Date of Decision: August 6, 2020
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-1C (Multinational Managers or Executives)
Field of Expertise: Semiconductor and Solar Cell Processing Equipment Manufacturing
Beneficiary Information
Profession: Vice President
Field: Semiconductor and Solar Cell Processing Equipment Manufacturing
Nationality: Chinese
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Case Overview
The Petitioner is an equipment manufacturer specializing in semiconductor and solar cell processing. They sought to employ the Beneficiary, a Chinese national, as a Vice President under the EB-1C classification for multinational managers or executives. This visa classification is intended to allow a U.S. employer to transfer a qualified foreign employee to work in an executive or managerial capacity in the United States.
Key Issues
The petition was initially denied due to two primary issues: the Petitioner’s inability to prove its ability to pay the Beneficiary’s wage at the time of filing and the failure to meet the foreign employment criteria. Specifically, the Director found that the qualifying relationship between the Petitioner and the Beneficiary’s foreign employer had been established less than one year before the filing, thus not meeting the requirement of one year of foreign employment with a qualifying related entity.
USCIS Findings
Upon appeal, the Administrative Appeals Office (AAO) determined that the Director had incorrectly conflated two separate eligibility factors. While the qualifying relationship had indeed existed for less than one year at the time of filing, this was not relevant to the Petitioner’s eligibility under the regulations. The AAO clarified that the necessary qualifying relationship need only exist at the time of filing and during the processing of the petition, not necessarily for the full duration of the Beneficiary’s foreign employment. Consequently, the AAO withdrew the Director’s decision and remanded the case for further consideration, particularly to evaluate the new evidence regarding the Petitioner’s ability to pay.
Supporting Evidence
The appeal included new evidence aimed at addressing the Petitioner’s ability to pay the Beneficiary’s wage, which was previously in question. This evidence was deemed significant enough to warrant a remand for further review by the Director.
Additional Notes
This case highlights the importance of correctly interpreting eligibility requirements, particularly regarding the timing of qualifying relationships and foreign employment. The remand indicates that with appropriate evidence, even initial denials may be successfully contested.
Conclusion
Final Determination: The initial denial was withdrawn, and the case was remanded for further proceedings to reassess the evidence presented on appeal.
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