Date of Decision: October 11, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Gemstone Trading
Beneficiary Information
Profession: President
Field: Gemstone Trading
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a gemstone trading company, sought to employ the beneficiary as its president under the EB-1C classification for multinational executives or managers. The Director of the Texas Service Center denied the petition, concluding that the petitioner failed to establish several key requirements: (1) a qualifying relationship between the U.S. petitioner and the foreign employer, (2) that the beneficiary was employed abroad in a managerial or executive capacity for at least one year in the three years preceding his entry to the United States, and (3) that the beneficiary would be employed in a qualifying managerial or executive capacity in the United States. The Director also found indications of fraud or willful misrepresentation of material facts in the petition. The petitioner appealed the decision, arguing that the Director did not properly consider its response to the Notice of Intent to Deny (NOID).
Key Issues
- Qualifying Relationship: The Director found that the petitioner did not provide sufficient evidence to establish a qualifying relationship between the U.S. entity and the beneficiary’s foreign employer. The petitioner claimed to be a wholly-owned subsidiary of a sole proprietorship located in India, which employed the beneficiary. However, discrepancies in the petitioner’s tax returns and corporate records cast doubt on this claim. Specifically, the petitioner’s tax returns for 2008 and 2009 indicated two stockholders, contradicting the claim of being a wholly-owned subsidiary.
- One Year of Employment Abroad: The Director also determined that the petitioner did not establish that the beneficiary had one year of qualifying employment abroad within the relevant three-year period. The beneficiary had spent significant time in the United States between 2005 and 2008, raising questions about whether he met the one-year employment requirement. The petitioner’s explanation and submitted evidence, including the beneficiary’s amended Form G-325A, were not sufficient to resolve these concerns.
- U.S. Employment in a Managerial or Executive Capacity: The Director questioned whether the beneficiary would be employed in a managerial or executive capacity in the United States. The petitioner provided vague and inconsistent job descriptions for the beneficiary, and the company’s small staffing levels suggested that the beneficiary would likely be involved in non-managerial duties. The petitioner’s argument that the beneficiary would rely on a subordinate manager for day-to-day operations was not supported by sufficient evidence.
- Finding of Fraud or Willful Misrepresentation: The Director concluded that the petitioner’s submission contained discrepancies and potential misrepresentations regarding the beneficiary’s employment history and the company’s ownership structure. Although the AAO withdrew the Director’s finding of fraud or willful misrepresentation, it noted that the evidence submitted raised serious concerns about the credibility of the petitioner’s claims.
USCIS Findings
Upon review, the Administrative Appeals Office (AAO) dismissed the appeal. The AAO agreed with the Director’s findings that the petitioner failed to establish a qualifying relationship, did not demonstrate that the beneficiary had one year of qualifying employment abroad, and did not prove that the beneficiary would be employed in a managerial or executive capacity in the United States. The AAO also found that the petitioner did not adequately resolve the inconsistencies in the record.
Supporting Evidence
The petitioner submitted various documents, including stock certificates, tax returns, payroll records, and job descriptions. However, the AAO determined that these documents were insufficient to establish the petitioner’s eligibility for the EB-1C classification.
Additional Notes
The AAO emphasized the importance of providing consistent and credible evidence to support the key requirements for the EB-1C classification. The discrepancies in the petitioner’s submissions and the lack of sufficient documentation were critical factors in the dismissal of the appeal.
Conclusion
Final Determination: The appeal was dismissed. The petitioner did not provide sufficient evidence to establish that the beneficiary met the requirements for the EB-1C classification, particularly regarding the qualifying relationship and managerial capacity.
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