Date of Decision: June 21, 2024
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives)
Field of Expertise: Export of Used Cars and Spare Auto Parts
Beneficiary Information
Profession: President/Chief Executive Officer (CEO)
Field: Export of Used Cars and Spare Auto Parts
Nationality: Not Specified
Summary of Decision
Initial Decision: Approved, then revoked
Appeal Outcome: Revocation Withdrawn, Case Remanded
Case Overview
The petitioner, an exporter of used cars and spare auto parts, sought to employ the beneficiary as its President/CEO under the EB-1C classification for multinational executives.
The Texas Service Center initially approved the petition but later revoked the approval. The Director concluded that the petition was erroneously approved because the beneficiary’s foreign employer had ceased operations before the petition’s filing and that the petitioner had willfully misrepresented its inclusion in a multinational organization.
On appeal, the petitioner denied the allegations of misrepresentation, arguing that the beneficiary’s foreign employer continued to conduct business until after the petition’s approval, at which point it merged with an affiliate of the petitioner. The petitioner further contended that the Director prematurely revoked the petition’s approval without allowing sufficient time for a response.
Upon de novo review, the Administrative Appeals Office (AAO) determined that the petitioner should have been granted more time to respond under the COVID-19 flexibilities policy that was in effect at the time. Given that the petitioner did not receive the full allotted time to submit evidence, the AAO withdrew the Director’s decision and remanded the case for further consideration.
Key Issues
The primary issue in this appeal was whether the revocation of the approved petition was justified. The Director found that the petitioner misrepresented its multinational status and that the foreign affiliate ceased operations before the petition’s filing. However, the petitioner asserted that the foreign entity was operational at the time of filing and later merged with an affiliate. The AAO determined that the petitioner was not given the full response period required under USCIS’ COVID-19 flexibilities policy and that the case should be reconsidered with the petitioner’s full response.
USCIS Findings
The AAO concluded that the Director did not provide the petitioner with the appropriate response period before revoking the approval. USCIS had extended response deadlines due to the COVID-19 pandemic, granting an additional 60 days to respond to Notices of Intent to Revoke (NOIRs) issued between March 1, 2020, and January 1, 2021. The Director revoked the petition’s approval before the petitioner’s extended deadline had passed. Consequently, the AAO withdrew the Director’s decision and remanded the case for further review.
Supporting Evidence
- Documentation demonstrating the foreign entity’s operational status at the time of filing.
- Evidence of the merger between the foreign employer and an affiliate.
- USCIS policy regarding extended response deadlines due to COVID-19.
- Amicus curiae brief regarding the foreign entity’s business activities.
Additional Notes
The AAO emphasized the importance of providing petitioners with a full and fair opportunity to respond to NOIRs before revoking petition approvals. It directed the Texas Service Center to issue a new NOIR and allow the petitioner an appropriate amount of time to submit additional evidence before issuing a final decision.
Conclusion
Final Determination: The revocation of the petition’s approval was withdrawn, and the case was remanded.
Reasoning: The petitioner was not provided with the full allotted time to respond under USCIS’ COVID-19 flexibilities policy. The case will be reconsidered after the petitioner is given an opportunity to submit additional evidence.
