Date of Decision: October 1, 2020
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Structural Engineering Design Consulting
Beneficiary Information
Profession: Deputy CEO
Field: Structural Engineering Design
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a structural engineering design consulting firm, filed a Form I-140 petition seeking to permanently employ the beneficiary as its Deputy CEO under the EB-1C classification for multinational executives or managers. The beneficiary, who has been working for the petitioner in L-1A nonimmigrant status since October 2018, was intended to transfer to the United States to continue rendering managerial or executive services.
Key Issues
The Director of the Nebraska Service Center identified several key issues in denying the petition:
- Lack of Evidence of Executive Capacity: The record did not sufficiently demonstrate that the beneficiary had been employed abroad or would be employed in the United States in a primarily executive capacity.
- Doing Business Requirement: The petitioner failed to provide adequate evidence that it was actively conducting business.
- Ability to Pay: The petitioner did not establish its ability to pay the proffered wage from the priority date onward, particularly in light of the fact that the beneficiary was simultaneously employed by the foreign entity and not on the U.S. payroll.
- Employment History: The petitioner did not provide conclusive details regarding the beneficiary’s continuous full-time employment with a qualifying organization in the three years preceding the petition’s filing.
USCIS Findings
Upon de novo review, the USCIS concluded that the petitioner failed to meet the burden of proof necessary for the requested immigration benefit. The key findings included:
- Inability to Pay: The petitioner did not demonstrate its continuing ability to pay the proffered wage of $180,000, particularly as the financial documents provided were unaudited and insufficient under the regulations.
- Insufficient Executive Capacity: The petition did not establish that the beneficiary’s role, either abroad or in the U.S., was primarily executive in nature.
- Failure to Provide Necessary Details: The record contained conflicting information about the beneficiary’s current employer and did not include essential details regarding the beneficiary’s transfer to the petitioner’s U.S. entity.
Supporting Evidence
Key evidence considered included:
- Unaudited Financial Statements: Submitted financial documents were unaudited, leading USCIS to discount them as unreliable.
- Employment History Documentation: The petitioner’s submissions lacked clarity regarding the beneficiary’s employment with the foreign entity and the dates of employment that qualified the beneficiary for the EB-1C classification.
Additional Notes
USCIS highlighted that for the petitioner to succeed in future petitions, they must ensure that all financial documents are audited and that the evidence provided clearly demonstrates both the ability to pay and the beneficiary’s executive role. The lack of detailed and credible documentation was a significant factor in the denial.
Conclusion
Final Determination: The appeal was dismissed due to the petitioner’s failure to demonstrate by a preponderance of the evidence that it had the ability to pay the proffered wage, and to establish the beneficiary’s qualifying executive role.
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