Date of Decision: March 11, 2025
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Freight Forwarding
Beneficiary Information
Profession: President
Field: Freight Forwarding
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Director’s decision withdrawn
Motion Outcome: Case remanded for new decision
Case Overview
The petitioner, a freight forwarding company, filed a Form I-140 petition to permanently employ the beneficiary as its President under the EB-1C classification for multinational executives or managers.
The Texas Service Center denied the petition, finding that the petitioner failed to (1) establish a qualifying relationship with the beneficiary’s foreign employer, and (2) demonstrate that the beneficiary would be employed in a U.S. role that met the statutory definition of executive capacity. Upon appeal, the Administrative Appeals Office (AAO) withdrew the director’s decision and remanded the matter for a new decision that fully addressed both elements.
Key Issues
The first issue was whether the petitioner had a qualifying relationship with the foreign employer, C-C-L-, a Colombian logistics company. The petitioner asserted that both it and C-C-L- were 100% owned and controlled by the same individual, A.F.P. The director rejected this claim, asserting that A.F.P. was a foreign individual and thus ineligible to be a shareholder of a U.S. S corporation. The AAO overturned this finding based on a valid U.S. passport and W-2 form presented on appeal, confirming A.F.P.’s U.S. citizenship and Florida residency.
The second issue involved inconsistencies in ownership records. While share certificate #1 and the 2008 ledger listed A.F.P. as the sole shareholder, a March 2009 board resolution indicated that A.F.P. and V.C.A. had each paid for 500 shares. This discrepancy was not explained or reconciled by the petitioner. The AAO emphasized that the petitioner must submit a complete and consistent ownership history to resolve this material conflict under Matter of Ho, 19 I\&N Dec. 582 (BIA 1988).
The third issue was whether the proposed U.S. role met the standard for executive capacity under INA § 101(a)(44)(B). The director denied the petition based on staffing inconsistencies—specifically, the petitioner claimed to have 15 employees, but IRS and state filings showed only 6 on payroll. The director did not assess the beneficiary’s actual job duties or organizational control.
The fourth issue clarified the company’s use of a payroll processing company. The petitioner explained that 6 employees were on direct payroll, and 9 additional staff were paid through a third-party provider, bringing the total to 15. This arrangement was supported by employee lists, W-2 forms, tax returns, and a formal payroll processing agreement indicating that all staff worked on-site under the petitioner’s supervision.
The fifth issue was the director’s failure to evaluate the beneficiary’s job responsibilities. The AAO highlighted that the denial was based solely on staffing data and did not include a substantive assessment of the executive nature of the beneficiary’s role. On remand, the director must examine whether the beneficiary primarily directs the management of the organization or a major function, establishes goals and policies, exercises discretionary authority, and receives minimal supervision.
USCIS Findings
The Administrative Appeals Office withdrew the director’s decision and remanded the matter based on the following findings:
- The petitioner submitted evidence verifying A.F.P.’s U.S. citizenship and Florida residency, rebutting the director’s claim regarding foreign ownership of an S corporation.
- Inconsistencies in ownership records must be resolved through independent documentation detailing share transactions since incorporation.
- The director failed to address the actual duties and oversight authority of the beneficiary in evaluating executive capacity.
- The petitioner sufficiently demonstrated that it had 15 workers at the time of filing, including those employed through a third-party provider, consistent with USCIS policy on evaluating staffing.
- A new decision must analyze the credibility of ownership history and whether the proposed role meets the executive standard under the statute.
Supporting Evidence
- IRS Form 1120-S and Schedule K-1 showing A.F.P. as sole shareholder
- Share certificate #1 and December 2008 share ledger
- March 2009 board meeting minutes indicating dual ownership
- A.F.P.’s U.S. passport and 2022 W-2 showing Florida address
- Employee lists, payroll service agreement, tax filings, and W-2s
- Organizational chart showing six managerial roles under the president
Additional Notes
The AAO clarified that small company size and use of contract labor do not inherently preclude a finding of executive capacity. However, petitioners must demonstrate a clear and consistent organizational structure and explain any conflicting documentation. On remand, USCIS is directed to request clarification on share ownership and conduct a full assessment of the beneficiary’s job duties and executive responsibilities.
Conclusion
Final Determination: Director’s decision withdrawn; case remanded for new decision
Reasoning: The petitioner adequately rebutted allegations of disqualifying ownership and staffing inconsistencies. However, the record contains unresolved conflicts in ownership history, and the executive nature of the beneficiary’s proposed role was not fully assessed. A new decision is required following a complete review.
