Date of Decision: FEB. 11, 2021
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Diamond Purchasing Business
Beneficiary Information
Profession: Chief Executive Officer
Field: Executive Management in Diamond Purchasing
Nationality: [Nationality not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Case Overview
The petitioner, a business specializing in diamond purchasing, sought to employ the beneficiary as its Chief Executive Officer under the EB-1C classification for multinational executives or managers. The petition was filed to secure permanent residency for the beneficiary, who was claimed to have served in a similar executive role overseas for at least one year within the three years preceding his application.
Key Issues
The primary issue revolved around whether the beneficiary was employed in a managerial or executive capacity overseas for the required one year in the three years preceding his entry into the United States. The petition was denied on the grounds that the beneficiary did not meet this criterion, as he spent the majority of the qualifying period in the United States, which does not count towards the required overseas employment.
USCIS Findings
The USCIS found that the petitioner failed to demonstrate the beneficiary’s eligibility under the EB-1C classification. Specifically, USCIS records showed that the beneficiary spent 893 days in the United States and only 272 days abroad during the relevant three-year period. Despite the petitioner’s arguments about the necessity of the beneficiary’s presence in the U.S. for business reasons, the USCIS upheld the requirement that the beneficiary must have been employed overseas for at least one year.
Supporting Evidence
The petitioner presented evidence of the beneficiary’s role in establishing a subsidiary in the United States and performing executive functions on behalf of the foreign employer. However, this evidence was insufficient to satisfy the regulatory requirement for one year of overseas employment.
Additional Notes
The petitioner argued against the applicability of a USCIS Policy Memorandum issued after the petition was filed, but the USCIS dismissed this argument as irrelevant to the case’s outcome. The focus remained on the petitioner’s failure to prove the required period of overseas employment.
Conclusion
Final Determination: The appeal was dismissed, and the initial denial of the petition was upheld due to the failure to meet the requirement of one year of overseas employment within the qualifying period.
