dismissed EB-1C Case: Construction Supplies

U.S. Citizenship 
and Immigration 
Services 
In Re: 26274404 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 21, 2023 
Form I-140, Petition for Multinational Managers or Executives 
The Petitioner , which sells construction supplies , seeks to permanently employ the Beneficiary as a 
manager under the first preference immigrant classification for multinational executives or managers. 
See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C. § 1153(b )(1 )(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 has been employed abroad, and will be employed in the United States, 
in a managerial or executive capacity . The matter is now before us on appeal. 8 C.F .R. § 103.3 . 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369 , 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review , 
we will dismiss the appeal. 
I. LAW 
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 affiliat e. Section 203(b)(l)(C) of the Act. 
The Form I-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). 
II. ANALYSIS 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
abroad, and will be employed in the United States, in a managerial or executive capacity. The 
Petitioner specifically refers to the Beneficiary's past and proposed employment as managerial, and 
therefore, we need not address the requirements for an executive capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
supervises and controls the work of other supervisory, professional, or managerial employees, or 
manages an essential function within the organization, or a department or subdivision of the 
organization; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). 
Regarding the Beneficiary's claimed employment abroad, the Petitioner stated that the Beneficiary 
worked for a company in Brazil calledl lfrom 2015 
until the Beneficiary entered the United States in June 2017. In denying the petition, the Director 
determined that "the record does not any written statements or documentation from indicating 
that the beneficiary worked for them in a primarily managerial capacity," and "no evidence was 
submitted establishing the relationship between the petitioner and the foreign entity(s). The record 
also does not include any evidence of organizational structure or staff the beneficiary managed during 
employment outside the United States." 
We agree with the Director that, for several reasons, the Petitioner has not shown the Beneficiary's 
claimed employment withOestablishes the Beneficiary's eligibility for the classification sought. 
The petitioning U.S. entity provided a statement describing the Beneficiary's claimed employment 
abroad, but did not explain how the author of the statement had knowledge of the Beneficiary's 
employment abroad. The Petitioner stated that the Beneficiary's duties "at the Brazilian affiliate ... 
were primarily managerial in nature." The Petitioner listed various responsibilities, stating, for 
instance, that the Beneficiary "was in charge of analysis of the operation system and destination of 
products and specialized services," and "was in charge of the establishment of operational objectives 
and work plans, as well as the delegation of assignment to subordinate employees." The statement 
lists several areas of responsibility, but does not describe the actual tasks that the Beneficiary 
performed or establish that the Beneficiary was able to delegate operational tasks to subordinate 
employees. As a result, the above job description is a general statement of the Beneficiary's authority 
that does not establish that he worked primarily as a manager. 
The Petitioner did not submit a letter from to confirm and describe the Beneficiary's employment 
there, as required by 8 C.F.R. § 204.S(g)(l). The Director requested "a statement from an authorized 
official of the company abroad" to confirm and describe the Beneficiary's claimed employment with 
The The Petitioner's response did not include any statement or documentation fro Instead, 
the Petitioner provided its own revised statement. As before, the statement focused on areas of 
responsibility rather than specific duties, and did not establish the subordinate personnel structure that 
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would have performed the operational tasks related to the responsibilities listed. The Petitioner's two 
general statements are not sufficient to show that employed the Beneficiary abroad in a qualifying 
managerial or executive capacity. 
In addition to showing qualifying duties, the petitioning U.S. employer must establish that it has a 
qualifying relationship with the beneficiary's employer abroad. A petitioner must show that the 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (e.g., a U.S. 
entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b )(1 )(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). In this proceeding, the Petitioner has not 
established that it has a qualifying relationship with Icon. 
In its initial statement, the Petitioner calledc=] its "Brazilian affiliate," but the Petitioner also referred 
to the "relationship between the parent and subsidiary," without specifying which company is the 
parent and which is the subsidiary. The Petitioner must resolve this discrepancy in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). As discussed below, the Petitioner has not provided the evidence necessary to resolve 
the discrepancy and meet its burden of proof. 
The Petitioner is a limited liability company (LLC) established in Florida in 2018. The record 
names two individual members of the LLC, each of whom owns a 50% interest. The Petitioner also 
submitted copies of a Portuguese-language document dated July 2017; the first page of a second, 
undated Portuguese-language document; and a "Share Sale and Purchase Agreement" dated April 
2018. None of these documents mentions and the Petitioner did not explain their relevance. 
The Portuguese-language documents do not include certified English translations as required by 
8 C.F.R. § 103 .2(b )(3 ), which greatly limits their evidentiary weight. The partial, undated document 
names a different company, I I and two individuals with the 
initials S.U.J. and E.A.S., neither of whom are members of the petitioning LLC. The July 2017 
document mentions the name of S.U.J. and one of the members of the petitioning LLC, and a U.S. 
company called That is not the name of the petitioning LLC, which came 
into existence a year after the date on this document. 
