Date of Decision: November 17, 2016
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: President and CEO – Soap and Air Freshener Industry
Beneficiary Information
Profession: President and Chief Executive Officer
Field: Soap and Air Freshener Industry
Nationality: [Not Specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Case Overview
The petitioner, F-USA LLC, a company that sells soaps and air fresheners, sought to permanently employ the beneficiary as its President and Chief Executive Officer under the EB-1C classification for multinational executives or managers. This visa classification is designed for U.S. employers wishing to transfer a qualified foreign employee to the United States to work in a managerial or executive capacity. However, the Texas Service Center Director denied the petition due to various deficiencies in the evidence provided, leading to an appeal which was ultimately dismissed.
Key Issues
The primary issues that led to the denial of the petition included:
- Employment in Managerial or Executive Capacity: The Director found insufficient evidence that the beneficiary was employed in a managerial or executive capacity abroad and would continue in such a role in the U.S.
- Doing Business Requirement: The petitioner failed to establish that it had been doing business for at least one year prior to filing the petition.
- Employer-Employee Relationship: There were concerns regarding the qualifying relationship, as the beneficiary was the sole owner of both the foreign company and the U.S. petitioner, raising doubts about the employer-employee dynamic.
- Ability to Pay the Beneficiary’s Wage: Initially, the petitioner did not provide sufficient evidence of its ability to pay the proposed wage, though this was later addressed on motion.
USCIS Findings
The USCIS concluded that the petitioner did not satisfy the necessary legal and evidentiary requirements for the EB-1C classification. Specifically, the petitioner failed to prove that the beneficiary had been employed in a qualifying managerial or executive role abroad or would be so employed in the U.S. Moreover, the petitioner could not demonstrate that it had been conducting business in a regular, systematic, and continuous manner for the required period. Additionally, the lack of a clear employer-employee relationship due to the beneficiary’s ownership of both the U.S. and foreign entities further complicated the case.
Supporting Evidence
Key evidence considered included the petitioner’s tax returns, organizational documents, and correspondence with prospective clients. However, much of this evidence was either insufficient or did not meet the requirements to establish the petitioner’s claims, particularly regarding the doing business criterion and the managerial/executive role of the beneficiary.
Additional Notes
The USCIS also highlighted that the petitioner’s arguments on motion did not address the core deficiencies of the initial petition. While some new evidence was provided, it did not substantiate the petitioner’s claims regarding the continuous business operations or the managerial capacity of the beneficiary.
Conclusion
Final Determination: The appeal was dismissed, and the petition remained denied based on multiple grounds, including the failure to establish a qualifying managerial or executive role, continuous business operations, and a legitimate employer-employee relationship.
