Date of Decision: March 4, 2025
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Executives or Managers)
Field of Expertise: Airline Industry
Beneficiary Information
Profession: Software Development Manager
Field: Airline Industry
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Appeal Outcome: Director’s decision withdrawn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 provider of enterprise software solutions for the airline industry, filed a Form I-140 petition to permanently employ the beneficiary as a software development manager under the EB-1C immigrant visa category for multinational executives or managers.
The Texas Service Center denied the petition, concluding that the petitioner failed to demonstrate (1) the beneficiary’s qualifying managerial employment abroad and (2) the petitioner’s ability to pay the proffered wage. On appeal, the Administrative Appeals Office (AAO) found both determinations to be incorrect and remanded the case for a new decision, including a merits-based analysis of the beneficiary’s managerial duties abroad.
Key Issues
The first issue involved the petitioner’s ability to pay the beneficiary’s proffered wage of \$142,088 per year. The director discounted a consolidated federal tax return filed by the petitioner’s parent company, arguing it did not specifically reflect the petitioner’s financials. The AAO disagreed, noting that the return included segmented financial data for the petitioner, which showed several million dollars in net current assets despite a net loss. Moreover, the petitioner had merged with the parent company prior to filing, and the beneficiary had been paid her full salary during the relevant period. These factors demonstrated sufficient ability to pay under 8 C.F.R. § 204.5(g)(2).
The second issue was whether the beneficiary’s employment abroad qualified as managerial. The director concluded that because the petitioner (a U.S. entity) continued to pay the beneficiary while she worked at the company’s Indian affiliate, her employment could not qualify as foreign. The AAO found this reasoning flawed. The regulations require that the beneficiary be physically outside the United States and employed by the same employer or a qualifying related entity. The AAO noted that the beneficiary was stationed in India and working for the petitioner’s organizational network, thus satisfying the requirement. Her payroll status with the U.S. petitioner was not disqualifying.
The third issue was the director’s failure to assess whether the beneficiary’s duties abroad met the substantive criteria for managerial capacity under INA § 101(a)(44)(A). The AAO clarified that the regulatory focus must now shift to evaluating the beneficiary’s actual duties and organizational role during her overseas employment. This question was not addressed in the original decision.
The fourth issue was the petitioner’s submission of documentation supporting the managerial role, including an employer letter, subordinate role descriptions, performance reviews, and internal email correspondence. The director did not refute these documents but instead based the denial on the employer-of-record technicality, which the AAO overturned.
The fifth issue was the petitioner’s organizational structure and documented merger, which allowed for a holistic evaluation of financial viability and clarified the continuity of employer identity across geographic operations.
USCIS Findings
The Administrative Appeals Office withdrew the director’s decision and remanded the matter for the following reasons:
- The petitioner submitted valid financial documentation, and its net current assets met the regulatory ability-to-pay requirement.
- The director improperly dismissed consolidated financial data despite segmented reporting and a merger that unified the petitioner and its parent.
- Payroll status was not a disqualifying factor under 8 C.F.R. § 204.5(j)(3)(i); the beneficiary’s employment in India constituted qualifying foreign employment.
- The director failed to evaluate the managerial nature of the beneficiary’s duties while stationed abroad, necessitating a substantive review on remand.
- The AAO affirmed that the physical location of the employment and organizational continuity were the determinative criteria—not payroll origination.
Supporting Evidence
- Consolidated federal tax returns with subsidiary-specific breakdowns
- Employment verification letter from senior vice president in India
- Performance reviews, internal email records, and organizational charts
- Beneficiary payroll records pre- and post-petition
- Confirmation of merger with parent company retaining same EIN
Additional Notes
The AAO emphasized that petitioners may demonstrate qualifying foreign employment even when the beneficiary remains on the U.S. payroll, as long as the employee worked physically overseas for a related entity. USCIS officers must assess whether the position involves qualifying managerial duties rather than rely on technicalities surrounding payment or entity naming. Going forward, the director must determine if the duties performed by the beneficiary abroad meet the criteria of managerial capacity under the statutory four-prong test.
Conclusion
Final Determination: Director’s decision withdrawn; case remanded for new decision
Reasoning: The petitioner satisfied the ability to pay requirement and demonstrated that the beneficiary’s foreign employment was not disqualified by payroll arrangement. The case is remanded for evaluation of whether the beneficiary’s duties abroad meet the statutory definition of managerial capacity.
