dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : DEC . 19, 2023 In Re: 28882293 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner , an IT company, seeks to pennanently employ the Beneficiary in the position of senior 
manager advanced technology under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(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 an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition , concluding that the Petitioner did not 
establish that: (1) the Beneficiary's proposed employment would be in a managerial or executive 
capacity; (2) the Beneficiary's employment abroad was in a managerial or executive capacity ; (3) the 
Petitioner was doing business; and (4) the foreign employer continues to do business. 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 novo . Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b )(1)(C) of the Act makes an immigrant visa 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. 
The Form 1-140, Immigrant Petition for Alien Workers , 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. § 204.5G)(3). In addition, a petition for a multinational 
manager or executive must be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage from the time the petition 1s filed and continuing through 
adjudication. See 8 C.F.R. § 204.5(g)(2). 
II. PROCEDURAL HISTORY 
On the Form I-140, the Petitioner indicated that it was an IT company established in 2006 with 53 
employees and a gross annual income of approximately $5 .4 million. It stated that the Beneficiary 
would be employed in the position of "Senior Manager Advanced Technology." 
Finding the initial evidence insufficient to warrant approval, the Director issued a request for evidence 
(RFE). The Director noted that the record as constituted did not establish that a qualifying relationship 
existed between the Petitioner and the Beneficiary's foreign employer, or that the Beneficiary had 
been employed abroad and would be employed in the United States in a managerial or executive 
capacity. The Director also observed that the record did not demonstrate that the Petitioner was doing 
business. 
In response, the Petitioner addressed the Director's concerns and submitted fourteen exhibits which 
included documentation pertaining to both the Petitioner's and the foreign employer's ownership, the 
duties of the Beneficiary in the U.S. and abroad, and organizational charts, staffing information, and 
payroll records for both companies. 
The Director subsequently issued a notice of intent to deny (NOID) the petition. In the notice, the 
Director cited to derogatory information newly obtained after USCIS site visits to the foreign employer 
and the Petitioner's U.S. premises, as well as an investigation conducted by the U.S. Department of 
State that raised questions regarding the validity of the Petitioner's claimed in-house projects, the 
foreign employer's staffing levels, and the overall business operations of both entities. The Director 
requested independent objective evidence to clarify the discrepancies in staffing and the deficiencies 
in the evidence of record to demonstrate that the Petitioner and the foreign employer were doing 
business as claimed. In addition, the Director again requested additional evidence in support of the 
Beneficiary's employment in a qualifying capacity both in the U.S. and abroad. 
In response to the NOID, the Petitioner submitted a detailed letter supported by 22 exhibits, which 
included client letters, contracts, bank statements, invoices, employee attestations, U.S. federal tax and 
wage statements, and corporate documentation. The Petitioner asserted that the evidence provided in 
response to the NOID, in addition to the "600+ pages" of documentation submitted in response to the 
RFE, demonstrated that it met all eligibility requirements. After considering the Petitioner's response 
and supporting documentation, the Director denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary's employment abroad and proposed U.S. employment was in a 
managerial or executive capacity or that the Petitioner and the foreign employer were doing business. 
On appeal, the Petitioner asserts that the Director failed to apply the preponderance of the evidence 
standard, and asserts that the abundance of documentation provided prior to adjudication demonstrates 
that the Petitioner has met its evidentiary burden. In support of this assertion, the Petitioner resubmits 
copies of documentation previously submitted in response to the RFE and the NOID, and reiterates 
that it has satisfied all evidentiary requirements. 
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To determine whether a petitioner has met the burden under the preponderance standard, we consider 
not only the quantity, but also the quality (including relevance, probative value, and credibility) of the 
evidence. Matter ofChawathe, 25 I&N Dec. at 376; Matter ofE-M-, 20 I&N Dec. 77, 79-80 (Comm'r 
1989). Here, for the reasons discussed below, we conclude that the Director properly analyzed the 
Petitioner's extensive documentation and weighed the evidence to evaluate the Petitioner's eligibility 
by a preponderance of the evidence. We therefore adopt and affirm the Director's decision. See 
Matter ofBurbano, 20 I&N Dec. 872,874 (BIA 1994); see also Giday v. INS, 113 F.3d 230,234 (D.C. 
Cir. 1997) (noting that the practice of adopting and affirming the decision below has been "universally 
accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st 
Cir. 1996) (joining eight circuit courts in holding that appellate adjudicators may adopt and affirm the 
decision below as long as they give "individualized consideration" to the case). 