The English-language "Share Sale and Purchase Agreement" indicates that a member of the 
petitioning LLC purchased 30% ofl I from S.U.J. in April 2018. The 
document also mentions but not the petitioning 
LLC, which, as noted, did not exist prior to 2018. 
The documents that the Petitioner has submitted do not mention confirm !existence or its 
employment of the Beneficiary, or establish thatOhas a qualifying relationship with the Petitioner. 
Furthermore, qualifying employment abroad must have occurred within a specific period. If a 
beneficiary is outside the United States, then the Beneficiary must have been employed outside the 
United States for at least one year during the three years prior to the filing of the petition. 8 C.F.R. 
§ 204.5(j)(3)(i)(A). If the beneficiary is already in the United States working for the same employer 
or a related employer, then the beneficiary must have been employed abroad for at least one year in 
the three years preceding the beneficiary's entry as a nonimmigrant. 8 C.F.R. § 204.5(j)(3)(i)(B). 
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Neither of these conditions applies in this case. The record shows that the Beneficiary entered the 
United States in June 2017, more than four years before the Petitioner filed the petition in August 
2021. But the Beneficiary did not enter the United States to work for the Petitioner. The Beneficiary 
entered the United States as a B-2 nonimmigrant visitor in June 2017, and changed status to the F-2 
spouse of an F-1 nonimmigrant student in February 2019. He was still in F-2 status when the Petitioner 
filed the petition on August 26, 2021. B-2 and F-2 nonimmigrants are not permitted to work in the 
United States. See 8 C.F.R. §§ 214.l(e), 214.2(f)(15)(i). Therefore, the Beneficia1y was not 
authorized to work in the United States between 2017 and 2021. 
The Petitioner also claimed that the Beneficiary "continued working for the [petitioning] U.S. 
employer ... as a sub-contractor. In between jobs the beneficiary has also worked as a manager for 
other entities." The Petitioner asserted that the Beneficiary would "properly be included in the 
[Petitioner's] payroll" after approval of the petition. As a subcontractor, the Beneficiary would not 
have been the Petitioner's employee. Even then, the Petitioner has not submitted documentation to 
show that the Beneficiary performed intermittent contract work for the Petitioner in the United States. 
The Petitioner has not met its burden of proof to show that the Beneficimy was working for the 
Petitioner in the United States from 2017 to 2021. 
A break in qualifying employment longer than two years will interrupt a beneficiary's continuity of 
employment with the petitioner's multinational organization. Such breaks may include, but are not 
limited to, intervening employment with a nonqualifying U.S. employer or periods of stay in a 
nonimmigrant status without work authorization. Matter of S-P-, Inc., Adopted Decision 2018-01 4 
(AAO Mar. 19, 2018). The Beneficiary was in the United States without employment authorization 
for over four years at the time the Petitioner filed the petition. Given this lengthy gap in qualifying 
employment, the Beneficiary will not be eligible for the classification sought until he departs the 
United States and accumulates at least a year of qualifying employment abroad. 
On appeal, the Petitioner disputes the Director's "erroneous decision," stating that it "has sustained its 
burden of proving that [the Beneficiary's] duties were 'primarily' managerial," and that it had 
submitted "[s]ubstantial supporting documentation establishing he delegated the company's 
regulatory tasks to subordinates." The Petitioner does not elaborate or identify the previously 
submitted evidence to which it refers. A section of the Petitioner's appellate brief bears the heading 
"The Relationship Between the United States Petitioner and the Foreign Employer and Managerial 
Functions," but that section of the brief does not address, explain, or mention the Petitioner's claimed 
relationship with 
As shown above, the record does not establish that employed the Beneficiary in Brazil in a 
managerial or executive capacity; that has a qualifying relationship with the Petitioner; or that 
the Beneficiary worked for for at least one year during the relevant three-year period before the 
filing of the petition. For all these reasons, we agree with the Director that the Petitioner has not 
established that the Beneficiary's claimed employment abroad qualifies him for the classification 
sought in this proceeding. 
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III. CONCLUSION 
The Petitioner has not established that the Beneficiary was employed in a managerial or executive 
capacity with a qualifying employer abroad. This conclusion determines the outcome of the appeal. 
Therefore, we reserve the remaining issue regarding the Beneficiary's proposed employment in the 
United States. 1 
ORDER: The appeal is dismissed. 
1 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); see also Matter olL-A-C-, 26 I&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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