Date of Decision: May 5, 2017
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Management
Petitioner Information
Profession: Regional Manager
Field: Management
Nationality: Not specified
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Remanded
Evidentiary Criteria Analysis
Criteria Met:
Consistent Employment History: The petitioner provided evidence of the beneficiary’s long-term employment with the parent company and subsequent transfer to the U.S. under an L-1A visa.
Documentation of Role Change: The petitioner submitted a letter indicating a change in the beneficiary’s role from executive positions to regional manager.
Criteria Not Met:
Bona Fide Job Opportunity: The petitioner failed to demonstrate that a genuine job opportunity existed for U.S. workers due to the beneficiary’s significant control and involvement in the company.
Disclosure of Employment Role: The petitioner did not adequately disclose the beneficiary’s previous executive roles in the labor certification process.
Key Points from the Decision
Proposed Endeavor:
The beneficiary was proposed to manage the sales activities of the petitioner, establish sales objectives and goals, and control expenditures to conform to the budgetary requirements of the parent company.
Substantial Merit and National Importance:
The petitioner showed that the beneficiary’s role is crucial for the establishment and growth of the company’s U.S. business. However, the company’s dependence on the beneficiary raised questions about the job’s availability to U.S. workers.
Supporting Evidence:
The evidence included labor certification documents, employment history, and a letter from the parent company’s president. Key points highlighted the beneficiary’s extensive managerial experience and responsibility for U.S. operations.
Quotes from the documentation emphasized the beneficiary’s critical role in both the parent and subsidiary companies.
Inconsistencies in Proposed Endeavor:
There were inconsistencies in the documentation of the beneficiary’s roles and responsibilities, particularly between the labor certification and the L-1A petition, suggesting potential misrepresentation.
Supporting Documentation
Letters of Intent:
Letters from the parent company’s president detailing the beneficiary’s transition from executive roles to regional manager and the delegation of executive responsibilities to another individual.
Business Plan:
The petitioner’s strategic plan for establishing and growing U.S. operations, focusing on the beneficiary’s role in sales and budget management.
Advisory Letter:
A letter supporting the petitioner’s claims regarding the beneficiary’s qualifications and importance to the company.
Any Other Supporting Documentation:
Additional documentation such as organizational minutes, tax returns, and corporate filings that demonstrated the beneficiary’s involvement in the company’s operations.
Conclusion
Final Determination: The appeal was remanded. The petitioner did not establish that a bona fide job opportunity was available to U.S. workers, and the Director’s finding of material misrepresentation requires further investigation.
Reasoning:
The decision to remand was based on the need for additional evidence to assess the validity of the petitioner’s claims and to determine whether the labor certification process was conducted in good faith.
