dismissed EB-1C Case: Automotive Sales

U.S. Citizenship 
and Immigration 
Services 
In Re: 11855726 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 17, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, an auto and boat dealership, seeks to permanently employ the Beneficiary as its 
President I under the first preference immigrant classification for multinational executives or 
managers . Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C) . 
This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the 
United States to work in a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary was employed by a qualifying entity overseas for at least one year in the 
three years preceding his entry into the United States as a nonirnmigrant. In addition, the Director 
concluded that the Beneficiary had not been employed overseas by a qualifying entity in an executive 
capacity, and that the Petitioner had not established that the offered position was in an executive 
capacity. The Director further concluded that the Petitioner had not established its ability to pay the 
wage offered to the Beneficiary under 8 C.F.R. § 204.5(g)(2). 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
1 We note that the title of the Beneficiary's position is also stated as President and General Manager, President and Director , 
and President and Executive Director in the record . 
II. ANALYSIS 
The Petitioner asserts that the Beneficiary was previously employed by its parent company, I I 
.__ ____ _,~ in an executive capacity since January 2005, 2 and was transferred to his current position 
as its president in 2007. USCIS records show that the Petitioner first entered the United States in L­
lA status to work for the Petitioner on June 28, 2007. 3 
The sole issue we will address on appeal is whether the Petitioner has established that the Beneficiary 
was employed withl lfor one year in the three years prior to his entry as a nonimmigrant into 
the United States per 8 C.F.R. § 204.5(j)(3)(i)(B). 
If a beneficiary entered the United States to work for a qualifying entity as a nonimmigrant (for 
example in H-1 B or another work-authorized status), USCIS will reach back three years from the date 
of his or her admission to determine whether he or she had the requisite one year of employment. 
Matter of S-P- Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018); 8 C.F.R. § 204.5(j)(3)(i)(B). 
In his decision, the Director used the Beneficiary's entry in B-2 visitor status on January 14, 2006 as 
the end point of this three-year period (January 14, 2003 - January 13, 2006). However, since this 
~as not for the purpose of working for the same employer or for a subsidiary or affiliate of 
L___J as a nonimmigrant, we cannot use the date of this entry to determine the relevant three-year 
period during which the one year of foreign employment must have occurred. See id. Instead, we find 
that period to have run from June 28, 2004 to June 27, 2007, the day before his initial entry in L-lA 
status to work for the Petitioner. However, because the claimed one-year period of employment 
abroad (January 2005 - January 2006) falls well within both of the three-year periods as determined 
by either the Beneficiary's B-2 or L-lA entries, the fact that we disagree with the Director on the dates 
of the three-year period is inconsequential for purposes of this appeal and is made only for clarity. 
The issue is whether the Petitioner submitted sufficient evidence to demonstrate that the Beneficiary 
was employed abroad during the claimed one-year period (January 2005 - January 2006). 
The Director determined that because the organizational chart forl I submitted by the Petitioner 
did not list the Beneficiary at all, and because the record did not include pay stubs or tax returns 
showing that he was paid byl I the Petitioner had not established his employment with the 
company for one year in the relevant three year period. We note that the Petitioner submitted evidence 
in response to the Director's RFE which it described as payroll records. However, this evidence 
consists of a document listing the dates, check numbers, and bank account numbers for payments it 
2 Although a letter frorrj I stated that the Beneficiary had been in its employ in an executive caprity sinlce 1983, the 
record does not include documentation to support this statement or clarify the discrepancy between 's letter and 
those from the Petitioner. Further, the Petitioner does not argue on appeal that the Petitioner was employed in an executive 
capacity with I I prior to January 1, 2005. 
3 USCTS records also show that prior to this entry, U{CTS had denied twl previous petitions for _L-1 A non immigrant visa 
status by the Petitioner on the Beneficiary's behalf,__ _____ _,, denied on October 16, 2006 and! I 
I I denied on December 18, 2006) before approving a third petition on April 30, 2007 I }. A request 
to extend the Beneficiary's L-1 A nonimmigrant status was denied on June 27, 2008 I ~- In addition, 
prior to the denial of the instant petition on January 7, 2020, USCTS had denied two previous Form T-140 immirant visa 
petitions filed by the Petitioner on the Beneficiary's behalt: ,.___ _____ __,, denied on August 31, 2010 and I 
I I denied on March 21, 2012). We previously dismissed an appeal of the denial of the second immigrant visa 
petition ana a subsequent motion.__ _____ ~• dismissed on July 13, 2012 and.__ _____ _,, dismissed on 
December 21, 2018). 
2 
claims were made to the Beneficiary for employment throughout 2005. It is not signed or dated, there 
is no indication of its source or author, and it is not supported by bank statements showing that these 
transactions actually took place. 
The Director specifically requested that the Petitioner submit copies of the foreign employer's payroll 
records pertaining to the Beneficiary for the relevant one-year period. The evidence submitted by the 
Petitioner in response to the RFE does not constitute a payroll record or otherwise serve to show that 
the Beneficiary was employed b~ I during this period. On appeal, the Petitioner argues that this 
evide
1
nce, toglther with an employment contract between I I and the Beneficiary and two letters 
from one initially submitted and another in response to the Director's request for evidence 
(RFE), are sufficient to meet the regulatory requirement. However, we emphasize that failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(14). Given that the Petitioner claims that the Beneficiary was employed 
byl I pursuant to the employment contract from January 1, 2005 to January 1, 2006, it was 
reasonable for the Director to request evidence of payroll records pertaining to the Beneficiary for this 
period. If no payroll records are available, we note that the non-existence or other unavailability of 
required evidence creates a presumption of ineligibility. 8 C.F .R. § 103 .2(b )(2)(i). 4 
Further, the Petitioner has not explained on appeal why the Beneficiary does not appear onl ts 
organizational charts which were submitted initially and in ysponse Ito the Director's RFE. This 
evidence is inconsistent with the letters describing his role for and this inconsistency which 
was raised in the Director's decision has not been resolved on appeal with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For all of the reasons given above, we conclude that the Petitioner has not established that the 
Beneficiary was employed byl I for one year in the three years prior to his entry as an L-lA 
nonimmigrant. 
III. CONCLUSION 
The record does not establish that the Beneficiary was employed abroad for one year in the three years 
preceding his entry as an L-lA nonimmigrant employed by the Petitioner. The appeal will be 
dismissed for this reason. Also, as noted above, the Director also found that the Beneficiary's position 
abroad withl I was not in an executive capacity, nor was the offered position for the Petitioner 
in the United States in an executive capacity. Further, the Director found that the Petitioner had not 
established that it had the ability to pay the offered wage to the Beneficiary from the time of filing the 
petition. Because our findings regarding the Beneficiary's employment by a qualifying entity for one 
year in the three years preceding his entry as a nonimmigrant warrant dismissal of the appeal, we need 
not reach these additional issues, and therefore reserve them. 5 However, we briefly note that after 
review of the offered CEO position for the Petitioner, we agree with the Director's finding that the 
Beneficiary would not primarily serve in an executive capacity, as his duties primarily involve 
4 We also note that the Petitioner submitted! I payroll records for a period during which it does not claim that the 
Beneficiary was employed with the company, but does not explain the absence in the record of the same type ofrecord for 
the relevant one-year period. 
5 See INS v. Bagamasbad, 429 U.S. 24. 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
3 
performing operational tasks or those routine tasks necessary for the running of a small business, rather 
than the high-level duties inherent in an executive capacity position. 
ORDER: The appeal is dismissed. 
4