concerns about the petitioner’s ability to pay the beneficiary’s proffered wage.
Key Issues
Managerial or Executive Capacity in the U.S.: The Director determined that the petitioner did not provide sufficient evidence to establish that the beneficiary would be employed in an executive capacity in the United States. The job descriptions provided were vague and lacked specific details about the beneficiary’s daily responsibilities, which are crucial for demonstrating that the position is primarily executive in nature.
Employment Abroad in Managerial or Executive Capacity: The Director also found that the petitioner failed to establish that the beneficiary had been employed in a managerial or executive capacity abroad prior to his entry into the United States. The evidence provided did not sufficiently demonstrate the nature of the beneficiary’s duties or the organizational structure of the foreign entity.
Ability to Pay: The petitioner did not adequately demonstrate its ability to pay the beneficiary’s proffered wage. The financial documents provided, including tax returns and net current asset statements, showed a negative net income and insufficient liquidity to cover the beneficiary’s salary.
USCIS Findings
Employment in Executive Capacity: The petitioner’s description of the beneficiary’s duties was found to be too broad and lacking in specific detail. The Director noted that the general statements about the beneficiary’s responsibilities, such as “establishing objectives and procedures” or “directing and managing all company activities,” were insufficient to demonstrate that the beneficiary’s role would be primarily executive. Additionally, the petitioner failed to provide evidence of sufficient subordinate staff to relieve the beneficiary from performing non-executive tasks.
Employment Abroad: The petitioner’s evidence regarding the beneficiary’s prior employment abroad was similarly insufficient. The organizational chart provided by the petitioner did not align with the previously submitted descriptions of the foreign entity’s structure, leading to inconsistencies that undermined the credibility of the petitioner’s claims. Without a clear and consistent portrayal of the beneficiary’s managerial role abroad, the Director could not conclude that the beneficiary had been employed in a qualifying capacity.
Ability to Pay: The petitioner’s financial records indicated a negative net income and insufficient net current assets to meet the beneficiary’s proffered wage. Although the petitioner argued that construction costs during the relevant tax year contributed to these figures, the Director determined that this explanation did not justify the inability to meet the wage requirements. Furthermore, the petitioner did not provide sufficient evidence to show that it had been paying the beneficiary the proffered wage since the priority date.
Supporting Evidence
The petitioner submitted organizational charts, job descriptions, and financial records as evidence. However, these documents were found lacking in detail and consistency. The organizational charts did not accurately reflect the staffing levels, and the job descriptions were too vague to demonstrate that the beneficiary’s duties were primarily executive. Financial records showed negative income and insufficient liquidity, failing to support the petitioner’s ability to pay the beneficiary’s wage.
Additional Notes
This case highlights the importance of providing detailed and consistent evidence when petitioning for EB-1 classification. The dismissal of the appeal serves as a reminder that broad job descriptions and unsubstantiated claims about organizational structure and financial capacity will not meet the stringent requirements set forth by USCIS. Petitioners must ensure that all documentation is thorough, accurate, and aligns with the statutory definitions of managerial or executive capacity.
Conclusion
Final Determination: The appeal was dismissed as the petitioner failed to establish that the beneficiary would be employed in an executive capacity in the United States, had been employed in a managerial or executive capacity abroad, and had the ability to pay the proffered wage. This decision underscores the necessity for detailed and consistent evidence in EB-1 petitions.
