Date of Decision: October 9, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Executive Management
Beneficiary Information
Profession: Chief Executive Officer (CEO)
Field: Executive Management
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a U.S.-based restaurant business, sought to permanently employ the beneficiary as a Chief Executive Officer (CEO) under the EB-1 classification for multinational managers or executives. The beneficiary was also the primary owner of both the petitioning company and a related foreign entity. The specific immigration benefit sought was to classify the beneficiary as an executive who would manage the U.S. entity in an executive capacity, having previously held a similar role abroad.
Key Issues
The primary issues identified in the denial were the petitioner’s failure to demonstrate that the beneficiary would be employed in an executive capacity in the U.S. and the inability to resolve inconsistencies regarding the beneficiary’s duties at the U.S. and foreign entities. Additionally, the petitioner failed to establish that the beneficiary was previously employed in an executive or managerial capacity abroad.
USCIS Findings
The USCIS and the Administrative Appeals Office (AAO) concluded that the petitioner did not provide sufficient evidence to establish that the beneficiary’s role in the U.S. would be primarily executive. Despite holding a senior position, the job description was vague and lacked clarity about the day-to-day executive-level duties. The AAO also found significant inconsistencies in the beneficiary’s concurrent roles with the U.S. and foreign entities, making it impossible to determine if the beneficiary’s duties for the petitioner would be executive in nature.
The AAO also noted that the petitioner did not adequately address or resolve the discrepancies between the job duties described for the U.S. and foreign positions. The petitioner’s organizational structure and staffing levels further complicated the case, as the small number of employees made it questionable whether the beneficiary could solely focus on executive tasks without engaging in operational duties.
Supporting Evidence
The petitioner submitted several documents, including a detailed job description, an organizational chart, and agreements between the U.S. and foreign entities. However, the evidence did not convincingly demonstrate that the beneficiary’s duties were primarily executive or that the inconsistencies between the various job descriptions were resolved.
Additional Notes
The petitioner cited previous AAO decisions to argue that small staff numbers should not disqualify the beneficiary’s executive role. However, the AAO distinguished these cases based on the specific facts and found that the petitioner had not met the burden of proof in this instance. Furthermore, the petitioner’s failure to address the beneficiary’s foreign employment on appeal was seen as an abandonment of that issue.
Conclusion
Final Determination: The appeal was dismissed. The petitioner did not establish that the beneficiary would be employed in a primarily executive capacity in the U.S., nor did they resolve the inconsistencies regarding the beneficiary’s roles between the U.S. and foreign entities.
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