Date of Decision: November 12, 2024
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Jewelry Design, Manufacturing, and Sales
Beneficiary Information
Profession: President
Field: Jewelry Design, Manufacturing, and Sales
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Motion Outcome: Motion to Reopen and Motion to Reconsider Dismissed
Appeal Outcome: Dismissed
Case Overview
The petitioner, a jewelry designer, manufacturer, and retailer, sought to employ the beneficiary as its president under the EB-1C classification for multinational executives or managers.
The Nebraska Service Center denied the petition and subsequently dismissed the petitioner’s two motions to reopen and reconsider. The director determined that the petitioner failed to establish that the beneficiary was employed abroad for at least one year in an executive capacity and that the beneficiary’s proposed U.S. employment also met the executive capacity requirements.
On appeal, the petitioner argued that the director disregarded critical evidence. The Administrative Appeals Office conducted a de novo review and determined that the record supported the director’s decision. The appeal was dismissed.
Key Issues
The primary issues in this case were whether the petitioner demonstrated that the beneficiary was employed abroad in an executive capacity for at least one year and whether the proposed U.S. role also qualified as executive employment.
The director dismissed the motion to reopen on the grounds that it did not present new facts, which the petitioner did not contest on appeal. The motion to reconsider was dismissed because the petitioner failed to establish that the director’s decision was based on an incorrect application of law or policy.
Regarding foreign employment, the director found that the petitioner did not establish that the beneficiary was physically employed abroad for one full year within the three years preceding his U.S. entry. The petitioner claimed that the beneficiary worked for its Canadian affiliate from 2018 until his U.S. entry in October 2019 under E-2 visa status. However, USCIS records showed that the beneficiary had entered the U.S. in June 2019 and remained until October 2019, spending nearly four months in the country during the relevant period. Time spent in the United States cannot count toward the one-year foreign employment requirement.
Additionally, the petitioner did not provide sufficient evidence to establish that the beneficiary’s foreign role was primarily executive. The organizational chart and supporting documents listed only a bookkeeper and an administrative assistant as the beneficiary’s subordinates, neither of whom had managerial responsibilities. The record lacked sufficient evidence showing that the beneficiary exercised control over a subordinate managerial staff, which is a key element of executive capacity.
For the proposed U.S. employment, the director found inconsistencies in the petitioner’s organizational structure. The job duties indicated that the beneficiary would oversee orders prepared by a store manager, but no such position was listed in the company’s organizational chart at the time of filing. Additionally, the petitioner’s payroll records showed only one employee in March 2020, contradicting earlier claims that the company had three or four employees. These inconsistencies raised concerns about whether the beneficiary would be relieved from non-executive operational duties.
USCIS Findings
The Administrative Appeals Office upheld the director’s decision, citing the following findings:
- The beneficiary did not meet the one-year foreign employment requirement, as he spent nearly four months in the United States during the relevant period.
- The petitioner did not establish that the beneficiary’s foreign role met the statutory definition of executive capacity, as the record did not show that he directed the management of an organization or exercised discretionary authority over a subordinate managerial team.
- The proposed U.S. employment contained inconsistencies in staffing and organizational structure, calling into question whether the beneficiary’s duties would be primarily executive.
- The petitioner failed to resolve contradictions in its evidence regarding the number of employees at the time of filing and the presence of a store manager.
Supporting Evidence
- Organizational charts for the foreign and U.S. entities
- Beneficiary’s job description for foreign and U.S. positions
- Payroll and employment records from both entities
- Business registration and financial documentation
- USCIS travel and entry records showing the beneficiary’s presence in the United States
Additional Notes
The Administrative Appeals Office emphasized that petitioners must provide clear and verifiable documentation demonstrating that the beneficiary meets the statutory requirements for EB-1C classification. The decision reaffirmed that:
- The one-year foreign employment requirement must be met through full-time employment outside the United States.
- Executive capacity requires the beneficiary to primarily direct an organization or a major function, not simply hold an executive title.
- Organizational inconsistencies and lack of sufficient staffing to relieve the beneficiary from non-qualifying duties can undermine an EB-1C petition.
Conclusion
Final Determination: Appeal dismissed.
Reasoning: The petitioner failed to demonstrate that the beneficiary met the one-year foreign employment requirement, that his foreign employment was in an executive capacity, and that his proposed U.S. employment was primarily executive.