Date of Decision: October 14, 2020
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Software Services
Beneficiary Information
Profession: President & Chief Executive Officer
Field: Software Services
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The Petitioner, a software services company, sought to employ the Beneficiary as its President & Chief Executive Officer under the EB-1C immigrant classification for multinational executives or managers. The petition was filed to secure a permanent residency status for the Beneficiary, who was also the sole owner of the U.S. entity.
Key Issues
The primary issue leading to the denial was the failure to establish a bona fide employer-employee relationship between the Petitioner and the Beneficiary. The Director concluded that the Beneficiary’s complete control over the U.S. entity, due to his sole ownership, negated the possibility of a true employer-employee relationship, as there was no oversight or authority capable of assigning projects or terminating his employment.
USCIS Findings
USCIS based its decision on the interpretation of the employer-employee relationship, applying common law principles. However, while the appeal was pending, USCIS rescinded policy memoranda that influenced this decision, following the U.S. District Court’s ruling in ITServeAlliance, Inc. v. Cissna. The court found that there was no regulatory basis for the stringent standards applied to determine the employer-employee relationship in such cases.
Supporting Evidence
The case hinged on the ownership structure of the U.S. entity and the lack of independent oversight over the Beneficiary’s role. However, the broader legal context of the ITServe decision influenced the remand, as it highlighted the absence of specific regulatory standards governing this aspect of the petition.
Additional Notes
USCIS recognized the broader implications of the ITServe ruling and remanded the case to the Director to reconsider the petition in light of the rescinded policy guidance, allowing for the possibility of a new adjudication under potentially different standards.
Conclusion
Final Determination: The Director’s initial denial was withdrawn, and the matter was remanded for further proceedings.
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