Date of Decision: February 7, 2019
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: General Management
Beneficiary Information
Profession: General Manager
Field: General Management
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Approved
Case Overview
In this case, the petitioner, a wholesaler of diving equipment, sought to permanently employ the beneficiary as its General Manager under the EB-1C classification for multinational executives or managers. This immigration benefit allows U.S. employers to transfer a qualified foreign employee to the United States to work in an executive or managerial capacity.
Key Issues
The primary issue in this case was whether the beneficiary’s proposed employment with the U.S. entity would be in a managerial capacity. The Director of the Nebraska Service Center denied the petition, concluding that the petitioner did not establish this requirement.
USCIS Findings
The Director’s decision focused on the staffing structure of the petitioner and the placement of the beneficiary concerning subordinate employees. The Director also questioned the use of contractors instead of in-house employees. On appeal, however, the petitioner argued that the Director had made critical factual errors and did not consider the totality of the evidence presented. The petitioner clarified the role of contractors in its business model and supplemented the record with additional evidence of its staffing at the time of filing and its organizational growth.
Upon de novo review, the Administrative Appeals Office (AAO) agreed with the petitioner’s assessment. The AAO found that the Director erroneously applied the definition of managerial capacity to the beneficiary’s subordinates and overlooked the statutory definition that should only be applied to the beneficiary. Consequently, the AAO determined that an adverse decision was not warranted.
Supporting Evidence
Key evidence considered in the decision included employment records, organizational charts, and explanations regarding the use of contractors within the company. The additional evidence provided by the petitioner demonstrated the company’s staffing levels and growth, reinforcing the argument that the beneficiary’s role was indeed managerial.
Additional Notes
The AAO emphasized the importance of applying the correct legal parameters when evaluating the managerial capacity of the beneficiary, rather than extending these requirements to subordinate employees.
Conclusion
Final Determination: The appeal was sustained, and the petition was approved, allowing the beneficiary to be employed in the United States as a General Manager under the EB-1C classification.
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