First, the Director thoroughly reviewed and analyzed the Petitioner's claim that the Beneficiary's U.S. 
employment would be in a qualifying managerial or executive capacity as defined at sections 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 110l(a)(44)(A)-(B). The Director evaluated the 
Beneficiary's position descriptions, evidence of the nature and scope of the Petitioner's business, and 
documentation relating to the company's staffing and organizational structure, noting that 
discrepancies identified during the USCIS site visit and consular investigation regarding staffing levels 
and in relation to some of the Beneficiary's subordinate positions remained unresolved. The Director 
concluded that despite its submission of extensive documentation, the Petitioner did not show that it 
had sufficient staff to relieve the Beneficiary from involvement in the day-to-day operational, 
administrative, and other non-qualifying tasks associated with operating the business, and further 
determined that his position appeared akin to the of a first-line supervisor. The Director again pointed 
to discrepancies between the Petitioner's claimed staffing levels and payroll records, noting that the 
record did not clearly identify the Beneficiary's subordinate staff at the time of filing despite affording 
the Petitioner the opportunity to remedy the noted incongruities prior to adjudication. Accordingly, 
the Director determined that the Petitioner did not meet its burden to establish that the Beneficiary's 
actual tasks would be primarily managerial or executive in nature, and we concur with that 
determination. The lack of independent, objective evidence clarifying the subordinate staffing 
structure, when considered with the other discrepancies and inconsistencies mentioned by the Director, 
undermines the Petitioner's assertion that the Beneficiary would be relieved from significant 
involvement in the day-to-day operations of its business. 1 
Similarly, in evaluating the Beneficiary's employment abroad, the Director noted discrepancies 
between the foreign employer's organizational chart and payroll records, and further noted insufficient 
evidence to demonstrate that several of the Beneficiary's claimed subordinates were remitted a wage. 
Citing these unresolved discrepancies, as well as the derogatory findings from the USCIS site visit 
1 We acknowledge that the Beneficiary is also the beneficiary of an approved L-1 A non immigrant petition that was 
reaffirmed after a notice ofrevocation raised issues regarding the proposed U.S. position. While we note the Petitioner's 
assertions that the reaffirmation of that petition should weigh favorably in the adjudication of the instant petition, each 
petition is separate and independent and must be adjudicated on its own merits, under the corresponding statutory and 
regulatory provisions. As noted, the issues identified in the notice of intent to revoke the L-1 A petition's approval differ 
from the issues identified in the instant petition as a result of the USCTS site visit and consular investigation. Therefore, 
the fact that the Beneficiary was granted L-lA status is not binding, because the facts here do not support approval of the 
immigrant petition. Further, we are not bound by a decision of a service center or district director. See La. Philharmonic 
Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), ajf'd, 248 F.3d 1139 (5th Cir. 2001). 
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regarding staffing levels, the Director clearly articulated the reasons why the record did not 
demonstrate that the Beneficiary had been employed abroad in a qualifying capacity. In addition, the 
Director identified the documentary evidence reviewed and considered in reaching this determination. 
The Director farther explained in detail why the record was insufficient to establish that both the 
Petitioner and the foreign employer were doing business. The Director acknowledged the sampling 
of invoices provided by the Petitioner in support of its business operations, but determined that such 
minimal documentation was insufficient to demonstrate that the Petitioner had been and continued to 
be engaged in the regular, systematic and continuous provision of goods and services. The Director 
again cited to the derogatory information raised in the NOID as a result of the site visit and consular 
investigation, concluding that the Petitioner did not resolve the noted discrepancies with independent, 
objective evidence as requested. 
Regarding the foreign employer's business operations, the Director acknowledged the substantial 
amount of documentary evidence submitted, including but not limited to corporate documentation, 
audited financial statements, and samplings of invoices. The Director concluded, however, that while 
such evidence demonstrated that the foreign entity was still in existence, it was insufficient to 
demonstrate that it continued to be engaged in the regular, systematic and continuous provision of 
goods and services. The Director farther noted that the derogatory information obtained during the 
site visit, which concluded that the foreign employer had no employees at the time the visit was 
conducted, had not been sufficiently resolved or refuted with independent, objective evidence. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
On appeal, the Petitioner generally challenges the denial by contending that the Director did not apply 
the preponderance of the evidence standard, but it does not articulate with any specificity how the 
Director failed to do so. The Petitioner also asserts that the Director's determinations regarding the 
unresolved evidentiary discrepancies were erroneous. However, as noted by the Director, the 
Petitioner did not submit independent, objective evidence to resolve the noted discrepancies prior to 
adjudication, and it has not submitted sufficient evidence to resolve these discrepancies on appeal. See 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988) (stating that a petitioner must resolve 
discrepancies in the record with independent, objective evidence pointing to where the truth lies). 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. Id.; see also Matter of O-M-0-, 
28 I&N Dec. 191, 197 (BIA 2021) ("by submitting fabricated evidence, the appellant compromised 
the integrity of his entire claim") (cleaned up). The Petitioner's general objections in support of the 
appeal do not otherwise contest the Director's reasoning or conclusions regarding the insufficiency of 
the evidence and the unresolved discrepancies and derogatory information in the record. 
For the reasons discussed, the Petitioner has not met its burden under the preponderance standard. The 
the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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