Date of Decision: July 17, 2018
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Executive Management
Petitioner Information
Profession: President and Chief Executive Officer
Field: Kitchen Furnishings Manufacturing
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The petitioner, P-U.S., Inc., is a U.S.-based kitchen furnishings manufacturer. The company sought to permanently employ the beneficiary, who was employed as the president and chief executive officer, under the EB-1 classification for multinational managers or executives. The EB-1 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 initial petition was denied on two grounds:
The petitioner failed to establish a qualifying relationship with the beneficiary’s foreign employer.
The petitioner did not demonstrate that the beneficiary had at least one year of employment in a managerial or executive capacity with a qualifying entity abroad within three years of entering the United States to work for the petitioner.
USCIS Findings
Upon review, the Administrative Appeals Office (AAO) found that the petitioner had established a qualifying affiliate relationship with the beneficiary’s foreign employer. The AAO also determined that the beneficiary was more likely than not employed in a managerial capacity abroad. However, the petition was not approved because the petitioner failed to provide sufficient evidence of its ability to pay the beneficiary’s proffered wage as of the filing date.
Supporting Evidence
The petitioner provided the beneficiary’s 2015 IRS Form W-2, which showed a salary exceeding the proffered annual wage. However, the petitioner did not submit the required documentation, such as an annual report, federal tax return, or audited financial statement for 2016, to demonstrate the ability to pay the proffered wage.
Additional Notes
The petitioner requested job portability under section 204(j) of the Immigration and Nationality Act, claiming the beneficiary had a new employment offer from a different U.S. employer in a similar occupational classification. However, this request was not granted due to the insufficient evidence of the ability to pay at the time of filing and the absence of a Form I-485 Supplement J with supporting documentation.
Conclusion
Final Determination: The decision was withdrawn, and the case was remanded to the Nebraska Service Center for further review. The remand was specifically focused on the issue of the petitioner’s ability to pay the proffered wage as of the filing date.
