Date of Decision: July 18, 2019
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Business Development
Beneficiary Information
Profession: Director of Business Development
Field: Business Development
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The petitioner, a metal trading and construction company, filed an I-140 petition on behalf of the beneficiary, seeking classification under the EB-1C category as a multinational executive or manager. The petition aimed to permanently employ the beneficiary in the United States as the Director of Business Development.
Key Issues
The petition was initially denied due to the petitioner’s failure to establish that the beneficiary would be employed in a managerial capacity within the United States and also because the petitioner could not demonstrate the ability to pay the beneficiary’s proffered wage as of the filing date.
USCIS Findings
Upon appeal, the USCIS reviewed the case de novo and found that the record lacked sufficient evidence to prove that the petitioner was a U.S. employer eligible to file the petition. The decision highlighted a fundamental issue: the petition had been filed by the beneficiary’s foreign employer, rather than the prospective U.S. employer, which is a threshold requirement under the regulations.
Supporting Evidence
The appeal pointed to the petitioner’s combined net income and assets for 2016 and 2017 as evidence of their ability to pay the proffered wage. However, this evidence was not considered, given that the threshold issue regarding the petitioner’s eligibility to file the petition had not been resolved.
Additional Notes
The USCIS did not address whether the beneficiary’s prospective employment met the managerial capacity requirement, nor did it consider the petitioner’s ability to pay the wage due to the unresolved eligibility issue.
Conclusion
Final Determination: The case was remanded for further consideration, with the Director’s initial decision withdrawn.
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