Date of Decision: May 30, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Dairy Products Manufacturing and Distribution
Beneficiary Information
Profession: Sales and Marketing Manager
Field: Dairy Products Manufacturing and Distribution
Nationality: Not Specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Dismissed
Case Overview
The petitioner, a manufacturer and distributor of dairy products, sought to permanently employ the beneficiary as its sales and marketing manager under the EB-1C classification for multinational executives or managers. The Director of the Texas Service Center denied the petition, concluding that the petitioner did not establish a qualifying relationship with the beneficiary’s employer abroad and failed to demonstrate its ability to pay the beneficiary’s proffered wage.
On appeal, the petitioner provided a brief disputing both grounds for denial. The petitioner argued that it derived an affiliate relationship with the beneficiary’s foreign employer by virtue of collective ownership by the same four individuals who own the majority of the foreign entity’s shares. Additionally, the petitioner challenged the Director’s analysis of its ability to pay the proffered wage.
After a de novo review, the Administrative Appeals Office (AAO) found that the petitioner successfully demonstrated its ability to pay the proffered wage at the time of filing, leading to the withdrawal of the Director’s decision on that specific issue. However, the AAO upheld the denial based on the failure to establish a qualifying relationship between the petitioner and the beneficiary’s foreign employer.
Key Issues
The primary issue was whether the petitioner could demonstrate a qualifying relationship between the U.S. petitioner and the beneficiary’s foreign employer. The AAO determined that the petitioner failed to establish that the foreign entity and the U.S. petitioner were “affiliates” as required by the regulations, due to differences in ownership structure and control.
USCIS Findings
The AAO found that the petitioner did not provide sufficient evidence to establish that the U.S. petitioner and the foreign entity were owned and controlled by the same individuals in approximately the same proportions. The AAO also noted that the petitioner did not provide adequate documentation to support its claims regarding the ownership structure of the foreign entity.
Supporting Evidence
The petitioner submitted ownership charts, corporate documents, and financial records, but these were found to be insufficient and inconsistent with the petitioner’s claims.
Additional Notes
The AAO emphasized that establishing a qualifying relationship under the EB-1C classification requires clear and consistent evidence of common ownership and control between the U.S. petitioner and the foreign entity.
Conclusion
Final Determination: The appeal was dismissed. The petitioner failed to establish that it had a qualifying relationship with the beneficiary’s foreign employer as required for the EB-1C classification.
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